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Pitambar Das Vs. Rajmata Srimati Shanti Devi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal No. 33 of 1954
Judge
Reported inAIR1957HP23
ActsStamp Act, 1899 - Sections 36 and 61 - Schedule - Article 1; ;Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 17 - Order 13, Rule 4; ;Limitation Act, 1908 - Section 19
AppellantPitambar Das
RespondentRajmata Srimati Shanti Devi
Advocates: Man Mohan Nath, Adv.
DispositionAppeal dismissed
Excerpt:
.....in evidence if that endorsement is made by judge without applying its mind - facts revealed that trial judge made endorsement after applying its mind - appeal dismissed. judgment ramabhadran, j.c. 1. the suit, out of which this second appeal by a defendant, has arisen, has had a chequered career. rajmata shanti devi of bushahr instituted a suit against pitambar das (the appellant in this court) for the recovery of rs. 3,000 on 5-12-1950. the suit was dismissed by the trial court (senior subordinate judge of mahasu) on 31-12-1951. the plaintiff then went up in appeal to the learned district judge, who, on 21-8-1952, remanded the suit to the trial court with certain instructions. against that remand order, the defendant pitambar das came up in revision to this court. my learned..........in evidence and what documents or portions of documents had been taken into consideration by a trial judge in arriving at his conclusions. under those circumstances, a division bench of the lahore high court held that : "although no objection was raised in the grounds of appeal to the course adopted, the proper course was to remand the case for proper trial." here, as learned counsel for the respondent pointed out, the trial court, obviously, applied its mind to the question of admissibility, because not only were the receipts impounded, but further a penalty of re. 1 was realised on the original (in the case of both exs. p.a. and p.b.). therefore, the above ruling, in my opinion, would not be applicable to the facts of this case--even if some of the details had not been noted, as.....
Judgment:

Ramabhadran, J.C.

1. The suit, out of which this second appeal by a defendant, has arisen, has had a chequered career. Rajmata Shanti Devi of Bushahr instituted a suit against Pitambar Das (the appellant in this Court) for the recovery of Rs. 3,000 on 5-12-1950. The suit was dismissed by the trial Court (Senior Subordinate Judge of Mahasu) on 31-12-1951.

The plaintiff then went up in appeal to the learned District Judge, who, on 21-8-1952, remanded the suit to the trial Court with certain instructions. Against that remand order, the defendant Pitambar Das came up in revision to this Court. My learned predecessor, on 3-6-1953, set aside the order of remand made by the District Judge and submitted, therefor, an order under Order 41, Rules 25, Civil P. C. The Court of first instance allowed the plaintiff to amend her plaint, so as to enable her to fall back upon the original consideration.

It then made the necessary inquiry and submitted its report on 2-8-1954. The learned District Judge heard the parties again and as per his order dated 31-8-1954, set aside the decision of the trial Court dated 31-12-1951 and granted the plaintiff decree for Rs. 3000 with future interest at 3 1/4 per cent. per annum. It is against this decision that Pitambar Das has come up in second appeal.

2. Arguments of the learned counsel for the parties were heard on the 19th and 27th instant. I now proceed to deliver the judgment. For reasons to be stated shortly. I am of the opinion that there is no force in this appeal.

3. I shall take up the arguments advanced before me seriatim.

4. In the first place, learned counsel for the appellant urged that the trial Court erred in admitting into evidence Exs. P.A. and P.B., i.e., entries in the plaintiff's account-books dated 8-1-1947 and 11-11-1947 for Rs. 2,000 and Rs. 1,000 respectively. Learned counsel contended that these entries were inadmissible in evidence, because they were not stamped.

He further argued that the trial Court did not apply its mind, when admitting them into evidence and exhibiting them. He further pleaded that the provisions of Order 13, Rule 4 had not been complied with. In support of his argument, Mr. Man Mohan Nath cited the following authorities:--(a) Imam-ud-Din v. Sri Ram Perbhu Dial, AIR 1928 Lah 142 (A).

There, the facts were that the Judge, who tried? the case, omitted to comply, in any way whatsoever, with the requirements of law laid down in Order 13, Rules 4 and 5, and consequently, it became impossible to say what documents the trial Court admitted in evidence and what documents Or portions of documents had been taken Into consideration by a trial Judge in arriving at his conclusions. Under those circumstances, a Division Bench of the Lahore High Court held that :

"Although no objection was raised in the grounds of appeal to the course adopted, the proper course was to remand the case for proper trial."

Here, as learned counsel for the respondent pointed out, the trial Court, obviously, applied its mind to the question of admissibility, because not only were the receipts impounded, but further a penalty of Re. 1 was realised on the original (in the case of both Exs. P.A. and P.B.). Therefore, the above ruling, in my opinion, would not be applicable to the facts of this case--even if some of the details had not been noted, as required by Order 13, Rule 4.

(b) Attilli Venkanna v. Parasuram Byas AIR 1929 Mad 522 (B). There, the facts were that the Judge's initials had been placed on a document by third person by means of a rubber stamp. Under those circumstances, Phillips and Wallace, JJ., observed that:

"A document, although endorsed according to Order 13, Rule 4, cannot be deemed to be admitted in evidence, if that endorsement is made without the Judge having applied his mind to its admissibility, and so can be rejected in spite of such endorsement."

It is obvious that the facts of the present case are entirely different. At the risk of repetition, I may point out that the trial Judge (Sri Om Prakash) not only impounded the receipts, but realised Re. 1 as penalty. He has also signed below the exhibit mark in full. Therefore, this ruling will not help the appellant.

(c) Sadasivier Krishnier v. Meenakshi Iyer, AIR 1933 Mad 781 (C). There, the facts were that the attention of the trial Judge was drawn to the fact that the promissory note in question was not sufficiently stamped at a very late stage, i.e., after the hearing was over and judgment was under preparation. In the course of his judgment, the Judge stated that he had not applied his mind as to the admissibility of the pronote. Under those circumstances, Curgenven, J., held that:

"In view of the statement of the Court itself that no occasion had arisen for it to look at the document and that it had not in fact considered the question of its admissibility, the stage had not been reached at which that admissibility could not be questioned and that the suit was properly dismissed."

Obviously, this ruling is not applicable to the facts of the present case, because far from admitting that he had not applied his mind to the admissibility of the document, the trial Judge went to the extent of impounding the receipt and inflicting a penalty. Therefore, this ruling will not help the appellant.

(d) Jagan Nath v. Mt. Ghauli, AIR 1933 Lah 271 (D). There, the facts were: "An insufficiently stamped document was filed and some evidence was taken on it and it was marked as an exhibit for reference, but the endorsement required by Order 13, Rule 4 was not made. The next day the opposite party objected to the admissibility of the document and the objection was upheld." Under those circumstances, a learned Judge of the Lahore High Court held that:

"There was no judicial determination of the question of the admissibility of the document till the objection was raised and the words "admitted in evidence" in Section 36, Stamp Act, must be taken to mean letting in as a part of the evidence as a result of judicial determination of the question whether it can be admitted in evidence or not, for want or stamp."

As already pointed out, while dealing with the earlier rulings, there was a judicial determination on the question of the admissibility of the entries by the trial Court and, consequently, this ruling will not help the appellant.

(e) Abdul Wahab Saheb v. Pallapotha Kanaka Anjaneyalu, AIR 1935 Mad 888 (E). There, the facts were: "An unstamped hundi exhibited before a Commissioner, appointed by the Court, was given only an identifying mark and no more. The Commissioner had not considered, when exhibited, as to its admissibility in evidence, much less was there any objection raised as to its admissibility was pending before the Court." Under those circumstances, it was held by a learned Judge of that High Court that:

"It could not be inferred in law that there was an admission of the hundi in evidence by the Commissioner, within the meaning of Section 36, Stamp Act."

At the risk of repetition, I may point out that the facts of the present case are altogether different. Therefore, the above ruling will not help the appellant.

5. As against this, the learned counsel for the respondent cited the following authorities:--

(1) Vellayappa Chettyar v. Somasundaram Chettyar, AIR 1935 Rang 160 (P). This has been referred to by the learned District Judge. There, Dunkley, J., held that:

"Where documents have been admitted in evidence in the lower Courts their admissibility cannot be questioned on second appeal."

(2) Lodhi v. Zia-ul-Haq, AIR 1939 All 588 (G). There, a Division Bench of that High Court went a step further and held that:

"There is nothing in Section 36 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. If no objection to the admissibility of a document on the ground of insufficiency of stamp is raised, before the document is admitted in evidence, such objection cannot subsequently be raised."

(3) Ponusami Chettiar v. Kailasam Chettiar, AIR 1947 Mad 422 (H). There, a learned Judge of that High Court held that:

"When the fact of an execution of a document is admitted, it need not be proved and this would be so even when the document in question is not admissible on account of any provision of the Stamp Act."

Learned counsel for respondent pointed out that during the course of his statement, the appellant, Pitambar Das, admitted having executed entries, Exs. P.A. and P.B.

(4) Ganeshi Lal Sharma v. Sm. Snehalata Dassi, AIR 1947 Cal 68 (I). There, a Division Bench of that High Court observed that:

"Where an instrument is admitted into evidence in the trial Court without any objection by any side, under Section 36 no further question relating to the admissibility of the instrument can be raised at the appellate stage."

6. Under Section 36 of the Stamp Act, when 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 it has not been duly stamped, except as provided in Section 61.

Section 61 merely provides for revising of the decisions of the subordinate Courts regarding the sufficiency of stamp duty paid on the instruments. The object of the section is to protect Government revenue. It is not open to the appellate Court under this section to reject a document as inadmissible in evidence, owing to its not being duly stamped, after the document has been admitted by the trial Court.

7. In view of all that has been said above, this contention fails.

8. The next point urged by the learned counsel for the appellant was that of limitation. The Court below has relied upon two admissions made by the defendant on 9-5-1949 and 22-12-1949 Exs. P.W.2/1 and P.W.2/2)--reports submitted by him to the higher authorities. In the opinion of the learned District Judge, these two admissions fall within the purview of Section 19 of the Limitation Act, and would, therefore, save limitation.

Mr. Man Mohan Nath, on the other hand, pleaded that these two entries are not covered toy Section 19 of the Limitation Act and, therefore, limitation could not be saved. Learned counsel for the respondent urged that these entries are not 'acknowledgments of a debt' within the meaning of Schedule I, Article 1, of the Stamp Act, since they were not given with the intent to supply evidence of the debt.

In support of his argument, Mr. Tek Chand Chitkara cited (a) Surajimull Murlidhar Chandick v. Ananta Lal Damani, AIR 1924 Mad 352 (J) and (b) Tilakchand Batanlal Marwadi v. Ramkishan Ganeshdas Marwadi, AIR 1938 Nag 51 (K) (which relied on AIR 1924 Mad 352 (J).). Both these authorities have been referred to by the learned District Judge. The ratio of these decisions is:

"A document is not an acknowledgment within the terms of Article 1, Schedule 1, unless it is given with the dominant intent to supply evidence of the debt. The Court has to apply its mind to the question, looking at the document and the surrounding circumstances, what was the intention with which it was given."

