Skip to content


J.M.A. Raju Vs. Krishnamurthy Bhatt - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 887 of 1970
Judge
Reported inAIR1976Guj72; (1976)GLR210
ActsStamp Act, 1899 - Sections 35 and 36; Code of Civil Procedure (CPC), 1908 - Sections 115; Constitution of India - Article 133 (1)
AppellantJ.M.A. Raju
RespondentKrishnamurthy Bhatt
Appellant Advocate S.B. Majmudar, Adv.
Respondent Advocate M.C. Shah, Adv.
Cases ReferredL. Sethi v. R. P. Kapur
Excerpt:
civil - document - sections 35 and 36 of stamp act, 1899, section 115 of code of civil procedure, 1908 and article 133 (1) of constitution of india - question regarding scope of powers of high court under section 115 while dealing with order admitting or refusing to admit document tendered in evidence before trial court - decision regarding admissibility turns upon question of sufficiency of stamp affixed on document in question - principal object of indian stamp act to collect revenue from state - once trial court decides to admit document as properly or sufficiently stamped decision accepted as final and matter has to be treated as closed - not open to any superior court either in appeal or revision to sit in judgment over decision to admit document in evidence or to review judicially.....b.j. divan, c.j.1. the main question with which we are concerned in the present reference to the full bench is whether the decision of a division bench of this court in prabhudas v. bhogilal, (1967) 8 guj lr 649 : : air1968guj236 is overruled by necessary implication by, the decision of the supreme court in m. l. sethi v. r. p. kapu : [1973]1scr697 .2.this civil revision first came up for final hearing before one of us on october 16, 1973 and at that time in view of the decisions in civil revn. appln. no. 731 of 1967 decided on 11-1-1967 (guj) and m. l. sethi v. r. p. kapu : [1973]1scr697 (supra) and the decision of the division bench of this court in prabhudas v. bhogilal : air1968guj236 (supra) the matter was referred to a division bench. thereafter the matter came up for hearing before.....
Judgment:

B.J. Divan, C.J.

1. The main question with which we are concerned in the present reference to the Full Bench is whether the decision of a Division Bench of this Court in Prabhudas v. Bhogilal, (1967) 8 Guj LR 649 : : AIR1968Guj236 is overruled by necessary implication by, the decision of the Supreme Court in M. L. Sethi v. R. P. Kapu : [1973]1SCR697 .

2.This Civil Revision first came up for final hearing before one of us on October 16, 1973 and at that time in view of the decisions in Civil Revn. Appln. No. 731 of 1967 decided on 11-1-1967 (Guj) and M. L. Sethi v. R. P. Kapu : [1973]1SCR697 (supra) and the decision of the Division Bench of this Court in Prabhudas v. Bhogilal : AIR1968Guj236 (supra) the matter was referred to a Division Bench. Thereafter the matter came up for hearing before the Division Bench consisting of M. U. Shah and B. K. Mehta, JJ and by their referring judgment dated December 19, 1973 the Division Bench referred the case to larger bench in view of the decision of the Supreme Court in M. L. Sethi v. R, P. Kapur (supra) and under these circumstances the matter has now come before this Full Bench.

3. In order to appreciate the controversy involved in this case, we will set out the facts giving rise to this litigation. The petitioner herein is the original defendant and the opponent is the original plaintiff. The plaintiff filed a suit against the defendant for a decree in the sum of Rs. 7.000/- and interest and the suit was on the strength of a document which was marked 4/1. This document was executed by the defendant in favour of the plaintiff. According to the plaintiff this document was a promissory note payable on demand. The document was tendered in evidence when the plaintiff was being examined in chief. The defendant had raised an objection at the time of admission as to the admissibility of this document and his contention was that the document was a promissory note payable otherwise than on demand and, therefore, under Item 49 of Schedule I of the Indian Stamp Act. 1899, it was required to be stamped as if it was a bill of exchange and the proper stamp duty payable thereon was the same as on a bill of exchange for the same amount payable otherwise than on demand. The document bore a stamp of 50 paise and in the shape of five stamps of ten paise each. It is common ground that if the document were to be treated as a promissory note payable otherwise than on demand, the stamp would be much more than 50 paise. It has been contended on behalf of the defendant before the learned 9th Joint Civil Judge (Junior Division) Baroda, before whom the suit is pending that since this is a romissory note by virtue of Section 35, Proviso (a), the document cannot be admitted, in evidence at all since it was a promissory note and once it is found that the promissory note is insufficient1y stamped, it cannot be admitted in evidence at all. The learned 9th Joint Civil Judge (Junior Division), Baroda by his order dated August 3, 1970 held that the document should be exhibited as Exhibit 60 on the record of the case. The document was marked Exhibit 60 and he directed the document to be marked as a regular exhibit on the record of the case. At that stage the defendant came to this High Court by way of this Civil Revision Application. The matter came up for admission before our learned brother S. H. Sheth, J. on September 2, 1970. He admitted the matter and granted in return stay of further proceedings in the suit and since that date the further proceedings in the suit are stayed.

