1. The point that falls for determination in this revision is, whether a document which requires to be stamped under S. 35 of the Stamp Act but not stamped, and is marked in evidence, could be refused to be acted upon by the court in view of S. 36 of the Stamp Act.
2. The relevant facts in brief which led to this revision are: The respondent-Bank filed a suit against the defendants, petitioners herein, for the recovery of a debt due under an equitable mortgage. During the course of trial when D. W. 1 who is the 1st defendant, was under examination, a document said to be an agreement of partition was got produced through him and the same was marked as Ex. B-2. Thereafter, it was objected to by the learned counsel for the plaintiff on the ground that the document required registration and that, unless stamp duty and penalty was paid, the document is not admissible in evidence. Before commencing cross-examination, the learned counsel again raised the objection to the marking of Ex. B-2. Then the learned counsel for the defendants contended that when once a document was marked and admitted, the question of levying stamp duty and penalty did not arise. The Court, however, rejected the objection by observing that , after the document was marked, the learned counsel for the plaintiff raised the objection regarding the admissibility, and therefore, no stamp duty need be collected as the document was already said to be admitted in evidence. Against that, the plaintiff-respondent preferred C.R.P. No. 3541 of 1977 to this Court. This Court dismissed the revision petition observing as under:
'Whether the objection was taken at the very time of marking of the document or not, I do not think that the document can be admitted in evidence by the learned Subordinate Judge as it is not properly stamped and no proper penalty is paid by the party tendering it. Regardless of whether the document was marked as an exhibit or not it cannot be received in evidence in view of the express prohibition contained in S. 33 of the Stamp Act. In other words, the payment of the stamp duty and 10 times penalty is a condition precedent for the said document being received in evidence by the Court. This regardless of the question whether the objection was raised at the stage when the document was being marked or not, this document cannot be received in evidence at all before the stamp duty and penalty is paid by the party tendering it as required by S. 35 of the Stamp Act. The question of adequate duty and penalty may be gone into by the learned Principal Subordinate Judge if objection is raised by the revision petitioner herein as to the receiving of that document into evidence. With the above observations, the revision petition is dismissed.'
3. Once again when the case was taken up for trial, the plaintiffs counsel raised the objection that Ex. B-2 document cannot be received in evidence unless and until the stamp duty and penalty is paid. Thereafter on hearing the arguments advanced by both the parties, the learned Subordinate Judge held that Ex. B-2 document cannot be acted upon unless the stamp duty and penalty is paid. The learned Subordinate Judge further observed that though the revision petition has been dismissed (it was) not on merits, but on the technical ground that a revision under S. 115, C.P.C. did not lie, as receiving of a document in the course of evidence cannot be treated as an order by which 'any case' can be said to have been decided. On the other hand, the revisional court, the learned Subordinate Judge further observed, clearly held that the document, Ex. B-2 cannot be received in evidence at all before the stamp duty and penalty is paid by the party tendering it as required by S. 35 o the Stamp Act.
4. The learned counsel for the petitioner Sri N. V. Ranganathan, raised the following contentions herein:
(1) When once the document is admitted in evidence, even if that document requires stamp duty and penalty to be paid, the admission cannot be called in question on the ground that the instrument has not been duly stamped within the meaning of Section 36 of the Stamp Act.
(2) Any observations, made in C.R.P. No. 3541/77 are at the most only obiter dicta, as they have no binding force when once the C.R.P. has resulted in dismissal of the same.
5. Taking the second point for consideration, the arguments of the learned counsel for the petitioners are that the High Court, while dismissing C.R.P. No. 3541 of 1977 holding that the revision does not lie against an order by which the document is marked and admitted in evidence, neverthless, exceeded its jurisdiction by making certain observations, viz., that the document, even if admitted in evidence, will have to be collected. The counter-arguments of Smt D. Prasanna Kumari, learned counsel for the respondent, are that, no doubt, the revision was dismissed, but while dismissing the revision petition, a binding observation has been made by the learned Judge in C.R.P. No. 3541 of 1977, namely.
'Regardless of whether the document was marked as an exhibit or not it cannot be received in evidence in view of the express prohibition contained in Section 33 of the Stamp Act. In other words, the payment of the stamp duty and ten times penalty is a condition precedent for the said document being received into evidence by the Court, xx xx xx. The question of adequate duty and penalty may be gone into by the learned Principal Subordinate Judge if objection is raised by the revision petitioner herein as to the receiving of that document into evidence.'
The Privy Council, in Maharaja of Jeypore v. Gunupuram Deenabandhu Patnaick ( (1905) ILR 28 Mad 42) where the High court by consent of parties transferred a suit brought by the appellant from the Agency Court at Vizagapattam to the District Court, and afterwards decided that nowithstanding the consent they had no jurisdiction to transfer a suit, held that the decision of the District Court dismissing the suit, having been adjudged by the High Court to be without jurisdiction, could not be treated as being res judicata in a subsequent suit by the appellant in the Agency Court on the same cause of action.
