arumugha pillai vs vadivel pillai on 29 september, 1993

Madras High CourtArumugha Pillai vs Vadivel Pillai on 29 September, 1993Equivalent citations: (1994) 1 MLJ 474Author: P SinghORDER Pratap Singh, J.

1. This civil revision petition is directed against the judgment in O.S. No. 95 of 19S7 on the file of theDistrict Munsif, Attur.

2. Short facts are: The revision petitioner has filed the suit against the respondent on the foot of apronote. That was resisted by the respondent. After trial, the learned District Munsif had held thatthe suit pronote was insufficiently stamped and hence not admissible in evidence and when that wastaken out of account, the suit claim cannot be sustained and dismissed the suit. Aggrieved by thesaid judgment, the plaintiff has come forward with this revision petition.

3. Mr. S.P. Subramanian, the learned Counsel appearing for the revision petitioner would submitthat the suit pronote was admitted in evidence by the learned District Munsif and while so he cannotat the later stage of the Suit, say that the document was insufficiently stamped and hence it wasinadmissible in evidence. He would further submit that by virtue of Section 36 of the Indian StampAct, 1899, once a document was admitted in evidence, such a document, shall not be called inquestion at any stage of the same suit. He would further submit that the trial Court had admitted Ex.A-1 in evidence and so it ought not have eschewed from evidence at a later stage of the suit on theground that no judicial order was passed with regard to the admissibility of the document, at thetime when it was exhibited. I have heard Miss. S.S. Jayanthi, for Mr. R. Muthukrishnan the learnedCounsel appearing for the respondent, on the above aspects.

4. I have carefully considered the submissions made by rival counsels. The suit is on the foot of apronote for Rs. 2,000. It is marked as Ex. A-1. Only 20paise revenue stamp was affixed, over whichthe alleged signature of defendant finds a place. It is not in dispute that it was insufficientlystamped. In the backside of Ex. A-1, the number of thesuit, the date on which it was admitted and onwhose behalf it was admitted that through whom it was admitted and the mark given for thedocument are all noted and the District Munsif had initialled. As per Order 13, Rule 4, C.P.C. theendorsements on the documents admitted in evidence to be made. As per the said Sub-rule (1) thenumber and title of the suit, the name of the person producing the document, the date on which itwas produced and a statement of its having or initialled by the Judge are all to be endorsed and theendorsement shall be signed or initialled by the Judge, There was no plea in the written statementthat the suit pronote was insufficiently stamped and hence not admissible in evidence. Neither anyobjection was taken for the marking of thedocument, at the time when it was produced andexhibited. Since it was insufficiently stamped, as per Section 35 of the Indian Stamp Act, it shall notbe admitted in evidence for any purpose. But it was admitted in evidence, Mr. S.P. Subramanian,would submit that when once it was admitted in evidence in view of Section 36 of the Indian StampAct, it cannot be questioned at any stage in the same suit. Section 36 reads as follows:

Arumugha Pillai vs Vadivel Pillai on 29 September, 1993

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36. Admission of instrument where not to be questioned: Where an instrument has been admittedin evidence, such admission shall not except as provided in Section 61 called in question at any stageof the same suit or proceeding on the ground that the instrument has not been duly stamped.

Section 61 refers to revision of certain decisions of courts regarding the sufficiency of stamps and weare not concerned about it, in this case. The court below has stated in its judgment that at the timewhen P.Ws. 1, 2 and 3 were examined on 13.8.1987, neither the learned Counsel appearing for theplaintiff nor the learned Counsel appearing for the defendant or the court noted that only 20 paisestamp was affixed in Ex. A-1. The court below has also pointed out that only after Ex. A-1 wasmarked, during cross-examination, the mistake was found out. The court below had stated that onlydue to inadvertence, Ex. A-1 was admitted and exhibited as Ex. A-1 and it was an accepted fact that itwas not judicially considered whether the document was admissible in evidence or not. The courtbelow has also stated that the learned Counsels appearing for both sides had admitted it. The courtbelow proceeds further and has stated that since there was no exercise of judicial mind regarding thequestion whether Ex. A-1 was admissible in evidence or not, at the time when it was exhibited, he isnow holding that it is barred under Section 35 of the Indian Stamp Act. Thus, the trial Court hasclearly, categorically and in unambiguous terms has stated that neither the court nor the counselappearing for the rival sides noted this fact that Ex. A-1 was insufficiently stamped at the time whenit was exhibited and no judicial decision was given regarding admissibility of the same. These factsstated by the court below are very material and relevant while considering whether Section 36 wouldapply to this case or not. The learned District Munsif had relief upon the ruling Ram Rattan v.Bairang Lal and had extracted the relevat portion. It reads as follows:

When the document was tendered in evidence by the plaintiff while in witness box, objection havingbeen raised by the defendants that the document was inadmissible in evidence as it was not dulystamped and for want of registration, it was obligatory upon the learned trial Judge to apply hismind to the objection raised and to decide the objection in accordance with law. Tendencysometimes is to postpone the decision to avoid interruption in the process of recording evidenceand, therefore a very convenient device is restored of marking the document in evidence subject toobjection. This, however, would not mean that the objection as to admissibility on the ground thatthe instrument is not duly stamped is judicially decided. It is merely postponed. In such a situationat a later stage before the suit is finally disposed of it would nonetheless be obligatory upon the courtto decide the objection. If after applying mind to the rival contentions the trial court admits adocument in evidence Section 36 of the Stamp Act would come into play and such admission cannotbe called in question at any stage of the same suit or proceeding on the ground that the instrumenthas not been duly stamped. The court and of necessity it would be trial court before which theobjection is taken about admissibility of document on the ground that it is not duly stamped has tojudicially determine the matter as soon as the document is tendered in evidence and before it ismarked as an exhibit in the case and where, a document has been inadvertently admitted withoutthe court applying its mind as to the question at any stage of the same suit or proceeding on theground that the instrument has not been duly stamped. The court, and of necessity it would be trialcourt before which the objection is taken about admissibility of document on the ground that it isnot duly stamped has to judicially determine the matter as soon as the document is tendered inevidence and before it is marked as an exhibit in the case and where a document has been



inadvertently admitted without the court applying its mind as to the question of admissibility theinstrument could not be said to have been admitted in evidence with a view to attracting Section 36.

5. From the facts stated by the trial court in its judgment, as to how Ex. A-1 came to be exhibited, itis apparent that Ex. A-1 had been inadvertently admitted without the court applying its mind as tothe question of admissibility of the instrument and while so it cannot be said to have been admittedin evidence with a view to attract Section 36 of Indian Stamp Act. The aforesaid ruling of the ApexCourt applies squarely to the facts of this rare case.

6. Mr. S.P. Subramanian, relied upon Basavaiah Naidu v. Venkateswarulu A.I.R. 1957 A.P. 1022 :1956 An. W.R. 490. In that case the facts are: The suit was brought on an insufficiently stampedpromissory note. The promissory note was produced along with the plaint and filed into court.Objection was taken in the written statement to the validity of the pronote. Then issue was framed inthese terms "whether the suit pronote is not true, valid and binding on the defendant?". On the daleof beginning of the trial on 4.9.1951, the defendant's pleader put in a memo, stating that he did notquestion the genuineness of the promissory note but questioned its validity. The plaintiff wasexamined as P.W. 1 and in the course of his evidence, the promissory note was put to him and heproved it. It was thereupon marked as Ex. A-1 in the case. The endorsements required under Order13, Rule 4, C.P.C. were made on the pronote and the initials of the District Munsif also finds a place.Later it was held that the pronote was not admissible in evidence and the trial court and the lowerappellate court had dismissed the suit. Aggrieved by the same, the plaintiff went up on appeal to theHigh Court. The High Court had held that Section 36 would apply even if the document had beenwrongly admitted or admitted without objection. In this case, objection was taken by the defendanteven at the outset that the pronote was insufficiently stamped. Despite that when the plaintiff wasexamined, it was allowed to be proved without any objection and it was admitted in evidence andexhibited. On those facts, it was so held. In the case before me, as I have indicated above, the factthat Ex. A-1 was insufficiently stamped went unnoticed by the learned Counsels appearing for bothsides and as well as by the court and it was inadvertently marked. In the circumstances, the ratio ofthe ruling of the Apex Court alone would apply to this case.

7. Mr. S.P. Subramanian, would rely upon Worrier v. Kochunarayana . In this case, a Division Benchof the Kerala High Court had held that once a court, rightly or wrongly decides to admit a documentin evidence, so far as the parties are concerned, the matter is closed and the admission cannot becalled in question at any stage of the suit or the proceeding on the ground that the instrument hadnot been duly stamped. In para 5, the learned Judges had laid as follows:

The words of the section are clear, and there can be no doubt that once a document has beenadmitted in evidence-as in this case its admissibility cannot be questioned on the ground that it hasnot been duly stamped.

Ma. Pwa. May v. Chettior Firm A.I.R. 1929 P.C. 279. The expression "admitted in evidence" means"let in as part of the evidence". To hold as the respondent wants us to do-that a document should notbe considered as having been admitted in evidence unless the court has applied its mind to thequestion of admissibility from the point of view of the stamp law will involve an addition to the



section of the words "after judicially considering the question of sufficiency of stamp" after thewords "admitted in evidence, M.K. Lodhi v. Zia Ul Haq A.I.R. 1939 All. 588, with respect, 1 do notagree with this view of the Kerala High Court, in view of the ruling of the Apex Court referred tosupra.