On a perusal of these reports, I concur with the view of the District Judge that they were not meant to supply evidence of debt and, therefore, are not acknowledgments of debt as contemplated by Schedule I, Article 1 of the Stamp Act. The result is they were not required to be stamped. Even if it is assumed for the sake of argument that stamp was necessary, they have already been admitted into evidence by the trial Court and, consequently, their admissibility cannot be questioned here under Section 36 of the Stamp Act. If any authority is necessary for this proposition, please see Shriram Tukaramji v. Maroti Tukaramji, AIR 1945 Nag 212 (L), where Hemeon, J., indicated that:

"When a document, e.g., an acknowledgment, not duly stamped is rejected by the trial Court but admitted by the Court of first appeal its admission cannot be called in question in second appeal by reason of Section 36, Stamp Act."

Consequently, I concur with the view of the Court below that the suit was not time-barred.

9. In the third place, Mr. Man Mohan Nath argued that the appellant was not personally liable to pay the sum of Rs. 3,000 and the Court below has erred in holding otherwise. My attention was invited to the wording of the pronote marked X. Mr. Man Mohan Nath contended that, according to the wording of this document, the sums in question were taken by the appellant from the plaintiffs for defraying the price of grains for Kothazats and, therefore, the liability for repaying the debt, rested on the State and not upon the appellant personally.

Learned counsel also pointed out that the pronote contained a stipulation to the effect that the plaintiff could recover the said amount only after the appellant had been reimbursed by the Rajkumar. The learned Judge of the Court below has rightly remarked that on the objection of the appellant himself the pronote marked X was held to be inadmissible in evidence. Therefore, it was not open to the appellant to rely upon any stipulation contained therein.

Learned counsel for the respondent pointed out that according to the statement of Durga Singh, appellant's witness--who was examined on commission--the claims of the appellant were examined by the Government and after taking all accounts into consideration a sum of Rs. 4,798/2/9 was found due from the appellant, on 11-3-1950. The suit, which has given rise to this second appeal, was instituted on 5-12-1950, i.e., nearly 9 months after the appellant's accounts had been settled.

Consequently, I find considerable force in the argument of the respondent's learned counsel that it is not open now to the appellant to turn round and say that his accounts have not yet been settled by the Government. My attention was also invited, in this connection, to the statement of Pitambar Das, appellant, as D. W 1. Therein, no allegation was made that his accounts were still pending with the Government. Therefore, this plea also fails.

10. Lastly, Mr. Man Mohan Nath submitted that the plaintiff should not have been permitted to amend her plaint so as to fall back on the original cause of action. He elaborated his argument by stating that the amendment was allowed after the expiry of the period of limitation. He cited A. Ramachandra Naidu v. Kandaswami Mudaliar, AIR 1949 Mad 416 (M). There, the facts were "in a suit for damages, brought by the plaintiff in his own personal capacity, an amendment of the plaint seeking to describe the plaintiff, as the manager of the joint Hindu family was asked to be allowed. Under those circumstances, a learned Judge of that High Court held that:

"The amendment could not be allowed, where the suit by the manager as such had become barred by limitation since the date of the plaint." Mr. Chitkara for the respondent pointed out that my learned predecessor, while rejecting a revision petition made by Pitambar Das, observed on 3-6-1953 that:

"I hold that the jurisdiction with regard to amendment having been exercised by the lower appellate Court properly, the order in question is not open to revision."

Mr. Chitkara, therefore, contended that the matter cannot be reagitated. He further pointed out that the appellant's counsel had accepted the sum of Rs. 100/- awarded as costs by the District Judge as a condition precedent to the amendment of the plaint. Mr. Chitkara, therefore, contended that the appellant cannot make a grievance of this matter. He relied upon Sodhi Lal Singh v Lala Bihari AIR 1937 Lah 895 (N), where a learned Judge of that High Court held that:

"Where an amendment is allowed by the Court subject to the payment of adjournment costs, the party accepting such costs and thus adopting the order, cannot challenge it by way of appeal."

I am of the opinion, therefore, that, under the circumstances, it is not open to the appellant now to say that amendment should not have been permitted. This contention, therefore, fails.

11. No other point was argued. The appeal, accordingly, fails.

ORDER

12. I dismiss the second appeal with costs.


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