P L D 1961 Dacca 596 (PLP)

(a) Stamp Act (II of 1899), S. 36‑Expression "admitted in evi dence"‑Meaning‑Document once admitted‑Cannot be challenged afterwards at any stage on ground that it has not been properly stamped. The expression "admitted in evidence" in section 36 of the Stamp Act, 1899 does not mean admitted in evidence as a result of judicial determination of the question whether the document could be admitted in evidence or not for want of stamp. There is no warrant for introducing this limitation qualifying the plain language of the section which makes it reasonably clear that the instrument having once been admitted in any proceeding, whether wrongly or rightly, without objection or after hearing objection, it is available in that proceeding, for all purposes as if it had been properly stamped from the outset. The proceeding will go through a valid termination and cannot afterwards be challenged for want of jurisdiction merely by reason of non compliance with the provisions of the Stamp Act, 1899. The ques tion in such cases is whether the document has been admitted and not whether it was admitted after a special objection relating to the sufficiency of stamp was taken and determined. (b) Stamp Act (II of 1899), S. 36 and Civil Procedure Code (V of 1908), O. XIII, r. 3‑Provisions of O. XIII, r. 3, C. P. C. Must yield to S. 36, Stamp Act (II of 1899). The provisions of rule 3, Order XIII of the Civil Procedure Code, 190N must yield to section 36 of the Stamp Act, 1899 and once a document is admitted in evidence no objection as regards insufficiency of stamp can be taken at any stage of the proceeding. AKBAR, J.‑This appeal under Clause 15 of the Letters Patent from the judgment and decree of our learned brother Hasan, J., in Second Appeal No. 676 of 1957 arises out of suit filed by the plaintiff‑appellant for recovery of a sum of Rs. 1,100 alleged to be due on a handnote dated the 23rd June 1954. The defendant filed written statement denying the execution of the said handnote.

2. His defence was that he had signed a blank‑sheet of paper as a security for payment of Rs. 1,100 due to one Meghu Miah from his son Mawla Miah and that the plaintiff subsequently forged the said handnote. He also denied the receipt of any consideration for the said handnote. Further, according to him, Mawla Miah's debt was satisfied by him partly in cash and partly by transfer of land.

3. The defendant, who was examined on commission sup ported the story as contained in his written statement. On the date fixed for hearing the Pleader for the defendant asked for an adjournment of the case and as the Court rejected his prayer he retired from the case.

4. The plaintiff's witness then proved the execution of the handnote and it was marked as Exhibit

1. The learned Munsif, therefore, decreed the suit in full.

5. The defendant then filed an appeal against the judgment and decree passed by the Munsif. It was contended in the Appel late Court on behalf of the defendant‑appellant that the handnote, Exhibit 1, which was chargeable with a stamp duty of 4 annas was stamped with a stamp duty of 2 annas only and hence was not admissible in evidence in view of the provisions of section 35 of the Stamp Act. On the other hand, the contention of the plaintiff‑respondent was that, in view of section 36 of the Stamp Act, the question of admissibility of the handnote, Exhibit 1; could not be gone into in the appeal.

6. The learned District Judge; being of the opinion that section 36 had, no application to the case, held that the handnote was not admissible in evidence. In that view of the matter, he allowed the appeal and dismissed the suit.

7. The plaintiff then filed a second appeal to the High Court.

8. Hasan, J., who heard the said appeal, relying on the decision of the Division Bench of this Court in the case of Benoy Bhusan Saha v. Md Abdul Sdmad alias Ladai Miah ((1954) 6 D L R 50), held that the words "admitted in evidence" occurring in section 36 of the Stamp Act ``means the act of letting the document in as part of the evidence as a result of judicial determination of the question whether it can be admitted in evidence or not."

9. The learned Judge then found (1) that the handnote was admitted into evidence formally under Order XIIl, rule 4 of the Civil Procedure Code and was marked as an exhibit, and (2) that "mere marking a document as an exhibit under Order XIII, rule 4 of the Code of Civil Procedure will not preclude to determine the question of admissibility of the document and as such the Lower Appellate Court was right in determining whether the document was admissible in evidence or not": vide Venkanna v. Parsuram Byas and others (I L R 53 Mad. 137). He, therefore, held that section 36 of the Stamp Act had no application to the case, and that the handnote being not sufficiently stamped, the learned District Judge was justified in rejecting the same from the evidence. In this view of the matter, he upheld the judgment of the First Appellate Court and dismissed the appeal. Hence this Letters Patent Appeal at the instance of the plaintiff.

10. Mr. Karim, the learned Advocate for the appellant, has contended that, in view of the provisions of section 36 of the Stamp Act, the Appellate Court was not entitled to enter into the question of the admissibility of the handnote. Section 36 of the Stamp Act is 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." This section 36 ‑has been considered by different High Courts in a string of cases. I shall first notice the decision of the Calcutta High Court. In the year 1919 Chitty and Panton, JJ., while dealing with the section in the case of Biswanath Bhattacharyya and others v. Govinda Chandra Das and others (A I R 1919 Cal. 35), observed "But as he (the Subordinate Judge) admitted the document in evidence, that admission, except as is provided for by sec tion 61, which does not affect the liability of the defendant, cannot be called in question in this suit."

11. In 1921 this section again came. up for consideration of the Court in Rang Lal Kalooram v. Kedar Nath Kesriwal (A I R 1921 Cal. 613) and Richardson, J., observed "Under that provision if any penalty is to be exacted, it can only be exacted under section.61. The revenue is then protected so far as it is protected by that section. In my opinion, once an instrument is admitted in evidence, in any proceeding, either under section 35 or under section 36, it is available in that proceeding, for all purposes as if it had A been properly stamped from the outset. The proceeding will go through to a valid termination and .cannot afterwards be challenged for want of jurisdiction merely by reason of non compliance with the Stamp Act."

12. In 1910 Rankin, C. J., in the case of Nirode Basini Mitra v. Sital Chandra Ghatak (51 C L J 569), observed " .section 36 of the Stamp Act makes it reason‑ IB ably clear that the instrument having once been admitted in evidence is not to be called in question at any stage of the same suit." The learned Chief Justice further says " . . . . . under section 536, it matters nothing whether it was wrongly admitted or rightly admitted or admitted without objection or after hearing or without hearing such objection."

13. In 1936 Mitter and Patterson, JJ., in the case of Bhupati Nath Chakravarty v. Basanta Kumari Devi (A I R 1936 Cal. 556), observed "It seems to us, therefore, on a plain reading of the language of the statute as contained in section 36 as also on the autho rities to which we have just referred, that the contention of the appellant that this document can now be excluded from evidence must fail and we will proceed to determine this case on the footing that this document in question is properly before the Court."

14. A similar view was also taken in Nallajerla Satyavati and others v. Vijapu Pallaya (A I R 1937 Mad. 431), Jagdip Singh and others v. Firangi Singh and others (A I R 1928 Pat. 155) and Venkatesvara lyer v. Ramanatha Dheekshitar (A 1 R 1929 Mad. 622).

15. There is however a line of cases where it has been held that "admitted in evidence" means " the act of letting the docu ment in as part of the evidence ; and that it must be letting in as a result of the judicial determination of the question whether it can be admitted in evidence or not for want of stamp:" See Chunilal Tulsiram v. Mula Bai (12 Bom. L R 466), Vavarthar Abdul Wahab Sahe6 v. Pallapoatha Kanaka Anjaneyau and others (A I R 1935 Mad. 888) and Jagan Nath v. Mt. Chauli (A I R 1933 Lab. 271).

16. In our opinion, * the observations of tile Court in the above cases must be understood with reference to the facts of the particular cases with which the learned Judges were dealing. We may here observe that in Chunilal Tulsirdm v. Mula Bai, the learned Judge himself explains what he means "by judicial deter mination of the question." He says "In the other words, the Court admitting it must have applied its mind consciously to the question whether the document is admissible or not. It may, of course, happen in some cases that the document, which is not admissible, for want of stamp, is allowed by the Court to go in, the question of stamp escaping its notice as well as the attention of the parties. In such cases the admission is a judicial determination of the question, because the Court let in the document on its view that there was nothing against its admission." Hence really there was no difference between the view taken in this case and the Calcutta decision cited above. If Bombay and Lahore decisions are regarded to mean that "admitted in evidence" means admitted in evidence as a result of judicial determination of the question whether the document could be admitted in evi dence or not for want of stamp, we are unable to agree with that view. We see no warrant for introducing this limitation. qualifying the plain language of section 36 of the Stamp Act. Now we shall notice the decision of our High Court in the case of Benoy Bhusan Saha v. Md. Abdul Samad alias Ladai Mia on which Hasan. J., has relied in coming to the conclusion that the Appellate Court can enter into the question whether a docu ment was properly admitted or not for want of stamp.

17. In the above case, the fact was as follows : The plaintiff filed a suit for recovery of the price of baskets supplied to the defendant. In support of the claim the plaintiff also relied upon an insufficiently stamped promissory note. He however did not base his claim on the promissory note. The trial Court impounded the promissory, note anti on realisation of the deficit stamp duty and penalty admitted it in evidence. Hence the High Court observed : . "Here in the present case, the claim having been based on the original consideration and not on Exhibit I the suit cannot, in our opinion, fail on the ground that the document is insufficiently stamped specially when oral evidence led established beyond doubt that there was original consideration." The Court then observed : "Provision of section 36 is mandatory; and once a document is admitted in evidence rightly or wrongly it is not permissible to the Court whether it is a Court of appeal, revision or trial Court, to reject it from evidence on the ground it has not ' been duly stamped or that deficiency has not been made up and penalty not paid. The expression "admitted in evidence" in the section means the act of letting the document in as part of the evidence as the result of judicial determination of the question. whether it can be admitted in evidence or not. The instrument in question having been impounded and admitted in evidence after realisation of the penalty, this Court in appeal is not competent to reject it except for the reason laid down in section 61 of the Stamp Act." This observation, to a great extent, is based on the Calcutta and Madras decisions which we have referred to in the first para. of the judgment. It seems Hasan, J. has laid great emphasis on the sentence that "The expression `admitted in evidence' in the section means the act of letting the document in as part of the evidence as a result of judicial determination of the question whether it can be admitted in evidence or not." This may also mean that if a document had been admitted without objection, there was a judicial determination of the question and that document must have been deemed to have been admitted in evidence. In any event in view of the fact that the claim in the above suit was based on the original consideration and not on the handnote, the above observations may be regarded as an obiter.

18. We, therefore, see no reason to think that the view taken in the above case is different from the views taken by Rankin C. J. in, 51 C. L. J. 569 and in other decisions referred to above, We, in full agreement with the following observations of Ranken; C. J., in 51 C. L. J. 569, namely : ". . . . . under section 36, it matters nothing whether it was wrongly admitted or rightly admitted or admitted without objection or after hearing or without hearing such objection," hold that the handnote was admitted in evidence in this case within the meaning of section 36 of the Stamp Act and the appel late Court was not entitled to reject it as insufficiently stamped.

19. Now we may notice the decision in Venkin v. Parasuram Byas and others, in which Hasan, J., has referred to in his judgment and on which the learned Advocate for the respondents has also relied.

20. In that case it was held that "a mere mechanical act of an endorsement is not sufficient to constitute admission in evidence". It will suffice to point out that the said decision in I L R 53 Mad. 137 was distinguished in the case of Nallajerla Satya vati and others v. Vijjapu Pallaya. In the said Madras case the question for consideration was : whether Order XIII, rule 3, C. P. C. was subject to section 36 of the Stamp Act, and the Court observed as follows at page 432 "Once a document is admitted in evidence no objection as regards insufficiency of stamp can be taken and the provision in rule 3, Order XIII, must yield to this. Again, the case in 53 Mad. 137 (Venkanna v. Pursuranm) was relied on. According to the said decision "a mere mechanical act of endorsement is not sufficient to constitute admission in evidence". In fact, Phillips, J. says that: "Once it has been admitted in evidence, even in a subsequent stage of the same suit, it is clear that, under that section objection could not be taken when there had been such admission. What has to be determined in each case is whether there has been an `admission' or not. Therefore there is nothing in this decision which runs counter to the view I have already stated. The question is whether the document has been admitted in evidence and not whether it was admitted after a special objection relating to the sufficiency of stamp was taken and determined. In this case objection was taken with regard to its admissibility. I shall assume only with reference to registration and not to want of stamp. But the learned Judge overruled the objection and admitted the document in evidence. That is quite enough admission within the meaning of section 36, Stamp Act. I am therefore of opinion that the learned Judge had no jurisdiction to go behind his order admitting the document. Section 36 will also apply when secondary evidence of an instrument not duly stamped has been wrongly admitted." Hence we are of opinion that this decision in I L R 53 Mad. 137 does not help the respondents in this case. For the reasons stated above we are of opinion that Hasan, J. was not justified is excluding cite handnote from the evidence.

22. In the result, we allow the appeal, set aside the judgment and decree of the appellate Courts and restore that of the trial Court. The plaintiff will be entitled to the cost of this appeal. ASIR, J.‑I agree. K. B. A. Appeal accepted.