Arumugha Pillai vs Vadivel Pillai on 29 September, 1993

Madras High Court

Arumugha Pillai vs Vadivel Pillai on 29 September, 1993
Equivalent citations: (1994) 1 MLJ 474
Author: P Singh
ORDER Pratap Singh, J.
1. This civil revision petition is directed against the judgment in O.S. No. 95 of 19S7 on the file of the
District Munsif, Attur.
2. Short facts are: The revision petitioner has filed the suit against the respondent on the foot of a
pronote. That was resisted by the respondent. After trial, the learned District Munsif had held that
the suit pronote was insufficiently stamped and hence not admissible in evidence and when that was
taken out of account, the suit claim cannot be sustained and dismissed the suit. Aggrieved by the
said judgment, the plaintiff has come forward with this revision petition.
3. Mr. S.P. Subramanian, the learned Counsel appearing for the revision petitioner would submit
that the suit pronote was admitted in evidence by the learned District Munsif and while so he cannot
at the later stage of the Suit, say that the document was insufficiently stamped and hence it was
inadmissible in evidence. He would further submit that by virtue of Section 36 of the Indian Stamp
Act, 1899, once a document was admitted in evidence, such a document, shall not be called in
question at any stage of the same suit. He would further submit that the trial Court had admitted Ex.
A-1 in evidence and so it ought not have eschewed from evidence at a later stage of the suit on the
ground that no judicial order was passed with regard to the admissibility of the document, at the
time when it was exhibited. I have heard Miss. S.S. Jayanthi, for Mr. R. Muthukrishnan the learned
Counsel appearing for the respondent, on the above aspects.
4. I have carefully considered the submissions made by rival counsels. The suit is on the foot of a
pronote for Rs. 2,000. It is marked as Ex. A-1. Only 20paise revenue stamp was affixed, over which
the alleged signature of defendant finds a place. It is not in dispute that it was insufficiently
stamped. In the backside of Ex. A-1, the number of thesuit, the date on which it was admitted and on
whose behalf it was admitted that through whom it was admitted and the mark given for the
document are all noted and the District Munsif had initialled. As per Order 13, Rule 4, C.P.C. the
endorsements on the documents admitted in evidence to be made. As per the said Sub-rule (1) the
number and title of the suit, the name of the person producing the document, the date on which it
was produced and a statement of its having or initialled by the Judge are all to be endorsed and the
endorsement shall be signed or initialled by the Judge, There was no plea in the written statement
that the suit pronote was insufficiently stamped and hence not admissible in evidence. Neither any
objection was taken for the marking of thedocument, at the time when it was produced and
exhibited. Since it was insufficiently stamped, as per Section 35 of the Indian Stamp Act, it shall not
be admitted in evidence for any purpose. But it was admitted in evidence, Mr. S.P. Subramanian,
would submit that when once it was admitted in evidence in view of Section 36 of the Indian Stamp
Act, it cannot be questioned at any stage in the same suit. Section 36 reads as follows:

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Arumugha Pillai vs Vadivel Pillai on 29 September, 1993

36. Admission of instrument where not to be questioned: Where an instrument has been admitted
in evidence, such admission shall not except as provided in Section 61 called in question at any stage
of the same suit or proceeding on the ground that the instrument has not been duly stamped.
Section 61 refers to revision of certain decisions of courts regarding the sufficiency of stamps and we
are not concerned about it, in this case. The court below has stated in its judgment that at the time
when P.Ws. 1, 2 and 3 were examined on 13.8.1987, neither the learned Counsel appearing for the
plaintiff nor the learned Counsel appearing for the defendant or the court noted that only 20 paise
stamp was affixed in Ex. A-1. The court below has also pointed out that only after Ex. A-1 was
marked, during cross-examination, the mistake was found out. The court below had stated that only
due to inadvertence, Ex. A-1 was admitted and exhibited as Ex. A-1 and it was an accepted fact that it
was not judicially considered whether the document was admissible in evidence or not. The court
below has also stated that the learned Counsels appearing for both sides had admitted it. The court
below proceeds further and has stated that since there was no exercise of judicial mind regarding the
question whether Ex. A-1 was admissible in evidence or not, at the time when it was exhibited, he is
now holding that it is barred under Section 35 of the Indian Stamp Act. Thus, the trial Court has
clearly, categorically and in unambiguous terms has stated that neither the court nor the counsel
appearing for the rival sides noted this fact that Ex. A-1 was insufficiently stamped at the time when
it was exhibited and no judicial decision was given regarding admissibility of the same. These facts
stated by the court below are very material and relevant while considering whether Section 36 would
apply to this case or not. The learned District Munsif had relief upon the ruling Ram Rattan v.
Bairang Lal and had extracted the relevat portion. It reads as follows:
When the document was tendered in evidence by the plaintiff while in witness box, objection having
been raised by the defendants that the document was inadmissible in evidence as it was not duly
stamped and for want of registration, it was obligatory upon the learned trial Judge to apply his
mind to the objection raised and to decide the objection in accordance with law. Tendency
sometimes is to postpone the decision to avoid interruption in the process of recording evidence
and, therefore a very convenient device is restored of marking the document in evidence subject to
objection. This, however, would not mean that the objection as to admissibility on the ground that
the instrument is not duly stamped is judicially decided. It is merely postponed. In such a situation
at a later stage before the suit is finally disposed of it would nonetheless be obligatory upon the court
to decide the objection. If after applying mind to the rival contentions the trial court admits a
document in evidence Section 36 of the Stamp Act would come into play and such admission cannot
be called in question at any stage of the same suit or proceeding on the ground that the instrument
has not been duly stamped. The court and of necessity it would be trial court before which the
objection is taken about admissibility of document on the ground that it is not duly stamped has to
judicially determine the matter as soon as the document is tendered in evidence and before it is
marked as an exhibit in the case and where, a document has been inadvertently admitted without
the court applying its mind as to the question at any stage of the same suit or proceeding on the
ground that the instrument has not been duly stamped. The court, and of necessity it would be trial
court before which the objection is taken about admissibility of document on the ground that it is
not duly stamped has to judicially determine the matter as soon as the document is tendered in
evidence and before it is marked as an exhibit in the case and where a document has been
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Arumugha Pillai vs Vadivel Pillai on 29 September, 1993