4. In order to appreciate the controversy involved in this case, it is necessary to refer to some of the Sections of the Indian Stamp Act, 1899. Section 35 provides-

'35. No instrument chargeable with duty shall be admitted in evidence for any purpose by my 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:

Provided that- (a) any such instrument not being an instrument chargeable with a duty not exceeding ten naya paise only or a bill of exchange or promissory note shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument, insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion.'

Section 36 of the Indian Stamp Act is in these terms:-

'36. Where an instrument has beet 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.'

Section 61 of the Indian Stamp Act provides for revision of certain decisions of Courts regarding the sufficiency of stamps but that decision is not to affect the admissibility of the document in evidence after having been decided upon by the trial Court at the stage of admission of the document; it has been given such finality as is referred to in Section 36.

5. We may also mention at this stage that the principal question before us is regarding the scope of the powers of the High Court under Section 115 of the Code of Civil Procedure when dealing with an order admitting or refusing to admit a document at the stage when the document is tendered in evidence before the trial Court and the decision regarding admissibility turns upon the question of sufficiency or otherwise of stamp affixed on the document in Question. Section 115 of the Code of Civil Procedure is in these terms:-

'115. Revision:- The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit'

Before we start dealing with the specific decisions on this point, it is worthwhile considering as to what is the purpose of the Indian Stamp Act.

6. In Hindustan Steel Ltd v. M/s, D. C. Co., 1969 (1) SCC 597 ;(AIR 1960 SC 1238), Shah, J., as he then was, delivering the judgment of the Supreme Court observed in paragraph 7 at page 600 (of SCC) : (para 5 at p. 1240 of AIR):-

'The Stamp Act is a fiscal measure enacted to secure revenue for the State on certain classes of instruments. It is not enacted to arm a litigant with a weapon of technicality to meet the case of his opponent. The stringent provisions of the Act are conceived in the interest of the revenue; once that object is secured according to law, the party staking his claim an the instrument will not be defeated on the ground of the initial defect in the instrument. Viewed in that light the scheme is clear. section 35 of the Stamp Act operates as a bar to an unstamped instrument being admitted in evidence or being acted upon;'

The Supreme Court then went on to consider the effect of Section 40 of the Stamp Act and also of section 40, sub-section (1). We are not concerned in this case with the controversy regarding Section 40 or section 40 but it is clear that we have to consider the provisions of the Stamp Act as a fiscal measure, the principal object of which is to secure revenue for the State but the object of the Stamp Act is not to enable parties to raise technical objections to meet the case of their opponent.

7. It must be noted that under Section 36 the crucial words are 'where an instrument has been admitted in evidence.' It is obvious that once the document has been admitted in evidence, the admission cannot be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. The words 'admitted in evidence' were interpreted by the Supreme Court in Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655. Sinha, C. J., delivering the judgment of the Supreme Court has pointed out at page 1656 of the report after setting out the provisions of Section 36 of the Stamp Act-

'That Section 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 461, 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 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.'

Mr. S. B. Majmudar for the petitioner drew our attention to the fact that the Supreme Court then proceeded to observe-

'The record in this case discloses the fact that the hundis were marked as Exhibits 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, Section 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 this order. Such an order is no one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction.'

Mr. Majmudar contended before us in the light of this last quoted passage from the decision of the Supreme Court that a document could be said to be 'admitted in evidence' on1y when after the document has been marked as Exhibit, it had been used by the parties in examination and cross-examination of their witnesses. He contended that immediately after the decision of Court is reached that the document should be 'admitted in evidence' and the contention of the party who objects to the admission of the document has been overruled but before it has been used for the purpose of examination and cross examination of witnesses, it is open to the party concerned to approach the High Court in revision under Section 115 of the Code of Civil Procedure objecting against the correctness of the decision of the trial Court to admit the document in evidence. In the instant case we are concerned with the facts where the trial Court decided to admit the document in evidence but Mr. Majmudar's contention would govern also a case where the trial Court decides not to admit the document in evidence.

8.We are unable to accept this contention of Mr. Majmudar because in the first passage which we have cited, the Supreme Court, speaking through Sinha.C. J., has made it clear that once the decision has been taken by the trial Court and, that decision may be right or wrong regarding the admissibility of the document in evidence and particularly when the trial Court has decided to admit the document in evidence, so far as the parties to the suit are concerned, the matter is closed and what is meant by 'admission in evidence' is marking of the document as an Exhibit in the case which shows application of mind regarding the admissibility, this amounts to 'admitting in evidence'. In that particular case the documents concerned were tendered in evidence. The penalty on the two documents was levied by the trial Court and after the payment of penalty, the documents were exhibited and numbered under the signature of the presiding officer of the Court and they had been introduced in evidence and were also referred to and read in evidence by the defendant's counsel and it was in the context of facts of that particular case that the Supreme Court observed in the passage relied upon by Mr. Majmudar about the trial proceeding all along on the footing that the document was an exhibit in the case and had been used by the parties in examination and cross-examination of their witnesses. In our opinion the crucial stage is, the stage of marking the document as an exhibit in the case. . That is the stage at which the Court decides to admit the document in evidence and once that stage is reached according to this decision in Javer Chand v. Pukhraj Surana : [1962]2SCR333 (supra) the decision of the Court to admit the document in evidence is reached and once that decision to admit the document is reached so far as the parties are concerned the matter is closed by virtue of the operation of Section 36 of the Stamp Act. This is the only meaning that can be attached to the observations of the Supreme Court in Javer Chand v. Pukhraj Surana (supra). Our attention has not been drawn to any other decision of the Supreme Court which detracts from or modifies this interpretation of Section 36 of the Stamp Act.

