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thekedar Roopa Vs. Shah Achalmal - Court Judgment

LegalCrystal Citation
SubjectCivil;Banking
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 79 of 1975
Judge
Reported in1985WLN(UC)178
Appellantthekedar Roopa
RespondentShah Achalmal
DispositionAppeal allowed
Cases ReferredJawerchand and Ors. v. Pukhraj Surana
Excerpt:
civil procedure code - promissory notes--admitting in evidence--promissory note referred in examination-in-chief and cross examination of parties--it is admitted in evidence for all purposes--held, suit cannot be dismissed on ground that it is not admissible in evidence;the promissory note ex. 1 was referred to by the parties in their statements recorded during trial. it was referred to in their examinations-in-chief as well as cross-examinations. thus, it was admitted in evidence for all purposes. it was not open to the trial court to dismiss the suit simply on the ground that it was not admissible in evidence.;appeal allowed. - - it was referred to in their examination-in-chief as well as cross-examinations......rs. 1163.75 against the defendant in the court of munsif, sirohi on may 29, 1970 on the foot of a promissory note ex. 1. it was alleged that the defendant executed promissory note ex. 1 for the consideration of a sum of rs. 1000/-. he undertook to pay the said amount with interest at rate of rs. 6% per annum. the defendant made no payment despite notice. the plaintiff, therefore, claimed a sum of rs. 1000/- as principal and rs. 117.75 as interest and notice charges the total being of a sum of rs. 1163.75. the suit was resisted by the defendant. he denied the execution of promissory note ex. 1. a defendant was also taken that the promissory note ex. 1 being not duly stamped, is inadmissible in evidence. relevant issues were raised and evidence of the parties was recorded. the parties.....
Judgment:

S.S. Byas, J.

1. This is a plaintiff's civil second appeal who lost his money suit in both the courts below.

2. The plaintiff instituted a suit for the recovery of a sum of Rs. 1163.75 against the defendant in the Court of Munsif, Sirohi on May 29, 1970 on the foot of a promissory note Ex. 1. It was alleged that the defendant executed promissory note Ex. 1 for the consideration of a sum of Rs. 1000/-. He undertook to pay the said amount with interest at rate of Rs. 6% per annum. The defendant made no payment despite notice. The plaintiff, therefore, claimed a sum of Rs. 1000/- as principal and Rs. 117.75 as interest and notice charges the total being of a sum of Rs. 1163.75. The suit was resisted by the defendant. He denied the execution of promissory note Ex. 1. A defendant was also taken that the promissory note Ex. 1 being not duly stamped, is inadmissible in evidence. Relevant issues were raised and evidence of the parties was recorded. The parties examined themselves and adduced no other evidence. On the conclusion of the trial, the learned Munsif held that the defendant had executed promissory note Ex. 1 for consideration in favour of the plaintiff. He further held that since it was not duly stamped, it was not admissible in evidence. The suit was dismissed. The plaintiff went in appeal, which was heard and decided by the learned Civil Judge, Sirohi. By his judgment and decree dated July 23, 1974, the learned Civil Judge dismissed the appeal. He agreed with the trial court that since the promissory note Ex. 1 was not duly stamped, it was not admissible in evidence. Hence the plaintiff has come-up in second appeal.

3. I have heard Mr. H.C. Jain, learned counsel appearing for the appellant and Mr. S.R. Singhi, learned counsel for the defendant-respondent. I have also gone through the case file carefully.

4. In assailing the judgments and decrees of the courts below, it was contended by Mr. Jain that the whole approach of the courts below was erroneous. Once the promissory note Ex. 1 was admitted in evidence and evidence was recorded in proof of it later on it cannot be held to be inadmissible in evidence. The suit should not have been, therefore, dismissed. In support of his contention, reliance was placed by him on Jawerchand and Ors. v. Pukhraj Surana AIR 1961 SC 1965. It was, on the other hand, contended by Mr. Singhi that promissory note Ex. 1 was not properly stamped, it should not have been admitted in evidence for any reason. 1 have taken the respective submissions into consideration.

5. In my opinion, the case is squarely covered by the observations made by their Lordships in Jawer Chand's case. It was held there in:

Once a document has been marked as an exhibited in the case and has been used by the parties in examination and cross-examinations of their witnesses, Section 36 of the Stamps Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open to either to the trial court itself or to a court of appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same court or a court of superior jurisdiction.

6. The promissory note Ex. 1 was referred to by the parties in their statements recorded during trial. It was referred to in their examination-in-chief as well as cross-examinations. Thus, it was admitted in evidence for all purposes. The defendant did not raise any objection when the promissory note Ex. 1 was being exhibited and evidence was led in proof of it. Thus, when the promissory note Ex. 1 was admitted in evidence, it was not open to the trial court to dismiss the suit simply on the ground that it was not admissible in evidence. The lower appellate court also fell in the same error.

7. The execution of promissory note Ex. 1 by the defendant has been taken as proved by both the courts below. It is a question of fact, on which there is a concurrent finding of both the courts below. The plaintiff's suit should, therefore, be decreed.

8. In the result, the plaintiff's appeal is allowed. The judgments and decrees of both the courts below are set aside. Plaintiff's suit for recovery of a sum of Rs. 1663.75 is decreed against the defendant with pendente lite and future interest at rate of Rs. 3% per annum from the date of institution of the suit till realization. The parties will bear their own costs throughout.


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