Krishnaswami Nayudu, J.
1. The plaintiff is the appellant. The suit was on a pronote for Rs. 500, dated 16th June, 1946, executed by the defendant in favour of the plaintiff repayable on demand with interest at 9 per cent, per annum. The pronote in the case was admittedly torn where the stamps were alleged to have been affixed. The plaintiff's case is that she entrusted the pronote to her brother for safe custody and when she looked at the pronote prior to the filing the suit, she found that a portion of the pronote bearing the signature of the defendant on the stamps was torn away. In the written statement of the defendant, his case was that the suit pronote was executed nominally and that at a settlement effected between the parties the pronote was discharged and the stamp was torn in the presence of the mediators, but was left with the defendant in connection with the settlement of the disputes with a third party. One of the issues framed in the suit was whether the suit was maintainable as the pronote did not bear the revenue stamps. The suit was filed on 10th November, 1947 and on 4th September, 1948, when evidence was taken the plaintiff examined her brother as P.W. 1 who stated that the defendant signed on two one anna stamps which were affixed on the pronote. The defendant in his evidence stated that only one anna label was affixed. His evidence was supported by the attesting witness D.W. 2 who also stated that only one anna stamp had been affixed. The scribe was the plaintiff's son and he was not examined. On this evidence and also on an examination of the torn portion of the pronote, the learned District Munsif found, accepting the evidence of the defence witnesses, that the pronote was insufficiently stamped and therefore cannot be used in evidence for any purpose whatsoever and dismissed the action. The plaintiff appealed and the appeal was dismissed. The plaintiff has preferred this second appeal and the respondent has not appeared and is unrepresented.
2. It is contended that the pronote was admitted under the provisions of Order 13, Rule 4, Civil Procedure Code, on 19th November, 1947, when it was marked as Exhibit A-1 and that once it has been so admitted and marked as an exhibit its admissibility could not be reopened or questioned on the ground of the document not having been duly stamped having regard to the provisions of Section 36 of the Stamp Act. Section 36 provides that:
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.
On the back of the pronote there is an endorsement that the document was produced on 10th November, 1947 and proved by P.W. 1 on 4th September, 1948 and filed as Exhibit A-1 with the initials of the District Munsif. The marking of the document as Exhibit A-1 by means of this endorsement was relied upon to show that the pronote has been admitted in evidence as required under Section 36 of the Stamp Act.
3. Reliance for this contention is placed on the decision of Anantakrishna Ayyar, J., reported in Alimane Sahiba v. Subbarayudu : AIR1932Mad693 . In that case the defendant admitted execution of the pronote but pleaded discharge. When the argument upon the question of discharge was proceeding the defendant discovered a legal objection to the maintainability of the suit on the ground that the stamp affixed to the note had not been cancelled as required under Section 12 of the Stamp Act and that the promissory note should accordingly be treated as unstamped. The promissory note had been exhibited in evidence and marked as exhibit in the case with an endorsement similar to that which is found in the suit pronote. The learned Judge observed that when once this document has been admitted in evidence and marked as an exhibit, then having regard to the provisions of Section 36 of the Indian Stamp Act, its admissibility could not be re-opened on the ground of the document not having been duly stamped.
4. As to what is the meaning of being 'admitted in evidence' in Section 36 of the Stamp Act was considered by a Bench of this Court in Venkanna v. Parasuram Byas : AIR1929Mad522 , where it was held that
if a trial Judge had not considered the admissibility of a document proved before him the mere endorsement thereon under Order 13, Rule 4, Civil Procedure Code, does not preclude him from considering its admissibility at a later stage of the case.