9. In our opinion apart from the provisions of Section 115 of the Code of Civil Procedure, in view of the fact that the principal object of the Indian Stamp Act is to collect revenue for the State end the stringent provisions of the Stamp Act have been enacted with a view to see that the revenue of the State are realised to the utmost extent as provided by law, once the trial Court decides to admit a document as properly or sufficiently stamped, the decision has to be accepted as final and the matter has to be treated as closed and, it is not open to any superior Court either in appeal or revision to sit in judgment over the decision to admit the document in evidence or to review judicially the decision of the trial Court to admit the document in evidence. We may point out that the bar of Section 36 of the Stamp Act applies only to the decision of the trial Court to admit the document in evidence. If the trial Court decides not to admit a particular document in evidence it is always open to the aggrieved party to make it a ground of appeal before the Court of Appeal and get the matter decided by the appellate Court. But so far as the decision to admit the document on record is concerned, once the trial Court, rightly or wrongly, decides to admit the document in evidence, in the sense in which the Supreme Court explained that phrase in Javer Chand v. Pukhraj Surana. : [1962]2SCR333 (supra) the matter, so far as the parties are concerned, is closed.

10.The decision in Prabhudas v Bhogilal : AIR1968Guj236 (supra) was by a Division Bench consisting of Bhagwati, J., as he then was and Bakshi, J., and two questions were considered by the Division Bench. First question was as to what was the meaning of the words 'case decided' occurring in Section 115 of the Code of Civil Procedure and second question was as to what was the scope of clauses (a), (b) and (c) of Section 115 of the Code of Civil Procedure. The facts of the case before the Division Bench were that a suit was filed by the plaintiffs in the case against the defendant of that case to recover a sum of Rs. 3,600/- being the amount of three installments due and payable by the defendants to the plaintiffs under a document Exhibit 4/1 executed by defendants Nos. 1 and 2 in favour of the plaintiffs. The plaintiffs also relied on another document Exhibit 4/2 in support of that claim, though the claim was rested primarily on the document Exhibit 4/1. Inter alia the defendants contended in the written statement that the documents Exhibit 4/1 and 4/2 were promissory notes and since they, were inadequately stamped, they were not admissible in evidence. One of the issues framed by the trial Court was whether the documents Exhibits 4/1 and. 4/2 were promissory notes and hence inadmissible in evidence. At the trial of the suit when the plaintiffs partner was in the witness-box and was being examined-in-chief, the documents Exhibits 4/1 and 4/2 were sought to be tendered in evidence and as objection was raised on behalf of the defendants against their admissibility, the trial Court heard arguments on the question whether the documents Exhibits 4/1 and 4/2 were promissory notes and, by an order dated February 20, 1962 the trial Court held that the said documents were promissory notes and being inadequately stamped, they were inadmissible in evidence. The trial Court answered the relevant issue against the plaintiffs and at that stage the plaintiffs preferred the Revision Application to the High Court challenging the decision of the trial Court not to admit the documents Exhibits 4/1 and 4/2 as evidence in the case. It was in this context that the question of maintainability of the Revision Application under the provisions of Section 115 of the Code of Civil Procedure arose before the Division. Bench. The Division Bench held that where the question of admissibility arises in regard to a document which constitutes the foundation of some right or obligation in controversy between the parties in the suit or proceeding so that the decision of the question of admissibility would by its direct and, immediate consequence, of its own force, determine such right and obligation, it would not be correct to say that the decision of the question of admissiblity is mere1y a decision of a question under the Evidence Act: since it decides a part of the suit or proceeding by determining the right or obligation in controversy between the parties, it would amount to a decision of a 'ease' within the meaning of S. 115. The Division Bench pointed out that ordinarily, a decision of a question of admissibility of a document would be nothing more than a decision of a question under the Evidence Act and would not amount to a decision of a 'case' but there may be cases where such a decision may decide an issue or a part of a suit or roceeding and in such cases the decision would certainly be a 'case decided.' The Division Bench further held that under clauses (a) and (b) of Section 115 of the Code of Civil Procedure, if a subordinate Court has Jurisdiction to decide a question before it, it may decide it rightly or wrongly, whether the question be one of law or fact; that would not bring the case within either of the two clauses of Section 115. It is only where the error of law or fact has relation to the jurisdiction of the subordinate Court to try the dispute that the Section would be attracted. A plea of limitation or a plea of resjudicata is a plea of law which, concerns the jurisdiction of the Court trying the proceeding. If an erroneous decision is in favour of the party raising the plea, the Court would be refusing to exercise jurisdiction vested in it and if on the other hand the erroneous decision is against the party raising the plea the Court would be clutching at jurisdiction it does not possess. In either case the Section would be attracted: Clause (b) in the former case and Clause (a) in the latter. The Division Bench also pointed out that the position would be the same where there is an error of fact having relation to the jurisdiction of the Court. Such a case would arise where the jurisdiction of the Court depends on the existence or non-existence of a collateral fact and by an erroneous decision of that fact the Court assumes jurisdiction not vested in it or deprives itself of Jurisdiction so vested. In such a case the High Court would be entitled to revise the erroneous decision under clause (a) or clause (b) of Section 115, In arriving at this conclusion the Division Bench relied upon the decision of the. Privy Council in Joy Chand Lal v. Kamalaksha Chaudhury , the decisions of the Supreme Court in Manindra Land and Building Corporation v. Bhutnath : [1964]3SCR495 and Choube Jagadish Prasad v. Ganga Prasad : AIR1959SC492 . It also relied in this connection on the decision of the Supreme Court in Pandurang v. Maruti : [1966]1SCR102 . It was also urged before the Division Bench that even if the matter might not fall within clause (a) or clause (b) of Section 115 it would amount to an illegality or materiaI irregularity and would fall within Clause (c) of Section 115 of the Code of Civil Procedure. In the light of the decision of the Supreme Court in Keshardeo Chamaria v. Radhakisen, : [1953]4SCR136 , where the decision of Vivian Bose, J., in his order of reference in, Narayan Soneji v. Sheghrao Vithoba AIR 1948 Nag 258 (FB) was cited with, approval, the Division Bench held that the words 'illegally' and 'material irregularity' in clause (c) do not cover either errors of fact or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied within the light of this decision of the Supreme Court in Keshardeo Chamaria v. Radhakisen Chamaria (supra), the Division Bench held that a mere error of law in the exercise of jurisdiction is not enough. What is necessary is that the subordinate Court must have acted illegally, that is, in breach of some provision of law or with material irregularity, that is by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. The Division Bench in this connection also referred to Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras and it held that this was the test which must be applied in order to determine whether the case falls within clause (c) of Section 115 of the Code of Civil Procedure.

