RAMCHANDRA TEWARY Vs. GAJADHAR DAS

JUDGEMENT

(1.) The plaintiff-petitioner filed a small cause court suit against the defendant opposite parties for realisation of certain money based upon a handnote. The suit has been dismissed by the learned Small Cause Court Judge. Hence, this application under Section 25 of the Provincial Small Cause Courts Act by the plaintiff.

(2.) The handnote in question was proved by the plaintiff-petitioner himself when he deposed as P W 1 on the 28th January 1964, in the Court below. The document was marked as Ext. 1 but after objection. The order sheet of that dale, being order No. 21, indicates that the objection on behalf of the opposite parties was that old stamps were pasted on the document and the requisite stamps which ought to have been pasted at the time of the alleged execution of the handnote were not there it therefore required impounding under Section 35 of the Indian Stamp Act. The Court seems to have accepted this objection and directed the impounding of the document. The document was impounded and a penalty of Rs 5/-, the amount determined on impounding was paid. At the time when the case was decided the learned Small Cause Court Judge found that the handnote if insufficiently stamped or not properly stamped could not be admitted in evidence by impounding under Section 35 of the Stamp Act. In that view of the matter he held that it was not admissible in evidence and. therefore a presumption that the document was for consideration under Section 118 of the Negotiable Instruments Act was not available to the petitioner. He however, considered the evidence of both sides and held that the petitioner has failed to prove that the money was advanced by him to the defendant-opposite parties or that he was entitled to realisation of the amount on the basis of the alleged advancing of the loan. In that view of the matter, he dismissed the suit of the petitioner.

(3.) The learned Advocate-General, who has appeared in support of this application, has placed reliance upon Section 36 of the Stamp Act which says: