SHYAMAL KUMAR ROY Vs. SUSHIL KUMAR AGARWAL

JUDGEMENT

(1.) Heard the learned Advocates appearing for the parties.

(2.) In this application under Article 227 of the Constitution of India, only question has been raised that once any document is admitted in evidence and marked as 'exhibit', subsequently such order whether could be recalled for impounding the instrument in absence of the payment of proper stamp-duty. By the impugned order dated 23rd June, 2005 of this application passed by learned 2nd Civil Judge (Senior Division), Barasat in Title Suit No. 4 of 1999, learned Trial Court refused to recall the order dated 17th February, 2003, as per prayer of defendant-petitioner thereto for impounding the agreement, which was exhibited and marked dispensing with formal proof of document.

(3.) It is the case of the petitioner that as the concerned document being an instrument was not properly stamped, the same was inadmissible in evidence and as such prayer to recall the order dated 17th February, 2003 whereby and whereunder the concerned document was admitted in evidence dispensing with the formal proof of the document and marked as 'exhibit". To adjudicate the point, the Court need not to detain itself as there is a statutory embargo under section 36 of the Indian Stamp Act, 1899 providing, inter alia, that once the instrument is admitted in evidence, save and except, as provided under section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. Section 36 of the Indian Stamp Act reads to this effect: