GOPALDAS Vs. RAMDEO

JUDGEMENT

(1.) THIS is an application in revision by the defendant against the order of the judge, Small Causes Court, Jodhpur, dated the 29th of July 1954.

(2.) THE only question for determination before this Court is whether the document on which the suit is based is a promissory note and inadmissible in evidence, being unstamped. The trial Court has held that it is a bond and that it can be admitted in evidence on payment of penalty.

(3.) LEARNED counsel for the non-petitioner has raised a preliminary objection that the order of the trial Court amounts to admitting the document in evidence, and that the document haying been thus admitted in evidence, its admissibility cannot be challenged by the petitioner. I see no force in this contention and the objection is fit only to be dismissed. It is clear from the order of the trial Court that it has not yet admitted the document in evidence. It has only passed an order saying that the document would be admissible in evidence if penalty is paid. It is common ground between the parties that the penalty has not yet been paid and therefore, it cannot be said that the trial Court has admitted the document in evidence. On the other hand, it appears that the petitioner filed the present revision petition soon after the said order was made by the trial Court and he obtained an order from this Court directing the trial Court not to accept the penalty till the disposal of this application. Thus he followed the procedure which was suggested in the case of Moonlal v. Sampatlal, ILR (1952) 2 Raj 1010 (A ). In that case it was observed that where a court finds that a document Is not a promissory note and is admissible on payment of duty and penalty, and thereafter the party pays the duty and penalty, the document will be deemed to have been admitted in evidence and, in view of section 36 of the Stamp Act, the finding of the Court cannot be challenged in revision. Where, however, the objecting party desires to challenge such a finding, the proper course for it is to apply to the Court immediately to grant him some time for filing revision against the order and in the meantime not to realize the duty and penalty. It should then file revision during that period and pray to the High Court to stay the proceedings in the lower Court. Learned counsel for the non-petitioner has referred to Ratanlal v. Daudas. ILR (1953) 3 Raj 833: (AIR 1954 Raj 173) (B ). It has been urged by him that in that case, a learned single Judge of this Court had held that the document did not require stamp, that it was admissible in evidence and had remanded the case. On an appeal before a Division Bench of this Court, it was held that the said order amounted to admitting the document in evidence. It is contended by learned counsel that in the present case also, the document should be held to have been admitted by the trial Court on the analogy of the case cited above. The argument is incorrect because in the case of Ratan Lal v. Daudas, (B) it was held by the learned single Judge that the document did not require stamp, that it was therefore admissible in evidence and with that remark he had remanded the case. There was no question of the payment of penalty when it was once decided that the document did not require stamp. In the above case, it was observed by learned Judges of the Division Bench as follows:-