1. The point at issue in this petition is whether the lower Court was right in ruling that a 'rokha' which plaintiff wanted to file was inadmissible in evidence because unstamped. The 'rokha,' in my view, is certainly an acknowledgment of a debt of Rs. 250 due to plaintiff by defendant and is signed by him, and was left in plaintiff's possession. It contains no promise to pay the debt or any stipulation to pay interest or to deliver property. The only factor remaining, by which it may be brought within Article 1 of the First Schedule of the Stamp Act is whether it was obtained in order to supply evidence of such debt. Plaintiff argues that it was not obtained for that purpose because it is a mere note or extract of defendant's accounts, which plaintiff summoned for but defendant suppressed. Such a point is not one which can be decided on the terms of the document alone. The surrounding circumstances have also to be considered. Now the lower Court rejected the document in limine before any evidence as to 'these circumstances had been led and owing to his action, it is probable, as is urged before me, that all the evidence available regarding these circumstances was not put forward. Even as it is, there is evidence in Exs. A, B and D practically unanswered so far by defendants, which assert definitely that the 'rokha' is only a copy of defendant's own accounts, in which the actual acknowledgment was entered.
2. In the view he took of the case the Subordinate Judge held that it had to be decided purely on the oral evidence. It is plain that he rejected the 'rokha' without allowing oral evidence as to the surrounding circumstances to be led, on which evidence it was his duty to record a finding whether or not the dominant idea in obtaining the document was to obtain evidence of the debt. See the case quoted by the Subordinate Judge in Surjumull Murlidhar Chandick v. Ananta Lal Damani 18 L.W. 485 A.I.R. 1922 Mad. 352.
3. The case must, therefore, go back. I reverse the decree of the lower Court and direct that this case be re-heard in the light of the above remarks. Costs up to date will abide the result.