SANKARA PILLAI Vs. MADHAVI AMMA

JUDGEMENT

(1.) THE plaintiff,now represented by his legal represen­tatives,sued on a promissory note Ext.P -1 dated the 11th February,1956,which was in renewal of an earlier pro­missory note Ext.P -3 dated the 15th February,1953.The defendant contended inter alia ,that Ext.P -1 was not duly stamped and was therefore in admissible in evi­dence.Issue I raised for trial related to this contention.At the trial,the defendant called D.W.1,and even got Ext.P -1 marked in the chief examination itself.After one more witness was called by him,he moved for the dis­posal of issue 1 as a preliminary issue.The court held on issue 1 by order dated the 2nd February,1960,that Ext.P -1 was not duly stamped and was therefore inadmis­sible in evidence and that this objection was open,as it had not been admitted in evidence within the meaning of section 38 of the Travancore -Cochin Stamp Act which was in force at the time.The plaintiff then sought an amend­ment of the plaint so as to sue on Ext.P -3,the original cause of action,which was granted.In the amended plain the plaintiff relied on Ext.P -1 as an acknowledgment under section 19 of the Limitation Act.The contention that Ext.P -1 was inadmissible was repeated.The issue as to limitation was decided in favour of the defendant by the trial court by its judgment dated the 21st September 1960,and the suit was dismissed on that ground,without deci­ding the other issues.In the appeal preferred by the plaintiff against the decree dismissing the suit,the Subordi­nate Judge held that Ext.P -1 having been admitted in evidence,can be acted upon either as a promissory note or as an acknowledgment of the earlier promissory note ;.The suit was remanded for the disposal of the other issues.This Civil Miscellaneous Appeal has been preferred by the defendant against the order passed by the Subordinate Judge. It was contended,that Ext.P -1 had not been admi­tted in evidence within the meaning of section 38 of the Stamp Act,and not being duly stamped,cannot be relied on even as an acknowledgment.In view of the decision of the Supreme Court in Javer Chand v. Pukhraj Surana A.I.R.1961 S.C.1655 ,I do not think it necessary to consider the earlier deci­sions on the subject.The facts of the case before the Supreme Court were similar.In that case too,the plea of inadmissibility for the same reason was raised in the written statement and an issue settled for trial,but the documents,which were two hundies,came to be marked as Exts.P -1 and P -2 when the defendant was examined.Obviously no objection could be taken or was taken to admissibility under such circumstances.The documents were marked with the endorsement ˜admitted in evidence ' ;.In reversal of the opinion of the High Court that the docu­ments could not be deemed to have been admitted in evidence under the corresponding section 36 of the Indian Stamp Act,the Supreme Court held as follows:" Where a question as to the admissibility of a document is raised on the ground that it has not been stamped,or has not been properly stamped,it has to be decided then and there when the document is tendered in evidence ;.. section 35(which corresponds to section 37 of the Travancore -Cochin Act)is in the nature of a penal provision and has far -reaching effects.Parties to a litigation,where such a controversy is raised,have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court.The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case.The record in this case discloses the fact that the hundies were marked as Exts.P -1 and P -2,and bore the endorsement ˜admitted in evidence under the signature of the court.It is not therefore one of those cases where a document has been inadvertently admitted,without the court applying its mind to the question of its admissibility. This case is authority for holding,that the stage at which the objection ought to be raised is when it is ten­dered in evidence for admission and that if the party is not alert to raise the objection then,and the document is ad­mitted without objection,he cannot rely on the fact,that he had at some early stage of the litigation,as in the pleadings,taken the point of inadmissibility or that an issue had been raised and was in the forefront of the trial.In the present case too,although the plea of inadmissibility was in the written statement,and the issue was settled,the defendant himself had the document proved and mar­ked as Ext.P -1,when D.W.1 was examined in chief.I am wholly unable to accept the suggestion that it was so mar­ked,only for showing that it was insufficiently stamped.The endorsement of marking bore the letters Pd over the signature of the presiding officer,which means