CHUNILAL TULSIRAM Vs. MULABAI

JUDGEMENT

(1.) IT is not disputed that Exhibit 36 is inadmissible in evidence for want of stamp. But the question is whether it can be treated as having been admitted in evidence within the meaning of Section 36 of the Stamp Act (II of 1899) so as to debar the appellant from questioning its addressability on the ground of want of stamp. The Subordinate Judge in his written judgment deciding the suit on the whole case held that the document was inadmissible for want of stamp. That view, however, has not prevailed with the lower appellate Court. That Court indeed agrees that the document was inadmissible for want of stamp but it holds that as the document was as a matter of fact let in and exhibited as a piece of evidence by the Subordinate Judge at the trial, its admissibility cannot be objected to at any subsequent stage of the case. In so holding that Court has practically given to the expression " admitted in evidence " in Section 36 of the Stamp Act a meaning which is erroneous in law. " Admitted in evidence " means the act of letting the document in as part of the evidence; but it must be letting in as a result of judicial determination of the question whether it can be admitted in evidence or not for want of stamp. In other words, the Court admitting it must have applied its mind consciously to the question whether the document is admissible or not. IT may, of course, happen in some cases that a document, which is not admissible for want of stamp, is allowed by the Court to go in, the question of stamp escaping its notice as well as the attention of the parties. In such cases the admission is a judicial determination of the question, because the Court let in there document on its view that there was nothing against its admission. In the present case when the document in dispute was tendered in evidence, its admissibility was objected to and accordingly an issue was raised in the Court of first -instance to try the question. The Subordinate Judge postponed its decision until the delivery of his judgment on the whole case and after evidence recorded on all the issues, including the issue as to the admissibility of this document. In the meantime the document was exhibited as part of the evidence. That was contrary to law, because the Subordinate Judge had not decided then the question of admissibility. Whether that was owing to inadvertence on the part of the Subordinate Judge, or whether it was an act of some clerk of the Court done in accordance with its practice, the exhibiting of the document under the circumstances could not bind the party who had objected to its admissibility and who objection awaited final determination by the Subordinate Judge. Therefore, when the Subordinate Judge came to the conclusion at the time of deciding the whole case upon all the issues that the document was not admissible in evidence, the document ought to have been excluded. IT was by mistake that it had crept in, and the Court was bound to correct the mistake upon the principle laid down in Mohanlall Sookul V/s. Bebee Doss (1861) 8 M.I.A. 195 that where a Court has done something, which the Court ought not to have been asked to do, either by accident or negligence, still the effect is just the same as if the Court has been induced to make an order, which if the facts were fully before it it would not, or might not, have been induced to make. The appellant was not bound to ask the Court to correct the mistake. The Court ought to have corrected it she molo, because the mistake was that of the Court and the appellant had nothing to do with it and he had done all he could to get the document excluded. But it is contended that, although this document be excluded from evidence, yet there is other evidence to support the finding of the lower appellate Court. Whether there is other evidence or not to support the claim of the plaintiff as against the defendant is a question which we cannot determine in second appeal. This Court has decided in Chenbasapa V/s. Lakshman Ramchandra (1893) I.L.R. 18 Bom. 369 that an unstamped hundi is " acted upon" where a decree is passed on it, whether proved or admitted, and that the Court cannot give effect to it in either case. That would also be the law applicable to a promissory note, provided that ruling applies to the provisions of the present Stamp Act. But however that may be, whether there is that evidence or not, it is not our function to say. We may also draw the attention of the lower Court to Krishnaji V/s. Rajmal (1899) I.L.R. 24 Bom. 360 where it was held that, where there is an independent admission of a loan, the holder of a hundi, bill or note, which is defective and inadmissible in evidence for want of a stamp, may still sue on the consideration the person to whom he gave it, though he cannot use the bill in support of his suit (see also Ramchandra Rao V/s. Venkataramana Ayyar (1899) I.L.R. 23 Mad. 527. We do not express any opinion one way or the other on the merits of the case. All that is determined by us is that Exhibit 36 must be excluded from the evidence. We ask the lower appellate Court to find on the fourth issue on the evidence as it stands after excluding Exhibit 36. Finding to be returned within one month.