Decided on October 24,1952

MOONLAL Appellant
SAMPATLAL Respondents

Cited Judgements :-



Wanchoo, C. J. - (1.)THIS is a revision by Moonlal defendant, and has arisen in the following circumstances :
(2.)SAMPATLAL filed a suit on the basis of a document which he called an agreement. Moonlal objected that the document in question was a promissory note, and as it was unstamped it could not be admitted in evidence. This dispute was considered by the Munsif and he came to the conclusion, on the 10th September 1951, that the document in question was not a pro-note, and was admissible in evidence on payment of duty and penalty. The revision is against this order.
A preliminary objection has been taken on behalf of the opposite party that the document having been admitted in evidence, it is not open to be called in question in revision on the ground that the instrument was not duly stamped, and, reliance is placed on sec. 36 of the Stamp Act. Learned counsel for the opposite party tells me that duty and penalty were paid on the 19th September, 1951, and this has not been challenged by learned counsel for the applicant. Reliance is also placed on a decision of this Court in Jahangir Khan vs. Zahur (1) (1952 R. L. W. , 33. ). That case is on all fours with the present case. There also the duty and penalty had been paid before the revision came up for hearing, and the document had thus been admitted in evidence.

Learned counsel for the applicant submits that this means that the decision of the first court will always be final in such matters, and the High Court will have no opportunity of revising that decision. I may, however, point out that there is a method by which it will be possible for the High Court to revise such orders. That method is that as soon as an order, like the one in revision, is passed, the party, against which it is passed, should immediately make an application in writing to the court that it intends, moving the High Court in revision, and ask for a reasonable time, say one month or six weeks, to be granted to it to do so. It should also pray to the court that in the meantime duty and penalty should not be realised. If a revision is filed within the time allowed, the party should pray to the High Court for an order for stay of proceedings in the court below. Thus by the time the revision comes up for decision before this Court, the document would not be admitted in evidence, because duty and penalty would not have been paid upon it. I have no doubt that if such an application is made, the court concerned will always give reasonably time to the party to apply to the High Court.

Lastly, the contention of learned counsel for the applicant is that even if the document has been admitted in evidence, it should not be acted upon, and he wants to draw some distinction between sec. 35 of the Stamp Act, and sec. 36. It is not necessary for me to say at this stage whether such a distinction can be drawn. It is enough in the present case to point out that the Munsif has only admitted the document in evidence on payment of duty and penalty, and the revision is against the order of admission. That, however, is clearly barred in view of sec. 36 of the Stamp Act, and the authority of this Court cited above.

The preliminary objection is therefore allowed, and the revision is dismissed. As I have not gone into the merits of the case, I order parties to bear their own costs of this revision. .

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