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Judgment
This petition filed under Article 227 of the Constitution of India takes exception to the order dated 09.02.2016, whereby the objection raised by
the petitioner/defendant and his application (IA No.01/2016) were disallowed by the Court below.
Briefly stated, the relevant facts are that in the instant civil suit after completion of pleadings, issues were framed and thereafter the matter was
fixed for recording evidence of plaintiff. The plaintiff filed his affidavit under Order 18 Rule 4 CPC and during additional examination-in-chief, he
produced ''ikrarnama'' dated 19.01.2012 which was marked as Exhibit-P/1. The deposition dated 22.01.2016 shows that immediately after the
said additional examination-in-chief wherein the plaintiff produced and examined the said document, the matter was posted after lunch session.
Thereafter, at the outset, the petitioner/defendant raised the objection that the said document cannot be marked as exhibit. The Court below
adjourned the matter to decide the said objection. The petitioner filed I.A. No.01.2016 on 22.01.2016 and contended that the said ''ikrarnama'' is
not properly stamped, whereas the document shows that the plaintiff has acquired possession and obtained the amount in lieu thereof. Hence, the
said document cannot be marked as exhibit. The plaintiff opposed the said contention. The Court below rejected the objection of the present
petitioner on the basis of judgment of Supreme Court reported in AIR 1961 SC 1655 [Javer Chand & others vs. Pukhraj Surana]. The singular
reason assigned while rejecting the objection was that at the time the said document was marked as exhibit, no objection was raised by the present
petitioner.
Mr. Dubey, learned counsel for the petitioner criticize the same by taking assistance from the deposition dated 22.01.2016. In addition, he
placed reliance on the judgment of Supreme Court in Javer Chand (Supra) and argued that the said judgement has no application in the facts and
circumstance of the present case.
Per-contra, Mr. Pandey, learned counsel for the respondent No.1 supported the impugned order and contended that at the time the said
document was exhibited, the petitioner did not raise any objection. At the time of crossexamination, he raised the said objection which was rightly
disallowed by the Court below. He placed reliance on ILR 2009 (MP) 2630 [Champat Giri vs. Ramdayal & anr.] & 2017 (1) MPLJ 448
[Rakesh Kumar Sundrani & another vs. Jagdish Prakash Angal & others].
Mr. Sudeep Chatterjee, learned G.A. for the State submits that State is a formal party in this case.
No other point is pressed by the parties.
I have heard the parties at length and perused the record.
During the course of arguments, Mr. Pandey, learned counsel for the respondent No.1/plaintiff produced the certified copy of
proceedings/deposition dated 22.01.2016. The relevant portion of the said deposition reads as under:
VERNACULAR MATTER OMITTED
A bare perusal of the proceedings shows that soon after the said document was marked as exhibit by the plaintiff, the matter was posted after
lunch session. After the lunch session, at the outset, the petitioner raised the objection that the document cannot be exhibited. In this view of the
matter the pivotal question is wthether the said objection was rightly disallowed by the Court below. As noticed, the order of Court below is based
on the judgment of Supreme Court in the case of Javer Chand (Supra). It is condign to refer the relevant portion of the said judgment, which reads
as under:
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.
That section is categorical in its terms that when a document has once been admitted in evidence, such 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. The only exception recognised by the section
is the class of cases contemplated by s.61, which is not material to the present controversy. Section 36 does not admit of other exceptions. Where
a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be
decided then and there when the document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document in
evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision and has far-reaching effects.
Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to
be alert to see that the document is not admitted in evidence by the Court. The Court 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. The record in this case discloses the fact that the hundis were
marked as Exs. P. 1 and P. 2 and bore the endorsement ''admitted in evidence'' under the signature of the Court. It is not, therefore, one of those
cases where a document has been inadvertently admitted, without the Court applying its mind to the question of its admissibility. 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, s. 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. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior
jurisdiction.
[Emphasis Supplied]
A simple reading of aforesaid para makes it clear that in the said case the record clearly disclosed the fact that the ''hundis'' in question were
marked as exhibit and bore the endorsement ''admitted in evidence'' under the signature of the Court. At the later part of proceedings, when
objection was sought to be raised, it was disallowed in view of Section 36 of the Indian Stamp Act. In the instant case, the petitioner raised
objection immediately after the said document was marked as an exhibit. The said document does not contain any endorsement by the Court that it
is admitted and marked as exhibit. In other words, the Court before raising the objection by petitioner did not decide to admit the document in
evidence. Thus, in the peculiar facts and circumstances of this case, it is clear that the objection was raised by the present petitioner with quite
promptitude and it cannot be said that the said objection was an afterthought or preferred at belated stage. In the case of Champat Giri (Supra) on
which reliance in placed by Mr. Pandey, the objection was not raised by the aggrieved party at appropriate strage and similarly in the case of
Rakesh Kumar Sundrani (Supra) the objection was raised later on which is clear from the finding given in para 5 of the judgment. Thus, the said
judgments relied by Mr. Pandey cannot be pressed into service.
This is settled in law that a judgments of Courts cannot be read as euclid''s theorem. It depends on the facts and circumstances in which
judgments are delivered. Even a single fact may change the precedential value of the judgments. [See: (2003) 2 SCC 111, (Bhavnagar University
vs. Palitana Sugar Mill (P) Ltd. & other) and (2011) 5 SCC 708 (Sushil Suri Vs. Central Bureau of Investigation and another)].
In my considered opinion, the argument of Mr. Dubey, learned counsel for the petitioner has substantial force that the Court below has
mechanically applied the judgment of Supreme Court in the case of Javer Chand (Supra) in the peculiar facts and circumstances of this case.
As analyzed above, the in the present case, the present petitioner has raised the objection about admissibility of document with quite
promptitude and the Court below has erroneously rejected the said objection. In the result, the order dated 09.02.2016 is set aside. The Court
below is directed to consider the objection raised by the petitioner and decide it afresh in accordance with law.
Petition is allowed to the extent indicated above. No cost. The Registry is directed to keep the certified copy of order/proceedings dated
22.01.2016 in the record carefully. C.C. as per rules.