CHHABILADAS MANGALDAS Vs. LUHAR KOHAN ARJA

JUDGEMENT

(1.) The only question which is raised in this Second Appeal is about the correctness of the decision recorded by the two Courts that the instruments, dated 30th December 1951, was a promissory note within the meaning of the Indian Stamp Act, 1899 (XI of 1899). (Hereinafter called "the Act") and as such, inadmissible in evidence plaintiff Appellant brought the suit from which the Second Appeal arises, for recovering a sum of Rs.769-4-0 from defendant - respondent. The claim was based on the aforesaid document dated 30th December, 1951. When the document was sought to be got admitted in the trail Court, defendant raised an objection that as the document was a promissory note within the meaning of Section 2 sub-section (22) of the Act and as it was not stamped a required by Art.49 of the act, the same was not admissible in evidence under S.35 of the Act. This contention was upheld by the trail court and, on that finding, the suit of plaintiff was dismissed plaintiff preferred an appeal to the District Court Gohilwad at Bhavnagar. The learned District Judge upheld the finding of the trial court and dismissed the appeal. Mr. Hathi on behalf of respondent raises a Preliminary objection, based on Section 102, Civil Procedure Code, 1908. He contents that, a the claim involved in the suit does not exceed Rs.1,000 no Second Appeal lies. The limit of s.1,000 was introduced in Section 102 for the first time by the Amending Act LXVI of 1965, which Act came into operation on 1st January 1957. The suit from which the Second Appeal arises was instituted in the year 1954, before the aforesaid amending act came into force. Before the amendment the limit was Rs.500. Mr. Mankad contends that the question as to whether a Second Appeal lies or not depends upon the value of the subject matter at the date when the suit was instituted and not the value of the subject-matter at the date when the question is raised for the fist time, in the second appeal. Mr. Mankad contends that a right of appeal is a vested right which comes into existence at very inception of the suit and unless the amendment introduced by Act LXVI of 1956 in Section 102 of the Civil Procedure Code 1908, was retrospective, the right to present in Second Appeal, which became vested when the suit was first file, would not be affected in my judgment, the contention of Mr. Mankad is valid and must be upheld. Mr. Hathi was unable to show to me that the amendment introduced by the aforesaid amending Act was retrospective in operation. In the absence of such retrospective operation, it is quite clear that the right of presenting a Second Appeal which became vested at the date of the institution of the suit, would not be affected by the limit being raised from Rs.500 to Rs.1,000.

(2.) The document the admissibility of which is challenged, has been translated by the learned appellate Judge and the translation which is reproduced by him in paragraph 6 of his judgment is as follows:-

(3.) Article 49 of the Act, at the relevant time, required such a document to be stamped with a stamp of two annas. This is not in dispute. It is also not disputed that the document does not bear any stamp whatsoever. Section 35 of the Act enacts that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or by consent of parities authority to receive evidence or shall be acted upon, unless such instrument is duly stamped. Therefore, if the document is a promissory note within the meaning of the Act, it is not disputed that the document would not be admissible in evidence. But the contention of plaintiff all throughout has been that the document is not a promissory note within the meaning of Section 2 sub-section (220 of the Act, that the document is an ordinary agreement, and, that being so, it is admissible in evidence on a penalty being paid. Therefore, the whole controversy in the present appeal turns on the question as to what is the true character of the document in question. Now the expression "promissory note" means a promissory note as defined by the Negotiable instrument Act, XXVI of 1881. Then follows an inclusive definition. It is not necessary for me to reproduce that inclusive definition in the present appeal because t is common ground that that inclusive definition is not applicable to the fats of the present case. Therefore, in order to decide the question as to whether the document in suit is or is not a promissory note , one has to turn to the definition of the expression "promissory note " as given in the Negotiable instrument Act, 1881. That Act defines "promissory note" in Section 4. The definition is as follows:-