VAVARTHAR ABDUL WAHAB SAHEB Vs. PALLAPOTHA KANAKA ANJANEYALU

JUDGEMENT

(1.) This is an appeal from the order of the District Judge of Kistna dated 29 August 1932, in appeal reversing the decree of the Subordinate Judge of Bezwada dated 27 April 1931, in O.S. No. 13 of 1929 and remanding the suit for fresh disposal. The suit was one to recover Rs. 4,130 due under a hundi. The only point decided by the trial Court was that covered by the additional issue framed in the case on; 29 October 1930, viz., whether the suit hundi is unstamped and hence the suit is not maintainable. The trial Court found this issue in the affirmative and accordingly dismissed the suit. On appeal the District Judge was of opinion that it was not open to the Subordinate Judge to consider the question of the admissibility of the hundi in view of its previous admission in evidence by the Commissioner appointed by the trial Court. The only point for determination in this appeal therefore is whether the hundi in question was admitted in evidence within the meaning of Section 36, Stamp Act. That section runs as follows: Where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.

(2.) The exception referred to does not apply to the present case, and the only point therefore is whether the hundi was admitted in evidence in the present suit within the meaning of Section 36, Stamp Act.

(3.) There is no dispute really about the actual facts. The first objection to the inadmissible nature of the hundi in evidence on account of its being not stamped was raised in a petition by defendant 1 to the trial Court on 29 August 1930. The same objection was repeated in a subsequent petition dated 16 October 1930, and a separate issue on the question whether the suit was maintainable in view of the fact that the suit hundi was unstamped was sought to be drawn up. This latter petition came up for orders on 29 October and the order thereon was that the additional issue was ordered to be framed, the plaintiff's advocate raising no objection. In the interval a Commissioner had been appointed to examine certain witnesses at Madras in connexion with the alleged dishonour of the hundi. The Commissioner during his examination of one of the witnesses examined by him on 26 October 1930 exhibited the hundi. The hundi had been sent to him by the Court along with the commission warrant. He says that he gave the document a mark but did not initial or date it. He adds that the question of the document being inadmissible as being an unstamped bill of exchange was not considered by him; nor was it raised by the defendants though some objections had been raised to the form of questions in the course of the evidence. These facts which are elicited from the Commissioner's own evidence are not disputed and the question really is whether from these facts it can be inferred in law that the hundi was admitted in evidence by the Commissioner at all and if so whether such admission is admissible in evidence within the meaning of Section 36, Stamp Act.