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Ettuthara Warrier Vs. C. Kochunarayana Menon - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 508 of 1960
Judge
Reported inAIR1962Ker265
ActsStamp Act, 1899 - Sections 36
AppellantEttuthara Warrier
RespondentC. Kochunarayana Menon
Appellant Advocate M.K. Narayana Menon,; C.S. Narayanan, A. Chandrasekhara Menon and;
Respondent Advocate N.D.P. Namboodiripad and; M. Viswanathan, Advs.
DispositionPetition allowed
Cases ReferredJaver Chand v. Pukhraj Surana
Excerpt:
- .....that court refused to evaluate the evidence in the light of ext. p-1 on the ground that it was not duly stamped and dismissed the suit without taking it into consideration.2. it is common ground that ex1. p-1 should have been stamped as a promissory note and that it is defective on that account. the only contention of the petitioner is that the instrument having been admitted in evidence its admissibility cannot be challenged at a later stage.3. the instrument was proved and marked when the petitioner was examined as p.w. 1 on 11-6-1959. it was also used in the cross-examination of the respondent when he gave evidence as d.w. 1 on the same date. the admissibility was questioned for the first time only by i. a. no. 1831 of 1959, a petition filed by the respondent on 20-6-1959.4. the.....
Judgment:
ORDER

1. The plaintiff in S. C. No. 66 Of 1958 of the Munsiff's Court of Irinjalakuda is the petitioner before us. That court refused to evaluate the evidence in the light of Ext. P-1 on the ground that it was not duly stamped and dismissed the suit without taking it into consideration.

2. It is common ground that Ex1. P-1 should have been stamped as a promissory note and that it is defective on that account. The Only contention of the petitioner is that the instrument having been admitted in evidence its admissibility cannot be challenged at a later stage.

3. The instrument was proved and marked when the petitioner was examined as P.W. 1 on 11-6-1959. It was also used in the cross-examination of the respondent when he gave evidence as D.W. 1 on the same date. The admissibility was questioned for the first time Only by I. A. No. 1831 of 1959, a petition filed by the respondent on 20-6-1959.

4. The contention of the petitioner is based on Section 38 of the Travancore-Cochin Stamp Act, 1125, which provided that :

'Where an instrument has been admitted inevidence or registered, such admission or registration shall not, except as provided in Sections 63 and 64, be called in question on the ground that the instrument has not been duly stamped.'

The section corresponds to Section 36 of the Indian Stamp Act, 1899 :

'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.'

It will be noticed that the only difference as far as the admission of an instrument in evidence is concerned is that the words 'at any stage of the same suit or proceeding' Occurs in the Indian Act and did not occur in the Travancore-Cochin enactment.

5. The words of the section are clear, and there can be no doubt that once a document has been admitted in evidence -- as in this case --its admissibly cannot be questioned on the ground that it has not been duly stamped : Ma Ewa May v. Chettiar Firm, AIR 1929 PC 279, The expression 'admitted in evidence' means 'let in 29 part of the evidence'. To hold -- as the respondent wants us to do -- that a document should not be considered as having been admitted in evidence unless the court has applied its mind to the question of admissibility from the point of view of the Stamp law will involve an addition to the section of the words 'after judicially considering the question of sufficiency of stamp' after the words 'admitted in evidence', M. K. Lodhi v Zia-ul-Haq, AIR 1939 All 588.

6. Most of the cases collected in the commentaries to Section 36 of the Indian Stamp Act, 1899, by Mulla and Chitaley were cited before us, 'We do not think we need refer to any decision other than Javer Chand v. Pukhraj Surana, AIR 4961 SC 1655, wherein the Supreme Court said that Section 36 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, that the only exception recognised by the Section is the class of cases contemplated by Section 61, and that, once a court, rightly of wrongly, decides to admit a document in evidence, so far as the parties are concerned, the matter is closed.

7. In the light of what is stated above the C. R. P. has to be allowed, the decree. Set aside, and the case remanded to the Munsiff's Court, Irinjalakuda, for fresh disposal according to law and in the light of all the evidence adduced in the case inclusive of Ext. P-1. We do so. The costs of his petition will be costs in the cause.


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