inadvertently admitted without the court applying its mind as to the question of admissibility the
instrument could not be said to have been admitted in evidence with a view to attracting Section 36.
5. From the facts stated by the trial court in its judgment, as to how Ex. A-1 came to be exhibited, it
is apparent that Ex. A-1 had been inadvertently admitted without the court applying its mind as to
the question of admissibility of the instrument and while so it cannot be said to have been admitted
in evidence with a view to attract Section 36 of Indian Stamp Act. The aforesaid ruling of the Apex
Court applies squarely to the facts of this rare case.
6. Mr. S.P. Subramanian, relied upon Basavaiah Naidu v. Venkateswarulu A.I.R. 1957 A.P. 1022 :
1956 An. W.R. 490. In that case the facts are: The suit was brought on an insufficiently stamped
promissory note. The promissory note was produced along with the plaint and filed into court.
Objection was taken in the written statement to the validity of the pronote. Then issue was framed in
these terms "whether the suit pronote is not true, valid and binding on the defendant?". On the dale
of beginning of the trial on 4.9.1951, the defendant's pleader put in a memo, stating that he did not
question the genuineness of the promissory note but questioned its validity. The plaintiff was
examined as P.W. 1 and in the course of his evidence, the promissory note was put to him and he
proved it. It was thereupon marked as Ex. A-1 in the case. The endorsements required under Order
13, Rule 4, C.P.C. were made on the pronote and the initials of the District Munsif also finds a place.
Later it was held that the pronote was not admissible in evidence and the trial court and the lower
appellate court had dismissed the suit. Aggrieved by the same, the plaintiff went up on appeal to the
High Court. The High Court had held that Section 36 would apply even if the document had been
wrongly admitted or admitted without objection. In this case, objection was taken by the defendant
even at the outset that the pronote was insufficiently stamped. Despite that when the plaintiff was
examined, it was allowed to be proved without any objection and it was admitted in evidence and
exhibited. On those facts, it was so held. In the case before me, as I have indicated above, the fact
that Ex. A-1 was insufficiently stamped went unnoticed by the learned Counsels appearing for both
sides and as well as by the court and it was inadvertently marked. In the circumstances, the ratio of
the ruling of the Apex Court alone would apply to this case.
7. Mr. S.P. Subramanian, would rely upon Worrier v. Kochunarayana . In this case, a Division Bench
of the Kerala High Court had held that once a court, rightly or wrongly decides to admit a document
in evidence, so far as the parties are concerned, the matter is closed and the admission cannot be
called in question at any stage of the suit or the proceeding on the ground that the instrument had
not been duly stamped. In para 5, the learned Judges had laid as follows:
The words of the section are clear, and there can be no doubt that once a document has been
admitted in evidence-as in this case its admissibility cannot be questioned on the ground that it has
not been duly stamped.
Ma. Pwa. May v. Chettior Firm A.I.R. 1929 P.C. 279. The expression "admitted in evidence" means
"let in as part of the evidence". To hold as the respondent wants us to do-that a document should not
be considered as having been admitted in evidence unless the court has applied its mind to the
question of admissibility from the point of view of the stamp law will involve an addition to the
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Arumugha Pillai vs Vadivel Pillai on 29 September, 1993

