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Nathi Vs. Ghansi - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 1512 of 1977
Judge
Reported inAIR1987P& H105
ActsStamp Act - Sections 35 and 36; Code of Civil Procedure (CPC), 1908 - Order 13, Rule 4
AppellantNathi
RespondentGhansi
Cases ReferredKolli Eranna v. Bellamkonda Thimmaiah
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the..........raju's case, (air 1976 guj 72) (fb) (supra) the trial court had exhibited the insufficiently stamped document after applying its mind and in b.k. thapar's case, (air 1976 j&k; 1) (supra) an application was filed by the defendant that the document be impounded as it was insufficiently stamped and be declared inadmissible into evidence. the court observed that whether the occasion arose, the document would be admitted tentatively and that admission would not amount to an admission within the meaning of s. 36. the application was, therefore, dismissed with the observations that it was not necessary to decide the question forthwith. against the dismissal of the application the defendant went up in letters patent appeal. in my view, therefore, the observations in the above cases to.....
Judgment:
ORDER

1. This judgment will dispose of Civil Revisions Nos. 1512 and 1513 of 1977 which contain common questions of law. The facts in the judgment are being given from Civil Revision No. 1512 of 1977.

2. The case of the plaintiff is that the defendant took on loan an amount of Rs. 2,000/- from him on l2th July, 1970 and executed a pronote and a receipt in his favour. He agreed to return the amount on demand with interest at the rate of 2 per cent per mensem. It is alleged that the defendant did not pay the amount in spite of repeated requests. An amount of Rs. 1~,000/- was due from him as interest up to 11th June, 1973. Out of the said amount he gave up his claim to the extent of Rs. 700/-. Consequently he filed a suit for recovery of Rs. 2700/- Rs. 2000/- as principal and Rs. 700/- on account of interest).

3. The suit was contested by the defendant who controverted the allegations of the plaintiff and inter alia pleaded that he never' borrowed any amount from the plaintiff and never executed any pronote. In case the pronote was proved to have been executed by him, it was without consideration. He also raised an objection that the pronote was not properly stamped.

4. The trial Court held that the defendant took an amount of Rs. 2,000/- from the plaintiff and executed the pronote in his favour. It further held that the stamps on the pronote had not been properly cancelled and, therefore, it could not be read into evidence. In view of this finding it dismissed the suit of the plaintiff. He want up in appeal before the District Judge, Gurgaon who affirmed the judgment and decree of the trial Court and dismissed the same. He has come up in revision to this Court.

5. The question for determination in this revision petition is, that if a pronote is exhibited with a note that the objection of a party that it was not admissible into evidence as the stamps thereon were not properly cancelled would be determined subsequently whether the Court is debarred from deciding the same at the time of arguments. In order, to determine the question it will be proper to !i give a few more facts. The pronote in dispute bears two stamps out of which only one has I been cancelled. It was sought to be proved by the plaintiff from Manohar Lal (P.W. 2), an attesting witness of the receipt attached, to the pronote. While he was being examined the counsel for the defendant raised an objection that the pronote was not admissible into evidence as one of the revenue stamps affixed thereon had not been properly cancelled. The trial Court exhibited the document but left the matter open to be decided at the time of arguments in the suit.

6. It is contended by the learned counsel for the petitioner that once the pronote was exhibited by the trial Court rightly or wrongly, in view of S. 36 of the Stamp Act no objection regarding its admissibility could be taken at a later stage. According to him, the question of admissibility on this ground could be decided by the Court at the time when the pronote was exhibited and as soon as it was exhibited, the matters stood decided. In support of his contention he places reliance on Javer Chand v Pukhraj Surana, AIR 1961 SC 1655, Ramchandra Tewary v. Gajadhar Das, AIR 1967 Pat 276, J.M.A. Raju v. Krishnamurthy Bhatt, AIR 1976 Guj 72 (FB) and B.K. Thapar v. Vijay Kumar, AIR 1976 J&K; l. On the other hand Mr. Garg, learned counsel for the respondent, has urged that the document was exhibited subject to the objection of the defendant and the question regarding the admissibility was to be determined by the Court later. In such circumstances even if the document was given an exhibit mark, it cannot be said that the Court had decided the matter conscientiously and the provisions of S. 36 of the Stamp Act are not attracted.