11. After examining the scope and ambit of Section 115 and particularly in the light of the interpretation regarding all the three clauses of Section 115, the Division Bench in Paragraph 9 at p. 657 of the report (8 Guj LR 649) = (para 9 at p. 240 of AIR) observed-

'The question whether the dominant Exhibit 4/1 was a promissory note and was, therefore, by reason of inadequacy of stamp inadmissible in evidence was clearly a question within the jurisdiction of the trial Court and the decision of this question one way or the other did not have any relation to the jurisdiction of the trial Court. It cannot be said, that by erroneous decision of the question the trial Court clutched at jurisdiction it did not possess or refused to exercise jurisdiction vested in it by law. Nor can it be said that the trial Court in arriving at the decision acted in breach of any provision of law or committed any error of procedure in the course of the trial which could be regarded as material of course it must be conceded that if the decision of the trial Court was erroneous, the error committed by the trial Court was undoubtedly an error of law, for the decision turned on the question whether the document Exhibit 4/1 was a promissory note within the meaning of Section 2(22) of the Stamp Act which would be clearly a question of law but this error of law did not have relation to and was not concerned with the jurisdiction of the subordinate Court and therefore, none of the three clauses of Section 115 was attracted in the present case. The revision applicable was therefore incompetent........

12. It may be pointed out that in D. L. F. Housing etc. Co. v, Sarup Sing. : [1970]2SCR368 , the Supreme Court considered the decisions of the Privy Council in Balakrishna Udayar v. Vasudeva Ayyar, 44 Ind App 261 : (AIR 1917 PC 71) and Rajah Amir Hassankhan v. Sheo Baksh Singh (1884) 11 Ind App 237 (PC). It also referred to the earlier decision of the Supreme Court in Keshardeo v. Radhakisen : [1953]4SCR136 (supra) and in Paragraph 7, Dua, J., delivering the judgment of the Supreme Court observed at page 2327-

'The mass of reported cases only serve to show that the High Courts do not always appreciate the limits of their jurisdiction under this Section. The legal position was authoritatively laid down by the Privy Council. as far back as 1894 in Raja Amir Hassan Khan v. Sheo Bakshi Singh . The Privy Council again pointed out in Balakrishna Udayar v. Vasudeva Ayyar, (AIR 1917 PC 71) ......... that this Section, is not directed against the conclusions of law or fact in which the question of jurisdiction is not involved. This view was approved by this Court in Keshar Deo v. Radha Kisan.. ..... and has since been reaffirmed in numerous decisions.'

Thus the view taken by the Supreme Court approving the decision of the Full Bench of the Nagpur High Court in the Supreme Court decision in Keshardeo Chamaria. v. Radhakisan : [1953]4SCR136 (supra) is still good law and that principle has not been departed from. At this stage it is necessary to refer to the decision of the Supreme Court in Abbasbhai v. Gulamnab (1964) 5 Guj LR 55 : [1964]5SCR157 . Shah, J., as he then was, delivering the judgment of the Supreme Court pointed out in paragraph 14 that in that particular case the District Court was in error in assuming that by tender in a in Court rent at the rate specified in the order dated February 14, 1957 the requirement of Section 12(3)(b) regarding payment or tender of standard rent was satisfied. Against the decision of the District Court a Revision Application was entertained by the High Court and in paragraph 15 Shah. J., observed-

