DELHI BOX CO Vs. MUNSHI LAL ABHINANDAN KUMAR

JUDGEMENT

(1.) M/s. Munshilal Abhinandan Kumar plaintiff-respondent filed a suit for recovery of Rs. 7500.00 on account of price of goods alleged to have been supplied to the defendant-petitioner. During the course of evidence a receipt dated 7-7-1983 for Rs. 671.50 alleged to have been executed by Mr. S.K. Jain, on behalf of the plaintiff in favour of defendant was proved by Sardari Lal defendant appearing as D.W. I and it was marked as Exh. D.W. 1/2. On 3-5-1983 when this witness was being cross-examined, the counsel for plaintiff pointed out that the receipt was unstamped and therefore it could not have been exhibited. The trial court by order dated 3-5-83 de-exhibited the receipt and marked it as 'B'. On 9-5-83 the defendant filed an application under Order 47, Rule 1, Order 18 Rule 10 & 11 and Section 151 Civil Procedure Code pointing to the Trial Court that on 3-5-83 counsel for defendant was not present though his presence had been recorded, that the order de-exhibiting receipt was erroneous on the face of record and therefore it should be recalled. The Trial Court held that the receipt was not executed by the plaintiff but by Mr. S.K. Jain and even on payment of penalty of Rs. l.00 under the proviso (b) to Section 35 of the Indian Stamp Act the receipt was inadmissible in evidence, that there was no error apparent on the face of the record, that the receipt was exhibited inadvertantly and contrary to law. The Court dismissed the application. The defendant has filed this Revision under Section 115 CPC.

(2.) Learned counsel for the petitioner submits that the r eceipt was executed by Mr. S.K. Jain, on behalf of plaintiff on the letter-head of the firm, that admittedly S.K. Jain was an employee of the plaintiff and therefore on payment of penalty Rs. l.00 under proviso (b) Section 35 of the Indian Stamp Act, e receipt is admissiblen evidence. He further submits that even if the receipt was not duly stamped and as such not admissible, the court has no power to question the admission of the document in evidence subsequently under Section 36 of the Indian Stamp Act.

(3.) Section 35 proviso (b) of the Indian Stamp Act reads as under :