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Heirs of Decd. Mohomadbhai Umarbhai Pathan and ors. Vs. Shah Fulchand Kasturchand and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1985)1GLR363
AppellantHeirs of Decd. Mohomadbhai Umarbhai Pathan and ors.
RespondentShah Fulchand Kasturchand and ors.
Excerpt:
- .....the original defendants nos. 3 and 4, being aggrieved by the interim order passed by the learned trial judge, i.e. judge, small causes court, ahmedabad in h.r.p. suit no. 981 of 1976 on his file. before the learned trial judge, one document marked 87/1 was admitted into evidence by giving ex. 89. thereafter, the original defendants nos. 1 and 2 gave an application ex. 100 contending that the document was inadmissible in evidence because it was insufficiently stamped and because it required registration. the learned judge by his order below ex. 100 allowed that application on the ground that the document was insufficiently stamped. being aggrieved by the said order, the original defendants nos. 3 and 4 have invoked this court's revisional jurisdiction under section 115 of the civil.....
Judgment:

N.H. Bhatt, J.

1. This is a revision application by the original defendants Nos. 3 and 4, being aggrieved by the interim order passed by the learned trial Judge, i.e. Judge, Small Causes Court, Ahmedabad in H.R.P. Suit No. 981 of 1976 on his file. Before the learned trial Judge, one document marked 87/1 Was admitted into evidence by giving ex. 89. Thereafter, the original defendants Nos. 1 and 2 gave an application ex. 100 contending that the document was inadmissible in evidence because it was insufficiently stamped and because it required registration. The learned Judge by his order below ex. 100 allowed that application on the ground that the document was insufficiently stamped. Being aggrieved by the said order, the original defendants Nos. 3 and 4 have invoked this Court's revisional jurisdiction under Section 115 of the Civil Procedure Code.

2. I have heard the learned Advocates for the petitioners and the original defendants Nos. 1 and 2 respectively. The rest of the parties are duly served. Under Section 35 of the Bombay Stamp Act, a document once admitted in evidence cannot be thrown aside on the ground that it is insufficiently stamped. The text of Section 35 is too clear to call for any elaboration. It provides that where an instrument has been admitted in evidence, such admission shall not be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. There is a catena of authorities on this point, reiterating the obvious text of Section 35 of the Act. Rightly or wrongly, once a document has been admitted into evidence, the question of insufficiency of stamp cannot be raised thereafter. The learned trial Judge therefore, in my view, was wrong in exercising his jurisdiction and in passing the impugned order. To that extent, the revision application is required to be allowed, and is allowed, it is declared that the document, ex. 39, cannot be treated as no evidence only because it is allegedly insufficiently stamped. The learned Judge has no jurisdiction to go behind that question once he admitted the document into evidence.

3. I make it clear that the question of registration remains open and even if document is given an exhibit number. If it cannot be read because of its being not registered, that point can be raised at any time. It is a clear point of law that can be canvassed. The revision application accordingly is allowed and the order of the learned trial Judge is set aside in so far as it pertains to the levy of the allegedly deficit stamp duty and penalty thereon, but if the learned Judge still thinks fit that he can send this document to the Collector for taking action under the Bombay Stamp Act, there will be nothing in my order, which would prevent him from doing so. He may retain the copy of this document with the consent of both sides and proceed with the trial and may send the original document for its being legally dealt with by the competent authority, namely, the Collector, exercising the power under the Bombay Stamp Act. Rule is accordingly made absolute with no order as to costs.


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