6. In this case, the learned Judge in C.R.P. No. 3541 of 1977 has held that, by admitting or rejecting a document in evidence, it cannot be said that a 'case' has been decided within the meaning of Section 115 of the Civil P. C. After analysing the case-law cited before him, the learned Judge eventually held that no revision lay in the instant case. Having categorically held that the revision was not maintainable, any observation, even if it could be taken as having any binding nature, cannot be held to be a decision which could bind that parties. No doubt, the learned Judge held that the document cannot be admitted in evidence unless stamp duty as well as penalty is paid. But those observations are of no avail as they have been made in the exercise of a jurisdiction which did not vest in the learned Judge. Therefore, they cannot be said to be amounting to res judicata and will not bind the learned Principal Subordinate Judge while again trying the case. The ratio as laid down by the Privy Council in the aforesaid citation is quite on the point, and, on the basis of the said decision, I have no hesitation to hold that the observations made by this Court in C.R.P. No. 3541 of 1977 are not of binding nature and, therefore, the same cannot be termed as res judicata.
7. Coming to the first point, viz., when once the document is admitted in evidence, even if that document requires stamp duty and penalty to be paid, the admission cannot be called in question on the ground that the instrument has not been duly stamped within the meaning of S. 36 of the Stamp Act; Sri N. V. Ranganathan, learned counsel for the petitioners, contends that when once the document has been admitted in evidence and marked as Ex. B-2 in this case, it will not be any more open to the other side or to the court to seek to impose any stamp duty and penalty. S. 36 of the Stamp Act, according to the learned counsel, is complete answer to the said argument.
8. The counter-argument of the learned counsel for the respondent is that the objection was raised by the plaintiff almost simultaneously at a time when the document was sought to be marked through DW 1 as it is clear from the finding given by the learned Principal Subordinate Judge and, therefore, it should be taken as though it has been taken just at a time when the document was sought to be marked, and, even if the Presiding Officer marked it despite objection, it is of little or no assistance and hence S. 36 of the Stamp Act cannot come to the aid of the petitioners herein.
9. To analyse the arguments, the relevant provisions of Ss. 33, 35 and 36 of the Stamp Act be noticed:
'33. Examination and impounding of instruments :
(1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impounded the same.
(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed.'
'35. Instruments not duly stamped inadmissible in evidence etc.:
No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped.' '36. Admission of instrument where not to be questioned: where an instrument has been admitted in evidence, such admission shall not except as provided in S. 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.'
10. It is, no doubt, true that, as per the provisions enacted in S. 36, when once the instrument is admitted in evidence, the same cannot be called in question at any stage of the same suit or proceeding, on the ground that the instrument has not been dully stamped. But the question which has to be decided in this case is, whether there was any objection at a time when the document was sought to be marked. The finding given by the Principal Subordinate Judge, on 30th Sept., 1977, in the relevant portion of the order, reads as under:
'In this suit, while examining D. W. 1 the advocate for the defendants tendered a document dated 12-3-1952 (which is on N. J. Stamp Papers) which is styled as agreement of partition for the properties worth Rs. 20,000/- to D. W. 1 and the same was marked as Ex. B-2. At that stage the learned counsel for the plaintiff argued that the document, though admitted and marked can be levied with stamp duty and penalty. The learned advocate for the defendants argued that when once a document is admitted and marked, the question of levying stamp duty and penalty will not arise. For this, he relied on : AIR1977AP397 in which their Lordships observed that after a document was admitted the collection of stamp duty and penalty will not arise. In this case, the document is put to the witness and it is marked as Exhibit B2 after admitting the document. After it is marked the learned counsel for the plaintiff raised objection regarding the admissibility. Both sides argued on this matter regarding levy of Stamp Duty and penalty. In view of the above said decision once the document is admitted, penalty and stamp duty cannot be collected.'
11. Viswanatha Sastri, J, in N. Basavaiah Naidu v. T. Venkateswarlu (AIR 1957 Andh Pra 1022), held, (para 1)
'Section 36, Stamp Act, prohibits the rejection of a document once it has been admitted in evidence even at a subsequent stage of the same suit and it is clear that under this section, objection could not be taken when there had been such admission. xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx
Section 36 would apply even though the document had been wrongly admitted or admitted without objection. The object of the Stamp Act is to provide revenue for the State and not to arm a litigant with a weapon of defence and S. 36 proceeds on that basis. If the objection as to the defective stamping is not taken or is overruled and the document is admitted in evidence, the matter stops there and neither the parties nor the court can thereafter agitate the question of its admissibility. The trial Court which admits the document, as well as the appellate and revisional Courts are all bound to act upon the document.'
