SOLAMALAL MUDALIAR Vs. VADAMALAL MUTHIRAN

JUDGEMENT

(1.) The question raised in this revision petition is whether the Lower Court was right in rejecting as inadmissible the promissory note on which the suit was instituted. The note was executed outside British India but was endorsed over to the plaintiff in British India. It is quite clear under Section 3, Clause (b) of the Stamp Act that the document required to be duly stamped. The District Munsiff held it to be not duly stamped because the stamp was not cancelled in such a manner that it could not be used again. The manner in which the stamp was cancelled in this case is stated by the Munsiff thus: "Some blue pencil Iines are drawn over to the stamp." The Munsiff considered this not to be an eftctive method of cancellation. I have looked at the stamp myself and I am unable to say that the District Munsiff was wrong in holding that the stamp was not properly cancelled. It is not possible to lay down any general rule as to what mode of cancellation could be effective. The legislature has abstained from doing so and perhaps it is as well that Judges should do the same. I have, however, no difficulty in holding in the present case that the stamp has not been effectively cancelled.

(2.) The next question is whether under the provisions of Section 36 of the Stamp Act the document should be regarded as having been admitted in evidence in consequence of which its admissibility could not be called in question again. The suit was at first tried ex-parte but the ex-parte judgment was subsequently set aside. It was at the ex-parte trial that the note was admitted in evidence. The question is whether the language of Section 36 "where an instrument has been admitted in evidence" is applicable to such a case. When the promissory note was put in at the second trial the document did not remain as evidence. The whole ex- parte proceedings had been set aside and the trial of the suit had to commence de-novo. I am of opinion that Section 36 applies only to a case where what is in evidence is sought to be expunged by a party who objects that the evidence was wrongly admitted. But here the promissory note had to be tendered in evidence again at the second trial as the previous proceedings proved abortive in law when they were set aside. Suppose a document not duly stamped was admitted in evidence against one person who was then the sole defendant in the suit, but other persons are subsequently made parties and the trial of the suit is de novo against them, could it be held that those who were not parties when the document was originally received in evidence could not object to its admissibility? I think not. As I have already stated Section 36 really lays down a. rule preventing only the exclusion of what already is evidence in the proceedings. But if certain proceedings terminated and other proceedings recommence where the document would not be regarded as being in evidence already, I think the section has no application. Technically, no doubt, the suit is regarded as the same though the ex-parte decree might be set aside. But in substance the proceedings are different when they recommence at the setting aside of ex-parte decree. I am of opinion therefore that this argument must also fail.

(3.) In the result I dismiss the petition with costs.