NOOR AHMAD Vs. IRSHAD GHAUS

JUDGEMENT

(1.) This is a plaintiff's application for the revision of an order of the judge of the Small Cause Court of Piliibhit dismissing the suit on the ground that the promissory note on which it was originally based was not admissible in evidence because it had not been properly stamped. The trial Court admitted the promissory note which bore a one anna stamp though under the law it should have borne a two anna stamp. It was initialled by the trial Court and was produced in evidence. It was not until the defendant pointed out in the course of evidence that a second one-anna stamp had been added subsequently to the execution of the promissory note that the Court's attention was drawn to this point, and the Court thereupon came to the conclusion that the second stamp had been affixed later, and that the promissory no should not have been admitted in evidence. With reference to Section 36, Stamp Act, 1899, this was too late a stage at which to take objection to the admissibility of the document. In the case of Venkoteswara Iyer V/s. Ramarath Dheekshitar , it was held that: Where the plaintiff sued on a promissory note and the defendant raised the plea that it was not admissible in evidence on the ground that it was not validly stamped but no issue was framed on its admissibility and the Court of first instance marked it as an exhibit unconditionally, the appellate Court has no jurisdiction to agitate the question of its admissibility.

(2.) It is true that the case quoted above was one in which the question of the admissibility of the document was not apparently pressed until the appeal. A document however is admitted in evidence under Order 13, Civil P.C., Rule 4, and when once it has been admitted in evidence under Section 36, Stamp Act, the admission cannot be called in question at: any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. It appears to me therefore to be quite clear that the trial Court had no more authority to review its own order admining the document in evidence than an appellate Court would have to reverse that order on appeal. This view was taken in the case of Dasi Chamar V/s. Ram Autar Singh, A.I.R. 1923 Pat. 404. In another case Mirode Basini Mitra V/s. Sital Chandra Ghatak , in which the question was raised in appeal, the Bench remarked: The Judge has entirely failed to see that under Section 36 it matters nothing whether it was wrongly admitted or rightly admitted or admitted without objection or after hearing or with out hearing such objection. Those stamp matters are really no concern of the parties and if the objection was taken at the time when the record was made up by the trial Court, there it might be rejected; if not, the matter stopped there.

(3.) In the present case as the Court had no power to ignore the document which had been admitted it was bound on the evidence to decree the plaintiff's suit. In fact the first part of the judgment which proceeds on assumption that the document is admissible shows that the Court would have decreed it, if it had not as an afterthought decided that the document was after all not admissible in evidence. The result is that I allow the application with costs, set aside the decree and order of the trial Court and direct that the plaintiffs suit be decreed with costs.