Patna High Court
Ramchandra Tewary vs Gajadhar Das And Ors. on 6 September, 1966
Equivalent citations: AIR1967PAT276, AIR 1967 PATNA 276
Author: N.L. Untwalia
Bench: N.L. Untwalia
ORDER N.L. Untwalia, J.
1. The plaintiff-petitioner filed a small cause court suit against the defendant opposite parties for realisation of certain money based upon a handnote. The suit has been dismissed by the learned Small Cause Court Judge. Hence, this application under Section 25 of the Provincial Small Cause Courts Act by the plaintiff.
2. The handnote in question was proved by the plaintiff-petitioner himself when he deposed as P W 1 on the 28th January 1964, in the Court below. The document was marked as Ext. 1 but after objection. The order sheet of that dale, being order No. 21, indicates that the objection on behalf of the opposite parties was that old stamps were pasted on the document and the requisite stamps which ought to have been pasted at the time of the alleged execution of the handnote were not there it therefore required impounding under Section 35 of the Indian Stamp Act. The Court seems to have accepted this objection and directed the impounding of the document.
The document was impounded and a penalty of Rs 5/-, the amount determined on impounding was paid. At the time when the case was decided the learned Small Cause Court Judge found that the handnote if insufficiently stamped or not properly stamped could not be admitted in evidence by impounding under Section 35 of the Stamp Act. In that view of the matter he held that it was not admissible in evidence and. therefore a presumption that the document was for consideration under Section 118 of the Negotiable Instruments Act was not available to the petitioner. He however, considered the evidence of both sides and held that the petitioner has failed to prove that the money was advanced by him to the defendant-opposite parties or that he was entitled to realisation of the amount on the basis of the alleged advancing of the loan. In that view of the matter, he dismissed the suit of the petitioner.
3. The learned Advocate-General, who has appeared in support of this application, has placed reliance upon Section 36 of the Stamp Act which says:
"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 duty stamped."
He has cited two decisions in support of his contention that once a document is admitted in evidence, such admission cannot be called In question at any stage of the same suit or proceeding, including the stage of the suit in the same court. Those decisions are in Dasi Chamar v. Ram Autar Singh. AIR 1923 Pat 404 and Basavaiah Naidu v. T. Venkateshwa-rulu, AIR 1957 Andh Pra 1022.
4. The point as presented is well established and is quite clear from the language of Section 36 of the Stamp Act itself The only point of some difficulty and difference in this ease was that at the time of admission of the handnote in question it was admitted subject to the objection of the other side that it required impounding. The objection was upheld and as I have said above, the impounding fee was charged. The effect of this was that the document which ought not to have been admitted in view of the provisions contained in Section 36 of the Stamp Act, as the proviso to that section was not attracted to the case of promissory note, was wrongly admitted by charging the impounding fee. But yet the result was that it was admitted in evidence, either by overlooking the main provision of Section 35 or by wrongly construing the proviso appended to it Tn either view of the matter. Section 36 comes into play and did come into play in this case The learned Small Cause Court Judge was wrong thereafter in excluding the handnote from evidence and in saying that the presumption under Section 118 of the Negotiable Instruments Act was not available In the petitioner.
5. Sitting in revision I did not think it advisable to examine the evidence of either side myself and since the decision of the court below has been given on appreciation of the evidence by taking an erroneous view of law in regard to the admissibility of the handnote and consequently on the point of presumption arising out of it, it has got to he set aside and the case has to go back to the court below for fresh decision after hearing fresh argument on the fooling that the handnote admitted in evidence cannot be excluded. It has got to be taken into consideration and the presumption under Section 118 of the Negotiable Instrument Act has got to be kept in view.
6. In the result, I allow this application, set aside the decision of the learned Small Cause Court Judge and remit hack the case to him for a fresh decision in the light of the observations made above. I would make no order as to costs.