M K LODHI Vs. ZIA-UL HAQ

JUDGEMENT

(1.) This is a reference by the Small Cause Court Judge of Saharanpur under Section 113 read with Order 46, Rule 1, Civil P.C., and the question that has been referred for decision is as follows: Whether the expression "admitted in evidence" in Section 36, Stamp Act, means that the Court should have admitted the document after having consciously applied its mind to the question of sufficiency of stamp or whether it includes a case in which the question of sufficiency of stamp has escaped the notice, of the Court and the attention of the parties.

(2.) The facts that led to the reference may shortly be stated as follows : In a suit for recovery of arrears of rent of a house or a a shop the plaintiff relied on a written acknowledgment made by the defendant in order to sail clear of the bar of limitation. This acknowledgment was unstamped. The case was heard first by Mr. Pran Nath Aga, Judge, Small Cause Court, who examined the plaintiff and during the course of the plaintiff's examination the following entry was made on the document containing the acknowledgment:

(3.) Till this stage of the suit no objection was raised by the defendant to the admissibility of the document on the ground that the document required a stamp and was unstamped. The case was then heard by the successor-in-office of Mr. Pran Nath Aga who also recorded some evidence. Finally the case was heard by Mr. Brij Mohan Lal Judge, Small Cause Court, who has made the present reference. For the first time before the last mentioned officer the defendant objected to the admissibility of the document on the ground that the same was unstamped. It was then contended on behalf of the plaintiff that in view of the provisions of Section 36, Stamp Act (2 of 1899), the objection raised by the defendant could not be entertained. It was however urged on behalf of the defendant that as Mr. Aga had not "judicially considered" the question raised by the defendant Section 36 had no application to the case and, in support of this contention, reliance was placed on certain judicial decisions which will be noticed hereafter. The learned Judge entertained doubt as to the correctness of those decisions and, as there was no reported case of this Court on the point, he made the present reference. Section 36, Stamp Act provides that 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.