Om Parkash vs Data Ram

D.S. Tewatia, J.—This appeal at the instance of the defendant arises out of the suit for the recovery of Rs. 3,000/- allegedly advanced to him by the plaintiff on the strength of a pronote and duly evidenced by him by executing a receipt.

Both these documents i.e. pronote and receipt when filed in Court were alleged to be without stamp and so their admissibility was questioned by the defendant. The following preliminary issue was framed:-

Whether the pronote and receipt bore stamp at the time of the filing of the suit?

Before this preliminary issue could be decided, the parties made a statement on 17th July that issue on merits be also struck and the case be tried as a whole. The trial Court decreed the suit and the judgment and decree of the trial Court was sustained by the lower appellate Court.

Mr. Puran Chand, learned counsel for the appellant urged that both the Courts below decided the suit without returning a finding on the preliminary issue.

The learned counsel is clearly mistaken in this regard. A perusal of the judgment of learned lower appellate Court from paragraph 10 onwards would clearly show that he dealt with the question as to whether the two documents at the time of execution were stamped or not. He came to a finding on the basis of the evidence on the record that both the documents bore stamp at the time when these were executed.

The question arises as to at what stage the stamps had been removed? Plaintiff's case was that the stamps were removed after the case was filed in the Court, while the defendant disputed this fact and alleged that the documents did not bear stamp when these were filed in Court. This aspect of the case as to whether the documents when filed in the Court did bear or did not bear stamp was no doubt gone into. But, for the decision of this case what is relevant is as to whether the documents, even if assuming that when these were filed in Court did not bear stamp, can be received in evidence or not. Once it is held that the documents had been stamped at the time of execution, then even if the documents when placed in Court did not bear stamp these will be admissible in evidence.

The provisions of section 35 or the Stamp Act were intended to ensure that the instrument chargeable with duty do not escape payment thereof and therefore, if such instrument did not bear stamp these were made inadmissible evidence. Once it is found that, in fact, the instrument did bear stamp at the time of execution, then the purpose of section 35 is served.

The view that an instrument which was duly stamped at the time of execution is admissible in evidence even if on the date when it was filed in the Court did not bear the requisite stamp, finds support from the following observation in Ml. Mewa Kunwari v. Bourey 1:-

Where a premissory note is duly stamped at the time of the execution, the document is admissible in evidence if at the time it is tendered in evidence it is no larger "duly stamped" by reason of the loss or removal of the stamp.

Mr. Puran Chand, learned counsel for the appellant, then tried to deal with the evidence in order to prove that, in fact, no money had been advanced to the appellant. Before the lower Appellate Court no such point had been urged. The appellant had concentrated only on the legal point already dealt with. He cannot be permitted to go into the evidence bearing upon the question as to whether the money in fact, was or was not advanced to the defendant by the plaintiff.

For the afore-mentioned reasons, this appeals fails and the same is dismissed with no order as to costs.