- (1.) THIS is an appeal under Section 18 (2) of the Rajas-than High Court Ordinance (No. 15) of 1949 from the judgment of a Single Judge of this Court.
(2.) THE appellant was defendant in the suit. THE plaintiffs Daudas and Mohanlal sued for recovery of Rs. 411/- consisting of Rs. 300/- as principal and the rest as interest. THE suit was based on document Ex. P-l, dated Baisakh. Sudi 11 Section 1997. THE defendant contended that the document in question was inadmissible in evidence under Article 1, Schedule I of the Indian Stamp Act, and under the Marwar Stamp Act of 1914 in force on the date of the execution of the document, as it required a stamp of one anna, and as it did not bear the stamp, it could not be admitted under the law in force at the time when it was put in force in Court. This contention was accepted by the trial Court, and the suit was dismissed. THEre was an appeal to the District Judge, which was also dismissed. THEn there was a second appeal to this Court, which has been allowed by the learned Single Judge. He has held that Article 1, Schedule I of the Indian Stamp Act does not apply, and the document did not require any stamp at all. He admitted the document, and sent the suit back for retrial on the merits. He, however, granted permission to the defendant to appeal under Section 18 (2) of the Rajasthan High Court Ordinance, and hence this appeal before us. A preliminary objection has been raised on behalf of the plaintiffs respondents that as the instrument has been admitted in evidence by the learned Single Judge, it cannot be called in question at any stage of the same suit or proceeding, and therefore the appeal should be dismissed, for it in effect calls in question the admissibility of the instrument. Section 36 of the Indian Stamp Act reads 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. " We are of opinion that the preliminary objection, must prevail. The language of Section 36 clearly bars calling in question the admissibility of an instrument on the ground of its being insufficiently stamped at any stage in the same suit or proceeding, once the instrument has been admitted in evidence. The reason behind this section was given by Rankin C. J. in -- 'nirode Basini v. Sital Chandra', AIR 1930 Cal 577 (1) (A) in these words: " It appears to me that Section 36, Stamp Act makes it reasonably clear that the instrument having once been admitted in evidence is not to be called in question at any stage of the same suit. . . . . . . . Under Section 36 it matters nothing whether it was wrongly admitted or rightly admitted or admitted without objection or after hearing of without hearing such objection. These stamp matters are really no concern of the parties. " High Courts are generally agreed that once an instrument is admitted in evidence, that ends the matter, and its admissibility cannot be further questioned at any stage of the same suit or proceeding on the ground that it is not duly stamped. We may cite a few cases in support of this view. In Ramasami Chetti v. Ramasami Chetti', 5 Mad 220 (B), it was held that the Hundi having been admitted in evidence, even though contrary to law, by the District Judge, no objection could be taken to the decree in second appeal upon that account, and reliance was placed on Section 34 (3) of the Stamp Act of 1879, which corresponds to Section 36 of the present Stamp Act. In -- 'brij Raj Saran v. Joti Parshad', AIR 1923 Lah 657 (C), the Lahore High Court held that the order of the Single Judge, which amounted to an admission of the instrument in evidence within the meaning of Section 36 of the Stamp Act, could not be questioned in Letters Patent Appeal, In that case, the trial Court had held an instrument to be a promissory note, and therefore not properly stamped. On appeal a Single Judge of the High Court held that it was not a promissory note, and was admissible in evidence on payment of the necessary stamp duty and penalty. There was a Letters Patent Appeal, which was held to be a stage in the suit for purposes of Section 36, and it was held that the order of the Single Judge could not be questioned, once the document had been admitted in evidence. In -- 'k. M. Lodhi v. Zia-wl Haq', AIR 1939 All 588 (D), it was held that it was not necessary that the instrument should have been admitted after conscious application of the mind of the court to the question of admissibility, and that if no objection to the admissibility on the ground of insufficiency of stamp was raised before the instrument was admitted in evidence, such objection could not be subsequently raised. Lastly, we may refer to a case of our Court. In -- 'jahangir Khan v. Zahur', AIR 1352 Raj 129 (E), the preliminary objection that the document having been admitted in evidence its admissibility could not be called in question was allowed. We may now refer to certain cases relied upon by the appellant to show that Section 36 may not have the far-reaching effect which has been given to it in the cases mentioned above. The first case is --- 'chunilal Tulsiram v. Mulabai', 6 Ind Cas 903 (F), where the Bombay High Court held that the admission of a document by mistake could not debar the raising of the question at a subsequent stage, and Section 36 would have no application under these circumtances. That case is, in our opinion, an exception to the general rule laid down in the cases mentioned above. That case deals with a peculiar situation which was this. The instrument had been tendered in evidence and an objection had been taken to its admissibility on the ground of insufficiency of stamp. The Judge postponed the decision of that question until the delivery of judgment. In the meantime, the instrument was marked as an exhibit by mistake. In the judgment the Judge decided that the document was inadmissible for want of sufficient stamp, and the question arose whether the Judge could come to that decision after the document had been exhibited. The Bombay High Court held that it was exhibited by mistake, and the Court could always correct its mistake, particularly when it had reserved the consideration of the question whether the document was admissible or not for the stage of judgment. The next case is -- 'sitaram v. Thakurdas', AIR 1919 Nag 141 (G ). In that case the Nagpur Judicial Commissioner's Court held that the words "admitted in evidence" under Section 36 means admission after conscious application of the mind to the question whether the document is admissible or not. What had happened there was that at the time of hearing evidence it was discovered, when the original books of account were produced, that the stamps had not been cancelled. The copies had, however, been admitted in evidence, and the defect was only discovered when the originals were produced. The facts of that case also were, in our opinion, peculiar. If the originals had been admitted in evidence without objection, and the defect had been discovered at a later stage, Section 36 would have applied; but as it seems that only copies were admitted and the defect was discovered as soon as the originals were produced, the admission of the copies could not have the same effect as the admission of the originals. This case also, therefore, does not, in any way, detract from the force of the authorities mentioned above.
(3.) THE appellant also relied on certain cases dealing with Section 35. It is in our opinion unnecessary to refer to those cases because the considerations there are different. THE only case where both Sections 35 and 36 are dealt with is -- 'rup Chand v. Beli Ram', AIR 1933 Lah 240 (1) (H ). In that case it was remarked that even though an instrument not duly stamped cannot be admitted in evidence for any purpose whatsoever under Section 35 when once it is admitted by a Court, though wrongly, the appellate Court is debarred, under Section 36 of the Act, from interfering in the matter. The next case to which reference may be made is -- 'sri Yerri Swami v. Chinna Vannurappa', AIR 1949 Mad 300 (I ). In that case, the defendant had raised a specific plea in his written statement that the promissory notes were inadmissible in evidence being insufficiently stamped, and a specific issue on the question was framed. That issue was not decided, but the suit was thrown out on another issue. The documents were, however, marked exhibits. On appeal, the suit was remanded, and it was then urged that as the instruments had been admitted in evidence, the Munsif could not go into the question in view of Section 36 of the Stamp Act. It was however held that the fact that the instruments were tentatively exhibited did not preclude the Munsif from going into the issue. This case also is, in our opinion, of the same type as the Bombay High Court case reported in -- '6 Ind Cas 903 (P)' and depends upon its own peculiar facts, and does not, in any way, throw doubt on the correctness of the view taken in the cases mentioned by us earlier. It is then urged that there is difference between the language of Sections 35 and 36, and that even though the instrument may be admitted in evidence under Section 36, it cannot be acted upon, and therefore no decree can be passed on its basis. The relevant provision of Section 35 is as follows: " No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by, any public officer, unless such instrument is duly stamped. " We are not concerned with the provisos to Section 35, and they are, therefore, not quoted. The relevant words used in Section 36 are: " Where an instrument has been admitted in evidence. . . . ,. . . " The words "acted upon, registered, or authenticated" have not been used in Section 36. Their absence however is immaterial for the words in Section 35 themselves show that an instrument can be admitted in evidence for any purpose and this would include the passing of a decree on its basis. It is not necessary to press into service the words "acted upon" before a decree can be passed on the basis of an instrument. It seems obvious to us that when a court admits an instrument in evidence, it does so for the purpose of using it in the suit or proceeding. There would be no sense in admitting a document in evidence and then refusing to pass a decree upon it. Therefore, even though the words "acted upon" have not been used in Section 36, it seems to us that the admission of the instrument under Section 36 is for all purposes, and once the document has been admitted, it can be used for any purpose the court thinks proper, and such use cannot be called in question at any stage of the same suit or proceeding. The absence of the words acted upon, therefore, from Section 36 cannot have the effect sought to be put on it by learned counsel for the appellant. All the High Courts have taken the same view on this question, and we may refer to a number of cases in this connection. In -- 'rung Lal Kalooram v. Kedar Nath Kesriwal', AIR, 1921 Cal 613 (J), Richardson J. dealing with this question observed as follows: " Section 36 would be entirely nullified if on the conclusion of the proceeding in which the instrument is admitted, the proceeding could be set aside by a separate proceeding initiated by one of the parties on the sole ground that the person having authority to receive evidence had admitted or acted upon an unstamped or insufficiently stamped document. " In -- 'alagappa Chetti v. Narayanan Chettiar', AIR 1932 Mad 765 (K), Sundaram Chetty J. , dealing with a similar document, observed as follows at page 767: " On a comparison of the wording of Section 42 (2) with that of Section 36 it is urged by the learned advocate for the appellant that a distinction between the admission of a document in evidence and the acting upon such a document was recognized by the legislature. I agree that such a distinction does exist but the question, now is whether the wording of Section 36 can be reasonably construed in the manner set forth, above. I am clearly of the opinion that once a document has been admitted in evidence by the lower court under Section 36, such admission cannot be questioned at any later stage of the same suit or proceeding on the ground that the instrument has not been duly stamped and the natural consequences of that admission which has become final must also follow. The appellate Court cannot say that though it has been marked as an exhibit in the case, it would not look into it and would not make use of it in the appreciation of the evidence or would not allow a decree to be passed on such a document. " In -- 'venkata Reddi v. Hussain Setti', AIR 1934 Mad 383 (L), the question whether the document may be acted upon for collateral or subsidiary purposes, but not for purposes of passing a decree upon it was considered and Madhavan Nair J. observed as follows at page 384: " The learned Advocate-General sought to draw a distinction, namely, that Section 36 does not apply to cases where the document in question forms the foundation for the suit but only applies to instruments admitted in the course of evidence in support of subsidiary points arising in the case. There is no authority in support of this distinction. " ;