J. M. A. RAJU v. KRISHNAMURTHY BHATT — 1975 DIGILAW 89 (GUJ)

B. J. DIVAN, D. A. DESAI, S. N. PATEL, J. ( 1 ) THE main question with which we are concerned in the present reference to the Full Bench is whether the decision of a Division Bench of this Court in PRABHUDAS V. BHOGILAL (1967) 8 G. L. R. 649 is overruled by necessary implication by the decision of the Supreme Court in M. L. SETHI V. R. P. KAPUR A. I. R. 1972 S. C. 2379. ( 2 ) THIS Civil Revision first came up for final hearing before one of us on October 16 1973 and at that time in view of the decisions in Civil Revision Application No. 731 of 1967 decided on January 11 1967 and M. L. Sethi v. R. P. Kapur (supra) and the decision of the Division Bench of this Court in Prabhudas v. Bhogilal (supra) the matter was referred to a Division Bench. Thereafter the matter came up for hearing before the Division Bench consisting of M. U. Shah and B. K. Mehta JJ. and by their referring judgment dated December 19 1973 the Division Bench referred the case to a larger bench in view of the decision of the Supreme Court in M. L. Sethi v. R. P. Kapur (supra) and under these circumstances the matter has now come before this Full Bench. ( 3 ) IN order to appreciate the controversy involved in this case we will set out the facts giving rise to this litigation. The petitioner herein is the original defendant and the opponent is the original plaintiff. The plaintiff filed a suit against the defendant for a decree in the sum of Rs. 7 0 and interest and the suit was on the strength of a document which was marked 4/1. This document was executed by the defendant in favour of the plaintiff. According to the plaintiff this document was a promissory note payable on demand. The document was tendered in evidence when the plaintiff was being examined in chief. 7 0 and interest and the suit was on the strength of a document which was marked 4/1. This document was executed by the defendant in favour of the plaintiff. According to the plaintiff this document was a promissory note payable on demand. The document was tendered in evidence when the plaintiff was being examined in chief. The defendant had raised an objection at the time of admission as to the admissibility of this document and his contention was that the document was a promissory note payable otherwise than on demand and therefore under Item 49 of Schedule I of the Indian Stamp Act 1899 it was required to be stamped as if it was a bill of exchange and the proper stamp duty payable thereon was the same as on a bill of exchange for the same amount payable otherwise than on demand. The document bore a stamp of 50 paise in the shape of five stamps of ten paise each. It is common ground that if the document were to be treated as a promissory note payable otherwise than on demand the stamp would be much more than 50 paise. It has been contended on behalf of the defendant before the learned 9th Joint Civil Judge (Junior Division) Baroda before whom the suit is pending that since this is a promissory note by virtue of sec. 35 Proviso (a) the document cannot be admitted in evidence at all since it was a promissory note and once it is found that the promissory note is insufficiently stamped it cannot be admitted in evidence at all. The learned 9th Joint Civil Judge (Junior Division) Baroda by his order dated August 3 1970 held that the document shold be exhibited as Exhibit 60 on the record of the case. The document was marked Exhibit 60 and he directed the document to be marked as a regular exhibit on the record of the case. At that stage the defendant came to this High Court by way of this Civil Revision Application. The matter came up for admission before our learned brother S. H. Sheth J. on September 2 1970 He admitted the matter and granted interim stay of further proceedings in the suit and since that date the further proceedings in the suit are stayed. The matter came up for admission before our learned brother S. H. Sheth J. on September 2 1970 He admitted the matter and granted interim stay of further proceedings in the suit and since that date the further proceedings in the suit are stayed. 3 In order to appreciate the controversy involved in this case it is necessary to refer to some of the sections of the Indian Stamp Act 1899 Section 35 provides 35 No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence or shall be acted upon registered or authenticated by any such person or by any public officer unless such instrument is duly stamped: provided that (a) any such instrument not being an instrument chargeable with a duty not exceeding ten naye paise only or a bill of exchange or promissory note shall subject to all just exceptions be admitted in evidence on payment of the duty with which the same is chargeable or in the case of an instrument insufficiently stamped of the amount required to make up such duty together with a penalty of five rupees or when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees of a sum equal to ten times such duty or portion. Sec. 36 of the Indian Stamp Act is in these terms : 36 Where an instrument has been admitted in evidence such admission shall not except as provided in sec. 