'The Question then arises: had the High Court jurisdiction to set aside the order of the District Court in exercise of its powers under Section 115 of the Code of Civil Procedure? The District Court on an erroneous view of Section, 12 (3) (b) held that the requirements of that provision were complied with by the defendant, but it also held, that having regard to the circumstances, the readiness and willingness contemplated by sub-section (1) was otherwise established. The High Court had, in exercise of its powers under Section 115, Code of Civil Procedure, no authority to set aside the order merely because it was of the Opinion that the judgment of the District Court was as sailable on the ground of error of fact or even of law. Jurisdiction to try the suit was conferred upon the Subordinate Judge by Section 28(1)(b) of the Act, and the decree or order passed by the Subordinate Judge was by Section 29(1)(b) subject to appeal to the District Court of the District in which he functioned, but all further appeals were by sub-section (2) of Section 29 prohibited. The power of the High Court under Section 115, Code of Civil Procedure was not thereby excluded but the exercise of that power is by the terms of the statute investing it, severely restricted. The High Court may exercise its powers in revision only if it appears that in a case decided by a Sub-ordinate Court in which no appeal lies thereto the Subordinate Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in the exercise of its Jurisdiction illegally or with material irregularity. As observed by the Privy Council in Balakrishna Udayar v. Vasudeva Aiyar .........

' .......the section (Section, 115 of the Code of Civil Procedure) applies to urisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it .The Section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved'.

Therefore, if the trial Court had, jurisdiction to decide a question before it and did decide it, whether it decided it rightly or wrongly the Court had jurisdiction to decide the case, and even if it decided the question wrongly it did not exercise its jurisdiction illegally or with material irregularity Rajah Amir Hasan Khan v. Sheo Baksh Singh ..........'

The same view about the scope of Section 115 of the Code of Civil Procedure was also taken by the Supreme Court in Chaube Jagdish Prasad v Ganita Prasad : AIR1959SC492 . J, L. Kapur, J., delivering the judgment of the Supreme Court after considering the earlier decisions of the Privy Council and the Supreme Court observed in paragraph 19 at page 497 of the report-

'Section 115. Civil P. C., empowers the High Court, in cases where no appeal lies to satisfy itself on three matters: (a) that the order made by the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise its jurisdiction (c) that in exercising the jurisdiction the Court has not acted illegally, that is in breach of some provision of law or with material irregularity that is by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. Per Sir Wm Beaumont in Venkatagiri Ayyanger . Hindu Religious Endowment Board.Madras Therefore, if an erroneous decision of a subordinate Court resulted in its exercising jurisdiction not vested in it by law or failure to exercise the Jurisdiction so vested or acting with material irregularity or illegality in the exercise of its jurisdiction the case for the exercise of voters of revision by the High Court is made out in Joy Chand Lal Babu v. Kamalaksha Chaudhury ...... the subordinate Court gave an erroneous decision that the loan was a commercial loan and therefore refused to exercise jurisdiction vested in it by law and the Privy Council held that it was open to the High Court to interfere in revision under Section 115..... in Keshardeo Chamaria v. Radhakisan..... both these judgments of the Privy Council as also the previous judgments in Amir Hassan Khan v Sheo Baksh singh and, Balakrishna udayar v. Vasudeva Aiyar,......... were reviewed and it was held that Section 115, Civil P. C., applies to matters, of jurisdiction alone, the irregular exercise or non exercise of it or the illegal assumption of it. Thus if a subordinate Court had jurisdiction to make the order it made and has not acted in breach of any provision of law, committed any error of procedure which is material and may have affected the ultimate decision, then the High Court has no power to interfere. But if on the other hand it decides a jurisdictional fact erroneously and thereby assumes jurisdiction not vested in it or deprives itself of jurisdiction so vested then the power of interference under Section 115, Civil P. C. becomes operative.'

13. In the instant case it is obvious that when the trial Court Judge decided to admit the document in evidence, he was exercising jurisdiction vested in him by law and it is obvious in the light of the decision in Keshardeo Chamaria v. Radha Kissen : [1953]4SCR136 (supra) that under clause (c) the High Court can entertain a Revision Application only if there is some illegality or material irregularity in the manner of arriving at that decision and not in the decision itself.

14. Mr. Majmudar for the petitioner has very strongly relied upon the following observations of Mathew, J., in M. L. Sethi v. R. P. Kapur : [1973]1SCR697 (supra) and contended before us that in the light of those observations of Mathew, J., the Revision Application in the instant case is maintainable under Section 115 of the Code of Civil Procedure. It may be pointed out that the case before the Supreme Court in M. L. Sethi v. R. P. Kapur arose out of an order for discovery of documents. A suit was filed in form a pauperis for recovery of damages to the tune of Rs. 7,48,000/- for malicious prosecution. Notice of the petition to sue in form a pauperis was given to the State Government and the appellant .under Order 33, Rule 6 of the Code of Civil Procedure. Both the Government and the appellant filed objections stating that the respondent (plaintiff) was not a pauper. The appellant thereafter filed an application for discovery of documents from the respondent (plaintiff) for proving that the respondent was not a pauper. The Court passed an order directing the respondent (original plaintiff) to discover on affidavit, the documents relating to the bank accounts of the respondent, namely, pass-books, cheque books, counterfoils, etc. and the question before the Supreme Court was whether a Revision Application against this order directing the discovery of documents would, lie. Mathew, J., referred to the earlier decisions of the Privy Council in Raja Amir Hassan Khan v. Sheo Baksh Singh, (1884) 11 Ind App 237 (PC) (supra), Balakrishna Udayar v. Vasudeva Aiya (AIR 1917 PC 71) (supra), to the decisions of the Supreme Court in Manindra Land and Buildings Corporation. Ltd. v. Bhutnath Banerjee : [1964]3SCR495 (supra) and Abbasbhai V. Gulamnabi : [1964]5SCR157 .(supra) and also to the decision in Pandurang Dhond v. Maruti Hari Jadhav : [1966]1SCR102 . In paragraph 10 Mathew, J.. observed-