5. In that case, the suit was on a hundi, which was proved by the 1st defendant and a clerk of the Court stamped the usual endorsement as to the production and admission in evidence of the document and the District Munsif's initials were affixed to this endorsement by a rubber stamp. The District Munsif on a consideration of the document held that it was not duly stamped and therefore inadmissible in evidence and rejected it. Relying on Sugappa v. Govindappa : (1902)12MLJ351 , the Subordinate Judge in appeal held that when the District Munsif had admitted the document and made the endorsement required by Order 13, Rule 4, Civil Procedure Code, it was not open to him to subsequently reject it, and remanded the suit for disposal. As against that order an appeal was preferred to the High Court. Phillips, J., delivering the judgment of the Bench observed that the mere endorsement under Order 13, Rule 4, did not necessarily imply that the admissibility of the document had been considered and that in that case it was clear that the District Munsif had not considered the admissibility until after the endorsement had been made and that this view was in accord with the views taken by the Bombay, Punjab and Nagpur Courts in Chunnilal v. Mula Bai : (1910)12BOMLR466 , Sundar Das v. Peoples Bank of India Ltd. 16 Ind.Cas. 834, and Sitaram v. Thakurdas 50 Ind.Cas. 781, respectively. The case in Sugappa v. Govindappa : (1902)12MLJ351 , was distinguished and it was further observed that what was to be determined in each case is whether there has been an 'admission' or not. It was finally held that the District Munsif was justified in rejecting the document. The facts of the present case are similar to those in the Bench decision in Venkanna v. Parasuram Byas : AIR1929Mad522 , and following the view taken in the said decision the contention of the appellant cannot be sustained. With respect I may also observe that the view taken in that decision represents correctly the meaning that has to be given to the words 'admitted in evidence' in Section 36 of the Stamp Act. It is not a mere marking of the documents as an exhibit that would constitute the document being admitted. It may also be pointed out that the Bench decision. Venkanna v. Parasuram Byas : AIR1929Mad522 , was not placed before the learned Judge in Alimane Sahiba v. Subbarayadu : AIR1932Mad693 .
6. There are later decisions of this Court which may be briefly referred to. Curgenven, J., followed Venkanna Parasuram Byas : AIR1929Mad522 , in the case reported in Sadasivier v. Meenakshi Iyer (1932) 63 M.L.J. 673. In that case, the facts were slightly different. The attention of the Judge to the suit pronote being insufficiently stamped was not drawn till after the case was closed and the note had only been endorsed by the clerk, but not signed or initialled. Curgenven, J., held that the document could not be deemed to have been admitted in evidence until the Judge had applied his mind to a consideration of its admissibility. In that case, however, the endorsement was not initialled or signed by the presiding officer, but the learned Judge observed that all this was quite unessential and what had to be considered was whether the Judge had applied his mind and he not having done so, it could not be held that the document had already been admitted in evidence.
7. In Abdul Wahab Saheb v. Kanaka Anjaneyalu : AIR1935Mad888 , the negotiable instrument which was an unstamped hundi was filed before a Commissioner who was appointed to take evidence and he gave the hundi a mark without considering the question of its admissibility and without following the procedure in Order 13, Rules 4 and 6 and it was held that the hundi could not be said to have been admitted in evidence within the meaning of Section 36 of the Stamp Act. Pandrang Rao, J., adopting the view taken in Chunilal v. Mulabai : (1910)12BOMLR466 , considered that 'admitted in evidence' meant the act of letting the document in as part of the evidence but it must be the letting in as a result of judicial determination of the question whether it could be admitted in evidence or not for want of stamp that in other words, the Court admitting it must have applied its mind consciously to the question whether the document was admissible or not. The learned Judge also observed that
It may of course happen in some cases that a document which is not admissible for want of a stamp is allowed by the Court to go in, the question of stamp escaping its notice as well as the attention of the parties. In such cases the admission is a judicial determination of the question, because the Court let in the document on its view that there was nothing against its admission.
The ruling in Venkanna v. Parasuram Byas : AIR1929Mad522 , was understood as holding that unless the question of admissibility of a document was actually considered by the trial Judge, even an endorsement thereon under Order 13, Rule 4, Civil Procedure Code, did not preclude him from considering the question of admissibility at a latter stage of the case.