7. I have duly considered the argument of the learned counsel for the parties. Section 35 of the Stamp Act provides that no instrument chargeable with duty shall be admitted into evidence for any purpose unless such instrument is duly stamped. The proviso to the section says that insufficiently stamped instrument except an instrument chargeable with duty of 10 paise or a bill of exchange or promissory note or acknowledgment or delivery order, can be admitted in evidence on payment of certain duty along with the penalty prescribed therein. From the aforesaid section it is evident that an insufficiently stamped promissory note cannot be admitted into evidence even on payment of the duty and the penalty. Section 36 says that where an instrument has been admitted in evidence such admission shall not be called in question at any stage of the same suit on the ground that it had not been duly stamped. The question to be seen is as to what the word 'admission' means. The matter has been judicially examined A similar question came up before a Division Bench of Lahore High Court in Khazan Shah v. Atta Ullah, AIR 1933 Lah 148(2). The plaintiff in that case claimed the amount on the basis of a promissory note. When the document was produced with a view to its being exhibited, the defendant's counsel took an objection regarding its admissibility and pointed out that one of the four stamps affixed to it had not been cancelled. The trial Court postponed the decision of the objection and proceeded to record the evidence in the case. However, the document was marked as exhibit. While deciding the case, the trial Court held that the promissory note was not admissible into evidence and consequently dismissed the suit. The High Court affirmed the judgment of the trial Court. The Madras High Court also dealt with a similar matter in Kuppammal v. Mu. Ve. Pathanna Chetty, AIR 1956 Mad 250. Interpreting Section 36 it was observed that though it was evident from the language of the suction that where an instrument had been admitted in evidence, it cannot be called in question at any stage of the same suit. The admission contemplated under it must have been the result of a judicial determination as to its admissibility when an objection is raised and the mere stamping on the endorsement on the instrument in question under Order 13, Rule 4 of the Code of Civil Procedure prior to the determination as to admissibility can only be a mechanical act which would not constitute admission under the said section. Same view was taken by the Allahabad High Court in Ram Narain Singh v. Batuk Bhairon Pandey, 1965 All LJ 850, and Andhra Pradesh High Court in Kolli Eranna v. Bellamkonda Thimmaiah, AIR 1966 Andh Pra 184.

8. From the ratio in the aforesaid cases it emerges that the admission contemplated under S. 36 should be the result of determining the question of admissibility of the document judicially. If the document is admitted subject to the objection to be decided at the time of arguments, it cannot be said that the provisions of S. 36 are attracted and the Court is debarred from deciding the point later on. However. if no objection about admissibility on the ground of insufficiency of stamps or proper cancellation of stamps is raised at the stage of evidence and the document is exhibited, it is not open to any of the parties to raise the objection later on.

9. The cases referred to the learned counsel for the petitioner-are all distinguishable. In Javer Chand's case, (AIR 1961 SC 1655) (supra) no objection was taken at the time of evidence that the document could not be admitted as it was not properly stamped. In Ramchandra Tewary's case, (AIR 1967 Patna 276) (supra) the objection was taken that the document required impounding. a it was insufficiently stamped. In view of the objection the penalty was paid and the document was admitted into evidence. In J.M.A. Raju's case, (AIR 1976 Guj 72) (FB) (supra) the trial Court had exhibited the insufficiently stamped document after applying its mind and in B.K. Thapar's case, (AIR 1976 J&K; 1) (supra) an application was filed by the defendant that the document be impounded as it was insufficiently stamped and be declared inadmissible into evidence. The Court observed that whether the occasion arose, the document would be admitted tentatively and that admission would not amount to an admission within the meaning of S. 36. The application was, therefore, dismissed with the observations that it was not necessary to decide the question forthwith. Against the dismissal of the application the defendant went up in Letters Patent Appeal. In my view, therefore, the observations in the above cases to which my attention had been drawn by Mr. Goyal, were made in the peculiar circumstances of those cases and they are of no assistance to decide the present revision petitions. In the present case, as already mentioned. it was ordered by the Court that the objection regarding. admissibility of the pronote would be decided at the time of final arguments. For the reasons already recorded, i am of the opinion that the Court could determine the objection at the time of final arguments. Consequently I reject the submission of the learned counsel.

10. The facts of Civil Revision. 1513 of 1977 are similar and no additional argument was advanced therein. For the aforesaid reasons I do not find any merit in the revision petitions and dismiss the same with no order as to costs.

11. Revision petition dismissed.


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