'The word 'jurisdiction' is a verbal cast of many colours. Jurisdiction originality seems to have had the meaning which Lord Reid ascribed to it in Anisminic Ltd. v. . Foreign Compensation Commission, (1969) 2 AC 147, namely. the entitlement to enter upon the enquiry in question'. If there was an entitlement to enter upon an inquiry into the question then any subsequent error could only be regarded as an error within the jurisdiction. The best known formulation of this theory is that made by Lard Denman in R. v. Bolton (1841) 1 QB 66. He said that the question of jurisdiction is determinable at the commencement, not at the conclusion of the enquiry. In Anisminic Ltd (1969) 2 AC 147 Lord, Reid said:

'But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions, giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive'.

In the same case, Lord Pearce said:-

'Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an enquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage while engaged on a proper enquiry. The tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which the Parliament did direct. Any of these things would cause its purported decision to be a nullity.'

The dicta of the majority of the House of Lords, in the above case would show the extent to which 'lack' and 'excess' of jurisdiction have been assimilated or, in other words, the extent to which we have moved, away from the traditional concept of 'jurisdiction'. The effect of the dicta in that case is to reduce the difference between jurisdictional error and error of law within jurisdiction almost to vanishing point. The practical effect of the decision is that any error of law can be reckoned as jurisdictional. This comes perilously close to saying that there is jurisdiction if the decision is right in law but none it it is wrong. Almost any misconstruction of a statute can be represented as their decision on a matter with which they have no right to deal, 'imposing an unwarranted condition' or 'addressing themselves to a wrong question'. The majority opinion in the case leaves a Court or Tribunal with virtually no margin of legal error. Whether there is excess of jurisdiction or merely error within jurisdiction can be determined only by construing the empowering statute, which will give little guidance. It is really a question of how much latitude the Court is prepared to allow. In the end it can only be a value judgment (See H. W. R Wade, 'Constitutional and Administrative Aspects of the Anismenic case'. Law Quarterly Review, Vol. 85, 1969, p. 1971 Why is it that a wrong decision on a question of limitation or res judicata was treated as a jurisdictional error and liable to be interfered with in revision It is a bit difficult to understand how an erroneous decision on a question of limitation or res judicata would oust the jurisdiction of the Court in the primitive sense of the term and render the decision or a decree embodying the decision a nullity liable to collateral attack. The reason can only be that the error of law was considered as vital by the Court. And there is no yardstick to determine the magnitude of the error other than the opinion of the Court.'

Mathew, J., in paragraph 12 of the judgment pointed out that in that particular case before the Supreme Court the trial Court had jurisdiction to pass the order for discovery. Even if lack of jurisdiction was assumed to result from every material error of law - even an error of law within the jurisdiction in the primitive sense of the term - the Supreme Court did not think the order was vitiated by any error of law. The rejection of the application for time and the consequent dismissal of the petition for Permission to sue in forma pauperis could hardly be aid to sound in jurisdictional error even in the extended sense as already explained. It is thus clear that on the facts of that particular case the Supreme Court found that there was no error of law committed while passing the order for discovery of documents. It must be pointed out that while citing with approval the passages from the decision of the House of Lord in Anisminic Ltd. v. Foreign Compensation Commission, (1969-2 AC 147) regarding the meaning of the word jurisdiction' and the scope of the concept of 'jurisdiction', Mathew. J., has not overruled any of the earlier decisions either of the Privy Council or of the Supreme Court. It may be pointed out that the decision in M. L. Sethi v. R. P. Kapur (supra) was rendered by a bench of two Judges consisting of P. Jaganmohan Reddy and Mathew, JJ., and the earlier decision in, Abbasbhai v. Gulamnabi (supra) was delivered by a Bench of the Supreme Court consisting of three Judges, namely, A. K. Sarkar, J. C. Shah and Raghubar Dayal, JJ. The decision in D. L. F. Housing etc. Co. v. Sarup Singh (AIR 11971 SC 2324) (supra) was by a bench of the Supreme Court consisting of Vaidialingam and Dua, JJ. and in Chaube Jagdish Prasad v. Ganga Prasad : AIR1959SC492 (supra) the decision of the Supreme Court was rendered by a bench consisting of Imam, Das and J. L. Kapur, JJ. It is, therefore, not possible for us to accept the contention of Mr. Majumdar that these observations of Mathew, J., regarding the meaning of the word 'jurisdiction' in the context of Section 115 of the Code of Civil Procedure introduced a new concept, because the bench of two Judges of the Supreme Court could not have overruled and has not in fact overruled any of the earlier decisions of the Supreme Court on the question. We are unable to accept the contention of Mr. Majmudar that any new departure has been made by the Supreme Court in M. L. Sethi v. R. P. Kapur (supra) so far as the interpretation regarding the scope of the power of the High Court under Section 115 of the Code of Civil Procedure is concerned. In any event, in view of the interpretation put upon Section 36 of the Stamp Act by the Supreme Court in Javer Chand v. Pukhraj Surana : [1962]2SCR333 (supra) it is clear that so far as the decision to admit a document into evidence is concerned, the decision of the trial Court is to be final and so far as the parties are concerned, the matter is closed. It is all the greater reason, therefore, that under Section 115 of the Code of Civil Procedure at least as regards the decision to admit a document is concerned, the High Court cannot have any power under Section 115 of the Code of Civil Procedure to interfere with the order holding that the document is properly stamped and should be admitted in evidence. As pointed out earlier, the Stamp Act is a fiscal measure and even if a trial Court has decided the question of admissibility wrongly, no superior Court, either of appeal or revision, can interfere with that decision. It is particularly in the context of Section 36 of the Stamp Act that we have to consider the applicability of Section 115 and taking the provisions of Section 36 of the Stamp Act in conjunction with the interpretation put upon the power of the High Court under Section 115 of the Code of Civil Procedure, in our opinion, it is clear that the observations of Mathew J., in M, L. Sethi v. R. P. Kapur (supra) do not alter the legal position in any respect.

