GH MOHD LABROO Vs. HABIB ULLAH

JUDGEMENT

(1.) This is a revision petition under the Small Causes Court Act against a decree passed by the City Munsiff for Rs. 500 with costs against the petitioners in favour of the respondent. The case originally came up before one of us, but owing to conflict of authority on the point was referred to a Division Bench. The suit was originally instituted in the court of the Judge Small Causes Court Srinagar and then was transferred to the court of the City Munsiff Srinagar. The learned Munsiff heard the case, recorded the evidence, and then decreed tha suit as indicated above,

(2.) A preliminary objection was raised by the learned counsel appearing for the respondent that as the decree was passed by the City Munsiff the decree was appeal able and this revision was incompetent. This objection of the respondents learned counsel does not merit any consideration in view of S. 24 (4) of the Civil P. C. which lays down that the court trying any suit transferred or withdrawn under this section from a small causes court shall for the purpose of such suits be deemed to be a court of small causes. This subsection clearly means that even, if the suit is heard by a regular civil court but has been transferred from the court of Small Causes, the regular court will be deemed to be a court of small causes for the purposes of this suit. The decree passed by the City Munsiff in this suit will be considered to be a decree of the court of small causes and hence this revision is maintainable. The only point that was argued before us was that the pronote which was the main document in the suit was inadmissible in evidence as not being properly stamped. Before we discuss this point, it is very necessary to be clear about the facts of this case. The plaintiff originally did not bring the suit on the basis of the pronote but in para (1) of his plaint he stated that the defendants for their own business had borrowed Rs. 750 as loan from the plaintiff on the basis of a receipt dated 6th May 58 and other documents. They had agreed to repay the debt on demand. The plaintiff admitted having received Rs. 250 on account of the debt and sued for the balance of the loan advanced. During the trial the pronote was produced in the court. It is not disputed that this pronote is not properly stamped and further it is admitted that under S. 35 of the Stamp Act this pronote is inadmissible in evidence. The plaintiff feeling the weakness that the promissory note, by means of which the loan had been advanced, was not admissible in evidence did not mention the promissory note at all in this plaint. On the other hand he tried to base his suit on the receipt that was executed by the borrowrers at the time of taking this loan and the execution of the pronote. He has very cleverly used the words receipt dated 6th May 58 and other documents. Other documents are the pronote in dispute and no other. The receipt also cannot furnish him an independent cause of action because the recitals in the receipt itself are that Rs. 750 were received by the petitioners as the loan borrowed on the basis of a separate pronote of even date. Therefore these two documents, the pronote and the receipt of 6th May 58, are part and parcel of the same transaction. The receipt is an acknowledgment of the receipt of money and the pronote forms the terms of the contract between the parties.

(3.) THERE has been a lot of controversy on this proposition of law amongst different High Courts and in the same High Court from time to time as to when a promissory note or a bill of exchange is inadmissible in evidence for want of proper stamp duty whether the person in whose favour the promissory note is executed can lead other evidence independent of the promissory note and prove the transaction. As will appear from this judgment courts have laid down different standards and there is a clear conflict of opinion on this point. Before discussing the Indian law and only a few of the conflicting authorities on this point, it will be desirable to say something about the English law on the subject. The tendency in England has always been to ignore as far as possible stamp objections. In Roscoes Treatise on Evidence in Civil Actions (Edn. 20 vol 1 page 226) it has been observed : -