Pandrang Row, J.
1. This is an appeal from the order of the District Judge of Kistna dated 29th August 1932, in appeal reversing the decree of the Subordinate Judge of Bezwada dated 27th April 1931, in O.S. No. 13 of 1929 and remanding the suit for fresh disposal. The suit was one to recover Rs. 4,130 due under a hundi. The only point decided by the trial Court was that covered by the additional issue framed in the case on; 29th October 1930, viz., whether the suit hundi is unstamped and hence the suit is not maintainable. The trial Court found this issue in the affirmative and accordingly dismissed the suit. On appeal the District Judge was of opinion that it was not open to the Subordinate Judge to consider the question of the admissibility of the hundi in view of its previous admission in evidence by the Commissioner appointed by the trial Court. The only point for determination in this appeal therefore is whether the hundi in question was admitted in evidence within the meaning of Section 36, Stamp Act. That section runs as follows:
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.
2. The exception referred to does not apply to the present case, and the only point therefore is whether the hundi was admitted in evidence in the present suit within the meaning of Section 36, Stamp Act.
3. There is no dispute really about the actual facts. The first objection to the inadmissible nature of the hundi in evidence on account of its being not stamped was raised in a petition by defendant 1 to the trial Court on 29th August 1930. The same objection was repeated in a subsequent petition dated 16th October 1930, and a separate issue on the question whether the suit was maintainable in view of the fact that the suit hundi was unstamped was sought to be drawn up. This latter petition came up for orders on 29th October and the order thereon was that the additional issue was ordered to be framed, the plaintiff's advocate raising no objection. In the interval a Commissioner had been appointed to examine certain witnesses at Madras in connexion with the alleged dishonour of the hundi. The Commissioner during his examination of one of the witnesses examined by him on 26th October 1930 exhibited the hundi. The hundi had been sent to him by the Court along with the commission warrant. He says that he gave the document a mark but did not initial or date it. He adds that the question of the document being inadmissible as being an unstamped bill of exchange was not considered by him; nor was it raised by the defendants though some objections had been raised to the form of questions in the course of the evidence. These facts which are elicited from the Commissioner's own evidence are not disputed and the question really is whether from these facts it can be inferred in law that the hundi was admitted in evidence by the Commissioner at all and if so whether such admission is admissible in evidence within the meaning of Section 36, Stamp Act.
4. The marking of the document with the mark Ex. A is not in itself enough to conclude the question whether it was admitted in evidence. The procedure to be followed by Courts when they admit documents in evidence is laid down in Order 13, Rule 4 and 6, Civil P.C. This procedure was obviously not followed by the Commissioner. His evidence also shows that he did not consider the question whether the hundi would be admissible or not in evidence on account of its being unstamped. The circumstances are not sufficient in law to justify the conclusion that there was admission in evidence of the hundi by the Commissioner. All that the facts established show is that it was given an identifying mark and no more. The identifying mark was apparently given to put beyond doubt the particular piece of paper which was actually shown to the witnesses during their examination by the Commissioner. In the circumstances it is impossible to believe that he omission to raise an objection to the marking of this hundi in this manner was due to any waiver of the objections raised by defendant 1 earlier in the Court itself by means of his two petitions. The trial Court found that there was nothing to show that there was any waiver, and the learned District Judge does not deal with the question of waiver at all.
5. Admission in evidence obviously implies some mental decision regarding the question of admitting in evidence. Of course it would involve the decision of an objection if any objection is raised, but even if no objection is raised, it involves a decision to the effect that the evidence should be admitted as such. As stated in Chunilal Tulsiram v. Mulabai (1911) 6 I.C. 903 'admitted in evidence' means the act of letting the document in as part of the evidence; but it must be let in as a result of the judicial determination of the question whether it can be admitted in evidence or not for want of stamp. In other words, the Court admitting it must have applied its mind consciously to the question whether the document is admissible or not. It may, of course, happen in some cases that the document, which is not admissible, for want of 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. In Vankanna v. Parasuram Byas 1929 Mad. 522 also it was held 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 P.C., did not preclude him from considering the question of admissibility at a later stage of the case. This decision was followed in a subsequent case reported in Sadasivier v. Meenakshi Iyer 1933 Mad. 781. The Commissioner's own evidence about which there can be no dispute is to the effect that he did not consider this question at all and, as I have already observed, there can be no doubt that there was no waiver of the objection raised in the Court itself.
6. Apart from this consideration it appears to me that the Commissioner must be deemed to have bad no authority to admit a document in evidence to the admissibility of which objection had been taken in the Court itself and a petition for the framing of an issue raising this question was pending disposal by the Court. In short, the Commissioner did mot obviously admit the hundi as evidence or in evidence according to his own showing, but only gave it an identifying mark for the purpose of reference; he had moreover no authority to admit it in the circumstances of the present case. The words of Section 36 do not seem Ito contemplate admission in evidence, except by the Court itself. If a Commissioner takes evidence that evidence has to be read as evidence in the Court before it can become evidence in the suit. It is only after the evidence taken by a Commissioner is read as evidence during the trial in the Court which appointed the Commissioner that it can be said that any document referred to in such evidence has been admitted in evidence at a particular stage of the suit or proceeding. The delegation of power to the Commissioner by the Court cannot extend to the delegation to the Commissioner of the Court's duty of deciding questions which have been raised or which are sought to be [raised as definite issues in the suit. I am of opinion that the learned District Judge's conclusion that there was admission of the hundi in evidence in this case within the meaning of Section 36, Stamp Act, is contrary to law.
7. The order of the District Judge is therefore set aside. The appellant is entitled to have his costs in this Court and in the lower appellate Court from the plaintiff-respondent. The advocate for the plaintiff-respondent wants time to apply for an amendment of the plaint. Time is given till 8th April 1935. It is now brought to my notice by the respondent's advocate that an application for amending the plaint was filed in the lower appellate Court itself, viz. I.A. No. 955 of 1931, in A.S. No. 225 of 1931. That application was forwarded after the disposal of the appeal to the Subordinate Judge of Bezwada for disposal with the suit; and it would appear that no final order was passed therein in view of the pendency of the present appeal in this Court. As the order of the lower appellate Court is set aside the question whether the plaintiff is to be allowed to amend his plaint is to be dealt with. I am of opinion that the application for amendment of plaint made on 23rd November 1931 in the lower appellate Court is one that ought in justice to be allowed. It is not right that the plaintiff should be deprived of all remedies merely because it is now found that the hundi is not admissible in evidence The amendment prayed for is allowed and the suit is remanded to the trial Court for disposal according to law. The cost in the trial Court incurred already and to be incurred in future will be in the discretion of the trial Court.