8. In Satyavati v. Pallaya : AIR1937Mad431 , an award of an arbitrator was objected to being admitted in evidence as being insufficiently stamped and for want of registration; but the learned Judge overruled the objection and admitted it by marking it as an exhibit. At a latter stage of the suit however he upheld the objection and held that it was inadmissible on the ground that it was insufficiently stamped in supersession of the prior order admitting it. The question was whether he had jurisdiction to upset the order already passed by him. Venkataramana Rao, J. quoting with approval the observations of Rankin, C.J. in Nirode Basini v. Sital Chandra : AIR1930Cal577 , that
Under Section 36 it matters nothing whether it was wrongly admitted or rightly admitted or admitted without objection or after hearing or without hearing such objection.
held that the Subordinate Judge had no jurisdiction whatever to reject it after having once admitted it. With reference to the observations of Chandavarkar, J. in Chunilal Tulsiram v. Mulabai : (1910)12BOMLR466 ,
'admitted in evidence' means the act of letting the document in as part of the evidence but it must be letting in as a result of judicial determination of the question whether it can be admitted in evidence or not for want of stamp
the learned Judge observed that there was no warrant for introducing such limitation and qualifying the plain language of Section 36 and that the observations of Chandavarkar, J. must be understood with reference to the facts of the particular case which the learned Judge was dealing. Venkataramana Rao, J. however did not demur to the view taken by Phillips, J. in Venkanna v. Parasuram Byas : AIR1929Mad522 , that a 'mere mechanical act of endorsement is not sufficient to constitute admission in evidence' but following the further observations of Phillips, J. that
Once it has been admitted in evidence in a subsequent stage of the same suit it is clear that under that section objection could not be taken had there been such admission.
held that the Subordinate Judge had no jurisdiction to decide against the admissibility of the document having once admitted it after considering the objection.
9. In Prakasam v. Nagabhushanam : AIR1938Mad938 , the pronote On which the suit was based was contended to be a forgery. The defendant also contended that it was insufficiently stamped and was therefore inadmissible in evidence. But when the case came on for hearing the defendant did not appear. The adjournment asked for was refused. Then the pronote was marked and the suit was decreed. In appeal the appellate Court took the view that the case was one which should have been adjourned by the learned District Munsiff and therefore remanded the suit to the District Munsiff. When the case came before the District Munsiff the defendant pressed his objection that the suit note was inadmissible and the District Munsiff upheld the objection and dismissed the suit. The matter came up in revision to the High Court and Madhavan Nair, J. observed:
The words of Section 36 are clear. It does not explicitly say that there must be a judicial determination of the question in the sense the expression has been explained in some of the judgments. What it says is simply it must be admitted in evidence and if it is admitted in evidence as laid down in the rules of the Civil Procedure Code the plain meaning of the words is satisfied.
In that case, however, the suit having been remanded in appeal to the District Munsiff, the question might arise as to whether the trial Court after remand could not consider afresh the admissibility of the document, even though before remand it might have been admitted in evidence. But that question does not arise in the present case.
10. In Nirodode Basini Mitra v. Sital Chandra Ghatak : AIR1930Cal577 , where Rankin G.J. observed that
Under Section 36 it matters nothing whatever if the document was wrongly admitted or rightly admitted or admitted without objection or after hearing or without hearing such objection.
The document was admitted before the Assistant Settlement Officer who decreed the suit for rent, but when the matter was taken in appeal to the Special Judge he refused the relief asked for because he rejected a down kabuliyat as being insufficiently stamped although it had been admitted in the first Court. It was not therefore a case where during the trial itself the objection was raised and the Court found about the document being insufficiently stamped. These observations of Rankin, C.J., are again quoted with approval by a Bench of the Allahabad High Court in Lodhi v. Ziaul Haq I.L.R. (1939) All. 846, where in the course of the trial itself the document was admitted in evidence when the plaintiff was examined by the Judge of the Small Cause Court. But the case was heard by the successor-in-office and finally by another Judge who succeeded him and a reference was thereupon made to the High. Court as to whether the provisions of Section 36 would apply. In answer to the reference the learned Judges took the view that there is nothing in the section to warrant the conclusion that the section has application only to cases in which the Court has admitted the document after 'consciously applying its mind to the question of admissibility' and that to accede to such a view would be to introduce in Section 36 the words 'after judicially considering the question of sufficiency of stamp' after the words 'admitted in evidence' and that when a Court admits a document in evidence it does or at least is deemed to act judicially and this judicial act of admitting the documents in evidence can at no subsequent stage of the suit be set at naught on the ground that the document was not duly stamped and that unless an objection is raised before the document is admitted in evidence such objection cannot subsequently be raised.