Further held. (Para 5)
'In the face of the endorsement on the document initialled by the Judge which are regular and in strict compliance with the provisions of O. 13., R. 4 and in the absence of any order under O. 13, R. 6, rejecting the document, it is difficult to accept that the Judge had not applied his mind to the question of admissibility of the document and the judgment dismissing the suit on the ground that the document was not admissible due to insufficiency of stamp cannot be sustained. Even if the Judge remained in that uncertain state for mind, it would not affect the legal result of his action in admitting the document in evidence, by making the necessary endorsements.'
'In applying the provisions of S. 36 of the Stamp Act, the Court should have regard to what has been actually done and not to the unexpressed intentions of the Judge. The Judge might have intended to reject the document, but if in fact he had not rejected it, but admitted it in evidence, it must be acted upon at the subsequent stages of litigation.'
12. In Javer Chand v. Pukh Raj Surana : 2SCR333 , the Supreme Court held (Para 4),
'Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. S. 35 , Stamp Act, is in the nature of a penal provision and has far reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. The record in this case discloses the fact that the hundis were marked as Exs. P-1 and P-2 and bore the endorsement 'admitted in evidence' under the signature of the Court. It is not, therefore, one of those cases where a document has been inadvertently admitted, without the court applying its mind to the question of its admissibility. Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, S. 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial Court itself or to a Court of Appeal or revision to go behind that order.'
13. A single Judge of this Court, Chandrasekhara Sastry, J., in Kolli Eranna v. Thimmaiah : AIR1966AP184 referred to the aforesaid Supreme Court's decision and held (at p. 186),
'A close perusal of the judgment of the Supreme Court in that particular case shows that the documents in question, which were two hundis marked as Exs. P-1 and P-2, bore the endorsements 'admitted in evidence' under the signature of the Court. The endorsements made on the two documents clearly show that they were admitted in evidence. xx xx xx xxxx xx xx xx
Order 13, Rule 4, C.P.C., prescribes that there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely:-
(a) the number and title of the suit,
(b) the name of the person producing the document.
(c) the date on which it was produced, and
(d) a statement of its having been so admitted and the endorsement shall be signed or initialled by the Judge.
In the present case, the requirement of cl. (d) of R. 4 (1) is not satisfied since there is no statement signed by the Judge that the document has been admitted.
xx xx xx xx
But unfortunately for the plaintiffs in this case, there is no endorsement on the document to the effect that it was admitted in evidence as required by O. 13, R. 4 (1) (d), C.P.C. Taking this along with the note made by the learned Subordinate Judge when the document was marked as an exhibit during the evidence of PW 1 and the statement of the first defendant's counsel before the Judge that passed the present order , I must hod that the lower court is right in its view that the document was not admitted in evidence at all but was only marked as Ex.A-9 during the course of the evidence of PW 1 only for the purpose of identification with the that the question of admissibility of the document would be considered later. The document is either admitted or is merely marked as an exhibit for the purpose of identification subject to the question of admissibility being decided later on. If the question of its admission in evidence is to be determine under the Registration Act or any other enactment, the document cannot be held to have been admitted at all for the purpose of any other enactment'.
14. What is, therefore, manifest from the above conspectus of case-law is that, where a question as to the admissibility of document is raised on the ground that it has been stamped, the party challenging has to be alert to see that the document is not admitted by the court. The Court has to judicially determine the matter as soon as the document is tendered in evidence. Once a document has been marked as an exhibit in the case and has been used by the parties in examination and cross-examination of the witnesses , it is not open to the party to raise any objection. Even if it is raised, it is not open either to the trial court or to a court of appeal or revision to go behind that order.
15. The judicial determination of the admissibility of the document in evidence must culminate in the endorsement on the very document stating that the document has been admitted in evidence followed by the initials of the Judge.
16. Examined in the light of above, it is plain from the finding given by the Principal Subordinate judge on 30th Sept., 1977 that the document has not been ' admitted in evidence' .
17. What actually happened was that, while examining DW 1 , the advocate for the defendants tendered a document which is styled as an agreement of partition for properties worth Rs. 20,000 and the same was marked. At that stage, the plaintiff's counsel argued that the document, though admitted and marked, can be levied with stamp duty and penalty. This surely indicates that the moment the document was tendered, the Presiding Officer , without giving any consideration whatsoever as contemplated under S. 33 of the Stamp Act , immediately marked it as Ex. B-2 .And the protest by the plaintiff's counsel followed on the heels. In this set of circumstances , the marking of the document as an exhibit is only for the purpose of identification but does not give rise to admitting it in evidence. In fact, no further examination , much less cross-examination ensued. In point of fact, the trial has not at all proceeded further. If that is the reading to be given to the finding of the learned Principal Subordinate Judge dated 30th Sept. 1977 which is irresistible in my view, then the document ( Ex. B-2 ) cannot be said to have been 'admitted in evidence'. Furthermore , the procedure laid down under O. 13, R.4 , Civil P.C. and in particular the endorsement as required by R.4 (d) of the said Order, does not, find its place on the document . In other words, there is no judicial determination as to whether the document has to be admitted in evidence or not, by way of an endorsement on the document itself which is a must as observed by the Supreme Court in the case referred to above.