8. Mr. S.P. Subramanian, would further rely upon Simmadri v. Varalakshmi A.I.R. 1962 A.P. 398 :(1962) 1 An. W.R. 156 : (1962) 1 An. L.T. 247. In this case, the court took objection, at the time of thepresentation of the plaint, that the suit promissory note was insufficiently stamped and returned theplaint for the specific purpose of enabling the plaintiff to pay the penalty. The plaint was there afterrepresented with the requisite penalty and at the stage of the trial of the suit, the promissory notewas tendered in evidence. The document was then marked and admitted and the endorsementsappearing thereon were initialled by the presiding officer as required by Order 13, Rule 4, C.P.C. andno objection was taken regarding the admissibility of the document. It was held that the documentwas admitted in evidence, and such admission could not be called in question at a subsequent stageof the proceeding on the ground that it had not been duly stamped. In this case, the fact that thepronote was insufficiently stamped was brought to the knowledge of the court even at the time of thefiling of the plaint. Then later, when that trial commenced, it was admitted, in evidence without anyobjection on the side of the defendant. In such circumstances, it was held that Section 36 wouldcome into play. But the facts of the case before me are difference. Hence this ruling does not apply.

9. In Javer Chand v. Pukh Raj Surna A.I.R. 1951 S.C. 1655, the facts are: Suit was laid on the fact oftwo hundis. The defendant resisted the claim on many grounds, inter alia contending that thehundis were inadmissible in evidence because they had not been stamped according to Stamp Law.It was admitted in evidence. The Apex Court had held that once a document has been marked as anexhibit in the case and the trial has proceeded all along on the footing that the document was anexhibit in the case and has been used by the parties in examination and cross-examination of theirwitnesses, Section 36 of the Stamp Act comes into operation. Once a document has been admitted inevidence, as aforesaid, it is not open either to the trial court itself or to a court of appeal or revisionto go behind that order. Thus, in this case, there was an objection taken by the defendant duringtrial that the two hundis were insufficiently stamped. Thus, that was an issue raised by thedefendant. The facts of the case before me are different. In this case, none of the parties were awareof the facts of the insufficiency of the stamp in the pronote and hence it was inadvertently marked.So the ruling of the Apex Court, which I have referred earlier alone is applicable to this case.

10. From the above rulings, the following principles emerge:

(i) If none of the parties to a suit and the Judge noticed that a document was insufficiently stampedand hence could not be admitted in evidence in view of Section 35 of the Indian Stamp Act, and thedocument was inadvertently marked, Section 36 of the Indian Stamp Act will not come into play.The presiding officer of the court, if at a later stage came to know of the mistake, can eschew it fromevidence,

(ii) If either the presiding officer of the court or any one of the parties therein were aware of the factthat the document was insufficiently stamped but yet the document was admitted in evidence



without any objection by either side, at any subsequent stage of the suit or in appeal or in revision, itcannot be contended that the document was inadmissible in evidence and in these circumstancesSection 36 of the Indian Stamp Act will come into play.

11. This case falls under the first principle referred to above and hence the court below was right ineschewing Ex. A-1 from evidence and while so, the suit has to be necessarily dismissed and thedismissal of the suit by the court below is correct.

12. Mr. S.P. Subramanian, would further submit that even if the suit pronote was held to beinsufficiently stamped and the bar imposed by Section 35 of the Indian Stamp Act would becomeoperative, still the suit can be construed as one laid on the original debt and the court below ought tohave considered the evidence and recorded a finding and without adopting such a procedure hadsimply dismissed the suit and that judgment cannot stand. He relied upon Perumal v. KamakshiA.I.R. 1938 785 (F.B.). In it, the Full Bench had held that if the promissory note embodies all theterms of the contract and the instrument is improperly stamped, no suit on the debt will lie. Section91 Evidence Act and Section 35 of the Stamp Act, bar the way. But if it docs not embody all the termsof the contract the true nature of the transaction can be proved; and where an instrument has beengiven as collateral security or by way of conditional payment, a suit on the debt will lie. Whether asuit lies on the debt apart from the instrument therefore depends on the circumstances under whichthe instrument was executed. The plaintiff cannot avail the benefit of this Full Bench ruling becausethe claim in this case was solely on the fact of the promissory note, which was insufficientlystamped. Hence neither this submission made by Mr. S.P. Subramanian can be accepted.

13. Since none of the submissions made by Mr. S.P. Subramanian finds acceptance with me, theinevitable result is that this civil revision petition is to be dismissed and shall stand dismissed. Nocosts.



arumugha pillai vs vadivel pillai on 29 september, 1993

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