section of the words "after judicially considering the question of sufficiency of stamp" after the
words "admitted in evidence, M.K. Lodhi v. Zia Ul Haq A.I.R. 1939 All. 588, with respect, 1 do not
agree with this view of the Kerala High Court, in view of the ruling of the Apex Court referred to
supra.
8. Mr. S.P. Subramanian, would further rely upon Simmadri v. Varalakshmi A.I.R. 1962 A.P. 398 :
(1962) 1 An. W.R. 156 : (1962) 1 An. L.T. 247. In this case, the court took objection, at the time of the
presentation of the plaint, that the suit promissory note was insufficiently stamped and returned the
plaint for the specific purpose of enabling the plaintiff to pay the penalty. The plaint was there after
represented with the requisite penalty and at the stage of the trial of the suit, the promissory note
was tendered in evidence. The document was then marked and admitted and the endorsements
appearing thereon were initialled by the presiding officer as required by Order 13, Rule 4, C.P.C. and
no objection was taken regarding the admissibility of the document. It was held that the document
was admitted in evidence, and such admission could not be called in question at a subsequent stage
of the proceeding on the ground that it had not been duly stamped. In this case, the fact that the
pronote was insufficiently stamped was brought to the knowledge of the court even at the time of the
filing of the plaint. Then later, when that trial commenced, it was admitted, in evidence without any
objection on the side of the defendant. In such circumstances, it was held that Section 36 would
come into play. But the facts of the case before me are difference. Hence this ruling does not apply.
9. In Javer Chand v. Pukh Raj Surna A.I.R. 1951 S.C. 1655, the facts are: Suit was laid on the fact of
two hundis. The defendant resisted the claim on many grounds, inter alia contending that the
hundis were inadmissible in evidence because they had not been stamped according to Stamp Law.
It was admitted in evidence. The Apex Court had held that once a document has been marked as an
exhibit in the case and the trial has proceeded all along on the footing that the document was an
exhibit in the case and has been used by the parties in examination and cross-examination of their
witnesses, Section 36 of the Stamp Act comes into operation. Once a document has been admitted in
evidence, as aforesaid, it is not open either to the trial court itself or to a court of appeal or revision
to go behind that order. Thus, in this case, there was an objection taken by the defendant during
trial that the two hundis were insufficiently stamped. Thus, that was an issue raised by the
defendant. The facts of the case before me are different. In this case, none of the parties were aware
of the facts of the insufficiency of the stamp in the pronote and hence it was inadvertently marked.
So the ruling of the Apex Court, which I have referred earlier alone is applicable to this case.
10. From the above rulings, the following principles emerge:
(i) If none of the parties to a suit and the Judge noticed that a document was insufficiently stamped
and hence could not be admitted in evidence in view of Section 35 of the Indian Stamp Act, and the
document was inadvertently marked, Section 36 of the Indian Stamp Act will not come into play.
The presiding officer of the court, if at a later stage came to know of the mistake, can eschew it from
evidence,
(ii) If either the presiding officer of the court or any one of the parties therein were aware of the fact
that the document was insufficiently stamped but yet the document was admitted in evidence
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Arumugha Pillai vs Vadivel Pillai on 29 September, 1993

without any objection by either side, at any subsequent stage of the suit or in appeal or in revision, it
cannot be contended that the document was inadmissible in evidence and in these circumstances
Section 36 of the Indian Stamp Act will come into play.
11. This case falls under the first principle referred to above and hence the court below was right in
eschewing Ex. A-1 from evidence and while so, the suit has to be necessarily dismissed and the
dismissal of the suit by the court below is correct.
12. Mr. S.P. Subramanian, would further submit that even if the suit pronote was held to be
insufficiently stamped and the bar imposed by Section 35 of the Indian Stamp Act would become
operative, still the suit can be construed as one laid on the original debt and the court below ought to
have considered the evidence and recorded a finding and without adopting such a procedure had
simply dismissed the suit and that judgment cannot stand. He relied upon Perumal v. Kamakshi
A.I.R. 1938 785 (F.B.). In it, the Full Bench had held that if the promissory note embodies all the
terms of the contract and the instrument is improperly stamped, no suit on the debt will lie. Section
91 Evidence Act and Section 35 of the Stamp Act, bar the way. But if it docs not embody all the terms
of the contract the true nature of the transaction can be proved; and where an instrument has been
given as collateral security or by way of conditional payment, a suit on the debt will lie. Whether a
suit lies on the debt apart from the instrument therefore depends on the circumstances under which
the instrument was executed. The plaintiff cannot avail the benefit of this Full Bench ruling because
the claim in this case was solely on the fact of the promissory note, which was insufficiently
stamped. Hence neither this submission made by Mr. S.P. Subramanian can be accepted.
13. Since none of the submissions made by Mr. S.P. Subramanian finds acceptance with me, the
inevitable result is that this civil revision petition is to be dismissed and shall stand dismissed. No
costs.

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