18. Learned counsel for the petitioners, relying on the words in the finding, namely,-
' In this case the document is put to the witness and it is marked as Ex. B-2 after admitting the document. After, it is marked the learned counsel for the plaintiff raised objection regarding the admissibility xx xx xx xx xx xx xx xx xx xx xx xx xx
In view of the above said decision, once the document is admitted, penalty and stamp duty cannot be collected.'
argued that the document is held admitted in evidence, and, therefore, no objection could be taken thereafter. There is no substance in this contention inasmuch as the admission of the document in the sense in which the trial Court has stated cannot be held tantamount to admitting the document in evidence in the light of the decisions cited above. Hence the contention, which is devoid of merit and substance, is rejected.
19. There is yet another aspect on which there was a debate and, therefore, it must be adjudicated. The question is, whether even if the document is said to be admitted in evidence, could it nevertheless be acted upon within the meaning of the interaction of the provisions enacted in Ss. 35 and 36 of the Stamp Act. In other words, though the document might have been admitted in evidence (and once it is so done), the embargo contemplated by S. 36 bars only the objection being raised that the document, which is not stamped, should not be admitted in evidence, but, still the question remains whether such document admitted in evidence can be given effect to within the meaning of the second limb of S. 35, i.e., whether the document could be acted upon. Adverting to this situation, the supreme Court in H. S. Ltd v. Dilip Construction (AIR 1969 SC 1238) held, (at p. 1240)
'By that section 9S. 36 of the Stamp Act) an instrument once admitted in evidence shall not be called in question at any stage of the same suit or proceeding on the ground that it has not been duly stamped. S. 36 does not prohibit a challenge against an instrument that it shall not be acted upon because it is not only duly stamped, but on that account there is no bar against an instrument not duly stamped being acted upon after payment of the stamp duty and penalty according to the procedure prescribed by the Act. The doubt, if any, is removed by the terms of S. 42(2) which enact, in terms unmistakable, that every instrument endorsed by the collector under S. 42(1) shall be admissible in evidence and may be acted upon as if it had been duly stamped.'
Sri Ranganatham, learned counsel for the petitioners submits that there is some equivocality in this decision and since it is rendered by a Bench of three Judges, it may not be followed in view of the decision in Javer Chand v. Pukhraj Surana : 2SCR333 (supra), which though earlier in point of time, is by a Bench of four Judges. No doubt, it is true that in case of conflict between two decisions of the Supreme Court, the one decided by a larger Bench, even if it is earlier in point of time, will have to be followed. But, I do not find any conflict between the two decisions, and therefore, the proposition is unfounded. The 1961 decision pertains to the question whether any objection could be raised when once the document has been admitted in evidence, that it is not stamped within the meaning of S. 36 of the Stamp Act, and the Court held that no such objection could be entertained; whereas in the 1969 decision, the question was whether an in stamped document, though admitted in evidence, can yet be acted upon or not.
20. In view of the above since there is no conflict between the two decisions, the question as to which decision has to be followed does not arise. So, following the decision of the Supreme Court, I hold that , even assuming, without laying down, that Ex. B-2 in this case has been 'admitted in evidence', the question whether it should be acted upon or not is still res integra; and, therefore, it is open to the Court to decide whether it should be acted upon and given effect to. To hold otherwise would be rendering the provisions enacted in S. 42(2) of the Stamp Act otiose, as it enacts that every instrument endorsed by the Collector under S. 42(1) shall be admissible in evidence and may be acted upon as if it has been duly stamped.
21. Before coming to a close, I may, however, advert to the submission made by the learned counsel for the petitioners that, should this Court hold eventually against the petitioners, then the lower Court may be directed to decide, according to law, whether the document 9 Ex. B-2) requires any stamp at all, after giving due opportunity to the parties herein.
22. Though it transpires from the record that at one stage the document was endorsed by the trial court as requiring stamp and penalty, the trial court did so without determining and adjudicating as to the nature of the document and whether it requires to be stamped. Hence I deem it proper in the circumstances of the case to direct the trial Court to first decide whether the said document requires to be stamped, according to law and after giving due opportunity and notice to all the concerned including the parties herein; and thereafter, it will proceed with the trial and dispose of expeditiously. With this direction , the Civil Revision Petition is dismissed. No costs.
23. Revision dismissed.