Sultan Singh, J.
(1) M/S. Munshilal Abhinandan Kumar plaintiff-respondent filed a suit for recovery of Rs. 7500.00 on account of price of goods alleged to have been supplied to the defendant-petitioner. During the course of evidence a receipt dated 7-7-1983 for Rs. 671.50 alleged to have been executed by Mr. S.K. Jain, on behalf of the plaintiff in favor of defendant was proved by Sardari Lal defendant appearing as D.W. I and it was marked as Exh. D.W. 1/2. On 3-5-1983 when this witness was being cross-examined, the counsel for plaintiff pointed out that the receipt was unstamped and thereforee it could not have been exhibited. The trial court by order dated 3-5-83 de-exhibited the receipt and marked it as 'B'. On 9-5-83 the defendant filed an application under Order 47, Rule 1, Order 18 Rule 10 & 11 and Section 151 Civil Procedure Code pointing to the Trial Court that on 3-5-83 counsel for defendant was not present though his presence had been recorded, that the order de-exhibiting receipt was erroneous on the face of record and thereforee it should be recalled. The Trial Court held that the receipt was not executed by the plaintiff but by Mr. S.K. Jain and even on payment of penalty of Rs. l.00 under the proviso (b) to Section 35 of the Indian Stamp Act the receipt was inadmissible in evidence, that there was no error apparent on the face of the record, that the receipt was exhibited inadvertently and contrary to law. The Court dismissed the application. The defendant has filed this Revision under Section 115 CPC.
(2) Learned counsel for the petitioner submits that the receipt was executed by Mr. S.K. Jain, on behalf of plaintiff on the letter-head of the firm, that admittedly S.K. Jain was an employee of the plaintiff and thereforee on payment of penalty Rs. l.00 under proviso (b) Section 35 of the Indian Stamp A
(3) Section 35 proviso (b) of the Indian Stamp Act reads as under :
'WHERE any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;'
The receipt in question Ex. D.W. 1/2 is admittedly on the letter-head of the plaintiff-firm. It. is signed by one S.K. Jain who was admittedly an employee of the plaintiff. It thereforee cannot be said that this receipt was not executed by or on behalf of the plaintiff-firm. I am thereforee of the opinion that the document itself was admissible on payment of penalty of Rs. l.00 by the defendant-petitioner.
(4) Assuming that receipt is not admissible in evidence on payment of penalty, the court having once admitted the receipt in evidence and exhibited it as D.W. 1/2 has no power to question the validity of its admission in evidence. Section 36 of the Indian Stamp Act reads as under:-
'ADMISSION of instrument where not to be questioned-where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 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.'
This section provides that once an instrument has been admitted in evidence such admission shall not be questioned subsequently on the ground that the instrument was not duly stamped. The provision is mandatory and the court has no jurisdiction to ignore it.
(5) In Javer Chand and others v. Pukhraj Surane, : 2SCR333 it has been observed as under :
'THAT Section (Section 36 of the Indian Stamps Act) is categorical in its terms that when a document has once been admitted in evidence, such admission cannot be called in question, at any stage of the suit or the proceeding on the ground that the instrument had not been duly stamped. The only exception recognised by the section is the class of cases contemplated by Section 61 which is not material to the present controversy. Section 36 does not admit of other exceptions. 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. Section 35 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 trial Court has refused to follow this, decisio.n on the ground that in that case the document was admissible on payment of-penalty and it is not so in the instant case. The words of thus section are wide-enough to include all documents whether penalty is payable or not on the document for its admission in evidence. There is complete prohibition to question the admission of the document in evidence at any subsequent stage.
(6) In Devachand and another v.Hira chand Kama Raj, ILR(1889) 13 Bom 449 (F.B.) unstamped promissory notes were admitted in' evidence. It was held that the promissory notes having been once admitted in evidence could not afterwards be rejected 'on the ground of their not being duly stamped.
(7) In LakhmiDas v. Lakho Ram and another, : AIR1935All410 a promissory note was insufficiently stamped which was not admissible in evidence even on payment of penalty but the instrument was admitted in evidence by the lower court. It was held that the admission could not be questioned and that Section 61 of the Indian Stamp Act was not applicable.
(8) In Nalluru Basavaiah Naidu v. Takkalla Venkateswarulu, Air 1957 Andhra Pradesh 1022 it has been observed that Section 36 of the Stamp Act prohibits the rejection of a document once it has been admitted in evidence even in a subsequent stage of the same suit. It has been further observed that if a promissory note had in fact been admitted in evidence though in disregard of the provisions of Section 35 of the Indian Stamp Act it will be available as evidence in that proceeding for all purposes as if it had been properly stamped at the outset.
(9) I am, thereforee, of the opinion that under Section 36 of the Indian Stamp Act, unstamped Receipt requiring Stamp Duty once admitted into evidence cannot be rejected later on. The trial court thereforee by order dated 3-5-83 disregarded the law laid down under Section 36 of the Indian Stamp Act, and thus acted illegally in the exercise of its jurisdiction. The order is apparent on the face of the record. The trial court ought to have reviewed the order dated 3-5-83 and recalled the same.
(10) This revision petition is thereforee accepted. The impugned order dated 3-12-83 refusing to review the order dated 3-5-83 is 'set aside. The petitioner's application for review of the order dated 3-5-83 is hereby allowed. It is held that unstamped receipt dated 7-7-83 for Rs. 671.50 admitted in evidence and marked as Ex. Dw 1/2 cannot be rejected. The order dated 3-5-83 is set aside.
(11) This revision was partly heard on 16-5-85 and since then it has been appearing as part-beard on the daily cause list, but the counsel for the respondent has not appeared so far . the fact and circumstances, there will be no order as to costs.