15. Just as in the case of Abbasbhai v. Gulamnabi : [1964]5SCR157 (supra), the Court functioning under the Rent Act had jurisdiction to decide the question under Section 12 (3) (b) of the ,Rent Act, similarly in the present case, under the provisions of the Code of Civil Procedure, the trial Court had the jurisdiction to decide the question of admissibility and under the clear scheme of Section 36 the decision of the trial Court regarding the admissibility of the document and to admit the document is final and is not liable to be revised or reviewed in appeal by any superior Court.

16. Under these circumstances at least so far as the question of maintainability of a revision application under Section 115 of the Code of Civil Procedure against the decision to admit or not to admit a document is concerned no difference whatsoever is made to the legal position as explained in Prabhudas v. Bhogilal : AIR1968Guj236 (supra) by the Division Bench of this Court and the observations of Mathew J., in M. L. Sethi v. R. P. Kapur : [1973]1SCR697 (supra) make no difference to the legal position as there explained.

17. Mr. Majmudar for the petitioner drew our attention to several decisions of the different High Courts to which we will now briefly refer. In Poonamchand v. M/s. Bastiram AIR 1964 Raj 313, in paragraph 4 the question was under the Stamp Act. Jagat Narayan J., sitting singly, held that it was only a decision on merits arrived at in the proper exercise of jurisdiction which could be, corrected on an application under Section 115 of the Code of Civil Procedure, on the ground that it was erroneous in law. All procedural errorr. fell under clause (c) and the question as to whether a document was admissible or not admissible was a matter of procedure. The first preliminary objection under Section 115 had therefore no force. With respect to the learned Judge of the Rajasthan High Court, we are unable to accept his conclusion because the effect of the different decisions of the Supreme Court which we have referred to in the course of this judgment, was not considered by the learned Judge.

18. The next decision relied upon by Mr. Majmudar was Union of India v. R. M. Agarwal : AIR1971Bom52 . Bhole J. sitting singly in that particular case was not concerned with the question of Stamp Act and hence it is not necessary for us to refer in details to that decision. Bhole J., there held that where the lower Court came to the decision that an endorsee to railway receipt could file suit against railway though he is not owner of goods, the decision was contrary to a rule of law and the lower Court having acted in exercise of jurisdiction illegally or with material irregularity, the decision could be interfered with under Section 115.

19. In Raghunath v. Seetharama AIR 1972 Mys 344, Datar J., of the Mysore High Court sitting singly held that where the Court below decides the question arising under the Stamp Act and passes an order that the disputed document is a promissory note duly stamped and as such is admissible in evidence the order has to be challenged without delay in revision and cannot be kept for adjudication at a later stage. The contention that the document could also be considered as bond and higher stamp duty as, a bond has to be paid on the document, could not be considered, and that question was not raised in the Court below and, was being urged for the first time at the hearing of revision petition. With respect to the learned single Judge of the Mysore High Court we are unable to accept his reasoning particularly because the learned Judge has not considered the full effect of the different decisions of the Supreme Court regarding the scope of Section 115 of the Code of Civil Procedure.