pro­ved ;,which denotes a stage further than and after that of admission ;.It is strange that having done this,the defendant contends that Ext.P -1 was not admitted in evidence,or that it was admitted inadvertently.Adopting the reasoning of the Supreme Court,I hold that Ext.P -1 was admitted in evidence. The case cited was followed by a Division Bench of this Court in Ettuthara Warrier v.Kochunarayana Menon 1962 K.L.T.528 though it was sought to be distinguished on the ground that the plea was not taken in the written statement which,as I have endeavoured to explain,is not Madhavi Amma of much significance,and that there was no endorsement admitted in evidence &ldquo ;.As to this,the Bench observed:" The expression ˜admitted in evidence means ˜let in as part of the evidence &rsquo ;.To hold as the respondent wants us to do that a document should not be considered as having been admit­ted in evidence unless the court has applied its mind to the question 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 the words ˜admitted in evidence ;.We do not think we need refer to any decision other than A.I.R.1961 S.C.1655 wherein the Supreme Court said that section 36 is categorical in its terms,that when a document has once been admitted in evidence,such admission cannot be called in question at any stage of the suit or the proceeding on the ground that the instrument had not been duly stamped,that the only exception recognised by the section is the class of cases contemplated by Section 61,and that once a court,rightly or wrongly,decides to admit a document in evidence,so far as the parties are concerned,the matter is closed ;. I consider that the above case is not distinguishable. Section 38 of the Travancore -Cochin Stamp Act is not identical in language with section 36,its counterpart in the Indian Stamp Act,in that the words ˜˜at any stage of the same suit or proceeding occurring in the latter,do not find a place in the former.Upon this difference in language an argument was addressed that even if a document is admitted in evidence,there is nothing in section 38 of the Travancore -Cochin Stamp Act which prevents the court from rejecting it as inadmissible under Order XIII,Rule 3 C.P.C.at a later stage of the suit.The difference in language in the two provisions was noticed by Sankaran,J .,as he then was in Noohu Kannu Asan v. The Travancore Forward Bank Ltd .1956 K.L.T.203,but the learned Judge did not proceed to state what,in his view,are its implications.To me it appears,that really there is no distinction in spite of the difference.The relevant part of section 38 of the Travancore -Cochin Stamp Act,that once a document is admitted in evidence,such admis­sion shall not be called in question,means simply,that it shall never be called in question,after such admission;this is the plain meaning of the expression,as no point of time is indicated for the conclusiveness of the admission except that at which the admission in evidence takes place.Perhaps all that was intended or achieved by section 36 of the Indian Stamp Act,is a clarification that such admission shall not be called in question even at a later stage of the same suit or proceeding.The absence of these words in section 38 of the other Act does not matter.The order of the trial court dated the 2nd Feb­ruary,1960,cannot be supported as one passed under Order XIII,Rule 3,C.P.C.nor does it purport to have been so passed.The admission of Ext.P1 has deprived the defendant of his right to object to its inadmissibility. I am also of the view,that the aforesaid order of the 2nd February and the consequential amendment of the plaint,did not preclude the plaintiff from canvassing the propriety of the order in the final appeal from the decree.The order as passed was interlocutory in character;and merely because the plaintiff acted in pursuance of it,in­stead of challenging it and filed the amended plaint,it cannot be imagined,that his right to object to the order in the appeal from the final decree,under Section 105 of the Civil Procedure Code,was taken away.The Subordinate Judge was thus in order in considering the correctness or propriety of the order dated the 2nd February,1960,and he was right in his conclusion that the admissibility of Ext.P -1,whether as a promissory note or otherwise,was not open to question. The other issues arising in the case have not been decided.The defendant has also a contention that Ext.P -1 cannot be used for any purpose on account of a material alteration in it.This has not been considered.It will be open to the trial court to consider this conten­tion as well. The result is that the Civil Miscellaneous Appeal Sankara Pillai fails and is dismissed with costs.