11. The mere fact that the endorsement on the document as required under Order 13, Rule 4, Civil Procedure Code has been made should not in every case be considered sufficient to hold that the document has been admitted. In cases where no objection has been raised as to the admissibility on the ground of insufficiency of stamps and an endorsement of admission under Order 13, Rule 4 is made and the objection to such admissibility is not taken even at any stage of the trial of the suit, it will not be open to any party to raise the objection in appeal before any other forum to which the matter might be taken up. But to hold that by the mere mechanical act of stamping the endorsement under Order 13, Rule 4, the Court has applied its mind as to the admissibility of the document, when the first issue as in the present case,, viz-, whether the suit is maintainable as the pronote does not bear the revenue stamp is pending decision would be to deny the Court the right to reject the document if it is found that it has been insufficiently stamped and therefore inadmissible in evidence. So long as the objection has not been considered by the Court, the endorsement under Order 13, Rule 4 could be considered only to be a mechanical act and not the result of the exercise of the judicial mind as to its admissibility. But if in the course of the trial no objection is taken at all and even if the document is insufficiently stamped and inadmissible in evidence but has been admitted in evidence with the required endorsement under Order 13, Rule 4 and even though in such a case the Court could not be said to have consciously admitted it examining the question of sufficiency of stamps, the Court must in the circumstances be deemed to have exercised its judicial mind and admitted it and the question cannot therefore be reopened in appeal. I am inclined to agree with respect with the view taken by the Bench of this Court in Venkanna v. Parasuram Byas : AIR1929Mad522 , that admission must be the result of the Court considering the admissibility of the document if the admissibility is questioned during the trial and the document must not be considered to be admitted by the mere endorsement under Order 13, Rule 4 appearing on the document. In the present case however, I have no doubt that the fact that it has been endorsed under Order 13, Rule 4, would not amount to an admission of the document as the question as to the maintainability of the suit when the pronote did not bear the revenue stamps was one of the matters in issue in the suit.
12. It is however contended by Mr. Narayanaswami Ayyar that the objection as to the insufficiency of the stamp could at best be considered to have been taken only during the cross-examination of the plaintiff, no mention having been made in the written statement, the only question that arose on the pleading being as to whether the stamps on the pronote were removed by accident as contended by the plaintiff or were torn since the pronote was considered to be discharged as contended by the defendant. But the fact remains that the absence of the stamps on the pronote was considered to be a factor raising the question as to the maintainability of the suit which obviously must be on the ground that a pronote which did not bear any stamp could not be admitted in evidence. It may be that there is no question of insufficiency of stamps raised in the pleadings but the absence of the stamps on the pronote again would invalidate the pronote and make it inadmissible in evidence. Though the language of Section 36 is clear and unambiguous that where an instrument has been admitted in evidence, it cannot be called in question at any stage of the same suit, the admission contemplated under Section 36 must have been the result of a judicial determination as to its admissibility when an objection is raised and the mere stamping the endorsement on the instrument in question under Order 13, Rule 4 prior to the determination as to admissibility could only be a mechanical act which would not constitute 'admission' under Section 36 of the Stamp Act. Much significance cannot therefore be given to the procedural provision under Order 13, Rule 4, which prescribes the method to be followed if a document is admitted in evidence by having the same endorsed with the particulars required under the rule. The observance of the procedure under Order 13, Rule 4 presupposes an admission of the document in evidence, which again should be based on such admission being directed to be made by Court. But if the Court had not applied its mind but allowed it to be endorsed under Order 13, Rule 4 that would not however deprive the Court of the right of rejecting it if, on the consideration of any objection raised as to its admissibility, the Court comes to the conclusion that the document is inadmissible.
13. In the result the appeal is dismissed. As no one appears for the respondent, there will be no order as to costs. No leave.