20. The, next decision relied upon by Mr. Majmudar was Ramnath v. Ram Bahadu : AIR1973All290 , where O. P. Trivedi J., sitting singly has, considered, the question of maintainability of a Revision Application against an order deciding the question of admissibility in evidence of a document for want of registration. He held that the reading by the lower appellate Court, of an award which was inadmissible in evidence for want of registration (even for a collateral purpose) amounted to a material error of procedure in the exercise of jurisdiction within the meaning of Section 115, clause (c). So far as the effect of clause (c) of Section 115 is concerned, we are unable to agree with the conclusion of the learned single judge of the Allahabad High Court because, in our opinion, after the decision of the Supreme Court in Keshardeo v. Radhakisan (supra) it must be held that clause (c) of Section 115 applies only to the manner of arriving at the decision rather than to the decision itself.

21. In Sanjay Cotton Co. v. Omprakash : AIR1973Bom40 which has been relied upon by Mr. Majmudar, the facts were such that on any interpretation of Section 115 the Revision Application would be maintainable. The learned single judge of the Bombay High Court there held that if in the conduct of the proceeding pending in the lower Court, a matter has been concluded with material irregularity or illegality, the High Court can interfere in revision even at the interlocutory stage of the proceeding. Refusal by the Court of permission to cross-examine upon documents not admitted, amounted to material error apparent on the face of the record. The real question, therefore, before Majmudar J., was about the manner of arriving at the decision and the procedural error committed by the trial Court rather than about the error of law committed in the exercise of jurisdiction vested in it by law.

22. The next case which has been relied upon by Mr. Majmudar is C. A. Fernandes v. A. L. P. Furtado, AIR 1975 Goa, Daman & Diu 27. In paragraph 9 of the judgment of the learned Additional Judicial Commissioner who was sitting singly it has been pointed out that the learned trial Judge had acted with material irregularity in. shutting out evidence at the preliminary stage itself with the result that virtually the applicant-defendant had become defence less. This irregularity in procedure went to the root of the matter and must be removed at that stage only. The case, therefore, was about the manner of arriving at the decision in any event the learned Additional Judicial Commissioner was not concerned with the problem which is facing us in the present case,

23. Mr. Majmudar drew our attention to a decision given by me sitting singly in Civil Revn. Appln. No. 731 of 1963 decided by me on 11-1-1967 (Guj.). It was a revision application and the question was of admissibility of a document which was said to be insufficiently stamped. However, the question of maintainability of the Revision Application was not raised and had not been considered and that decision cannot help Mr. Majmudar in the present case.

24. He also relied upon a decision of N. G. Shelat J., sitting singly in Civil Revn. Appln. No. 843 of 1962 decided by him on 10-11-1966 (Guj.). In the course of the judgment, dealing with the objection regarding the maintainability of the Revision Application, Shelat J., observed:

'Ordinarily speaking, no doubt the High Court would be slow in interfering in revision against orders passed at an interim stage of the suit, as after the suit is decided, if that part of the order was illegal it would be remedied in appeal. But apart from the considerations contemplated in Section 115 of the Civil Procedure Code, when the fate of the suit virtually depends upon the determination of the nature of the document sued upon and more particularly when by reason of the provisions contained in Section 36 of the Indian Stamp Act, it would not be open to the defendant to challenge that part of the finding later either in appeal or in revision under Section 36 of the Indian Stamp Act.'

The decision in Javer Chand v. Pukhraj Surana (AIR 1961 SC 1655) (supra) was referred to by N. G. Shelat J. With respect we are unable to agree with him on his reading of that decision of the Supreme Court. He observed later on-

'Not to allow any such matter being agitated in revision against such an order would be to deprive him of a remedy against an order which according to him is not legal. It is, therefore, clear that much though the order challenged is one passed at an interim stage of the suit on a preliminary issue raised by the Court, it is an order which if it is found to be illegal the High Court in revision would be justified in interfering under Section 115 of the Civil Procedure Code.'

With respect to N. G. Shelat J., we are unable to agree with this reading of the scope of Section 115 of the Code of Civil Procedure particularly when he has not considered the scope of the different clauses of Section 115.

25. Under these circumstances and in the light of the above discussion, we hold that the decision of the Division Bench of this Court in Prabhudas v. Bhogilal (AIR 1968 Guj 236) (supra) and, particularly what has been mentioned in paragraph 9 of the judgment is in no way modified by the observations of Mathew J., in M, L. Sethi v. R. P. Kapur : [1973]1SCR697 (supra). We must make it clear that we are confining our decision only to the scope of Section 115 of the Code of Civil Procedure in the context of a decision to admit or not to admit a document in evidence on the ground of sufficiency or otherwise of stamp and in the context of section 35 proviso (a) of the Indian Stamp Act.

26. Under these circumstances we hold that the Civil Revision Application is not maintainable and the same should, therefore, be dismissed. The rule is discharged. In view of the fact that there was considerable scope for argument as regards the law relating to maintainability of the Civil Revision Application, there will be no order as to costs.

27. In view of the fact that this is a pretty old matter, the trial Court is directed to dispose of the matter as expeditiously as possible and preferably within three months from today. Writ to be sent down immediately.

28. After the above judgment was pronounced in open Court, Mr. Majmudar for the petitioner, applied under Article 133(1) of the Constitution for leave to appeal to the Supreme Court. In our opinion, the points that we have decided in this matter are all covered by one or the other decision of the Supreme Court and hence now there is no substantial question of law of general importance which is needed to be decided by the Supreme Court. In view of this conclusion, the oral application is rejected.

29. Application dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //