1. The question that has arisen in this application for revision is whether the learned Judge of the Small Cause Court of Meerut was right in admitting in evidence and using as an acknowledgment a document which is undoubtedly worded as a promissory note. The plaintiff had sued on a promissory note dated 10th August 1924. But he has also produced the document in question which is dated 4th August 1927. It is now admitted on behalf of the opposite party that this second document undoubtedly fulfils the definition of a promissory note and: is inadmissible in evidence as such; but the Court has relied on it as an acknowledgment of the debt due under the earlier promissory note. Dr. Faruqi, for the applicant, has referred to Section 35, Stamp Act, to show that a document which is insufficiently stamped should not be admitted in evidence for any purpose. This document however has been admitted, and under Section 36 the actual admission Of the document is not to be called in question at this stage. The question I am to decide is whether the trial Court acted illegally in interpreting as an acknowledgment a document which is worded as a promissory note.
2. There can be no doubt that in the somewhat analogous case of mortgage bonds which have not been registered and are therefore inadmissible in evidence as such, Courts have regularly interpreted them as simple money bonds. There is no direct authority of this Court to show that a promissory note may be dealt with in the same way. But in the case of Gopala Padayachi v. Rajagaopal Naidu 1926 Mad 1148, a Single Judge of the Madras High Court has held that a promissory note which is not admissible in evidence as such on account of being insufficiently stamped may be used as an acknowledgment. In the case of Gobind Singh v. Bijay Bahadur Singh 1929 All 980, the Court had to consider whether an acknowledgment could itself form the foundation of an action, and in this case there was a promissory note that was not properly stamped and also a receipt, both of which had been filed by the plaintiff. The Bench had therefore not to decide whether an inadmissible promissory note could be used as an acknowledgment. But there are certain remarks made by the learned Judges who formed the Bench, which have been quoted on behalf of either party in the present case. The Soarned Chief Justice for instance, remarked on p. 1284:
I do not think that ordinarily a person can niter having taken a promissory note on an insufficiently stamped paper and a contemporannous receipt throw the promissory note overboard and make the receipt the basis of his suit. This would be encouraging an evasion of the Stamp Act.
The case against using the promissory note itself as an acknowledgment would appear to be still stronger. However as Mr, Panna Lai has pointed out, to use it as an acknowledgment is not the same thing as using it as a promissory note. It is a piece of evidence in favour of the plaintiff, but it is not a negotiable instrument, and he still has to discharge the burden of proof. In other words, he is penalised by not having fulfilled the provisions of the Stamp Act. As will be seen the question is not one that is free from difficulty. But it does not appear to me that the trial Court has clearly erred in law in using the document as an acknowledgment, and as there has been no substantial miscarriage of justice, I see no mason to interfere. The result is that the application is dismissed with costs.