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. Sec. 61 of the Indian Stamp Act provides for revision of certain decisions of Courts regarding the sufficiency of stamps but that decision is not to affect the admissibility of the document in evidence after having been decided upon by the trial Court at the stage of admission of the document; it has been given such finality as is referred to in sec. 36. ( 4 ) WE may also mention at this stage that the principal question before us is regarding the scope of the powers of the High Court under sec. 36. ( 4 ) WE may also mention at this stage that the principal question before us is regarding the scope of the powers of the High Court under sec. 115 of the Code of Civil Procedure when dealing with an order admitting or refusing to admit a document at the stage when the document is tendered in evidence before the trial Court and the decision regarding admissibility turns upon the question of sufficiency or otherwise of stamp affixed on the document in question. Sec. 115 of the Code of Civil Procedure is in these terms: 115 Revision :- The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto and if such subordinate Court appears- (a) to have exercised a jurisdiction not vested in it by law or (b) to have failed to exercise a jurisdiction so vested or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity High Court may make such order in the case as it thinks fit. Before we start dealing with the specific decisions on this point it is worthwhile considering as to what is the purpose of the Indian Stamp Act. 5 In HINDUSTAN STEEL LTD. V. M/s. D. C. COMPANY 1969 (1) S. C. C. 597 Shah J. as he then was delivering the judgment of the Supreme Court observed in paragraph 7 at page 600: the Stamp Act is a fiscal measure enacted to secure revenue for the State on certain classes of instruments: It is not enacted to arm a litigant with a weapon of technicality to meet the case of his opponent. The stringent provisions of the Act are conceived in the interest of the revenue; once that object is secured according to law. the party staking his claim on the instrument will not be defeated on the ground of the initial defect in the instrument. Viewed in that light the scheme is clear. Sec. 35 of the Stamp Act operates as a bar to an unstamped instrument being admitted in evidence or being acted upon; the Supreme Court then went on to consider the effect of sec. 40 of the Stamp Act and also of sec. 42 sub-sec (1 ). We are not concerned in this case with the controversy regarding sec. Sec. 35 of the Stamp Act operates as a bar to an unstamped instrument being admitted in evidence or being acted upon; the Supreme Court then went on to consider the effect of sec. 40 of the Stamp Act and also of sec. 42 sub-sec (1 ). We are not concerned in this case with the controversy regarding sec. 40 or sec. 42 but it is clear that we have to consider the provisions of the Stamp Act as a fiscal measure the principal object of Which is to secure revenue for the State but the object of the Stamp Act is not to enable parties to raise technical objections to meet the case of its opponent. ( 5 ) IT must be noted that under sec. 36 the crucial words are where an instrument has been admitted in evidence. It is obvious that once the document has been admitted in evidence the 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 words admitted in evidence were interpreted by the Supreme Court in JAVER CHAND V. PUKHRAJ SURANA A. I. R. 1961 S. C. 1655. Sinha C. J. delivering the Judgment of the Supreme Court has pointed out at page 1656 of the report after setting out the provisions of sec. 36 of the Stamp Act 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 sec. 61 which is not material to the present controversy. Sec. 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 Sec. 35 is in the nature of a penal provision and has far-reaching effects. Once the Court rightly or wrongly decides to admit the document in evidence so far as the parties are concerned the matter is closed Sec. 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. (Emphasis supplied by us.) mr. S. B. Majmudar for the petitioner drew our attention to the fact that the Supreme Court then proceeded to observe : 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 sec. 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 this 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. Mr. Majmudar contended before us in the light of this last quoted passage from the decision of the Supreme Court that a document could be said to be admitted in evidence only when after the document has been marked as Exhibit it had been used by the parties in examination and cross-examination of their witnesses. Mr. Majmudar contended before us in the light of this last quoted passage from the decision of the Supreme Court that a document could be said to be admitted in evidence only when after the document has been marked as Exhibit it had been used by the parties in examination and cross-examination of their witnesses. He contended that immediately after the decision of Court is reached that the document should be admitted in evidence and the contention of the party who objects to the admission of the document has been overruled but before it has been used for the purpose of examination and cross-examination of witnesses it is open to the party concerned to approach the High Court in revision under sec. 115 of the Code of Civil Procedure objecting against the correctness of the decision of the trial Court to admit the document in evidence. In the instant case we are concerned with the facts where the trial Court decided to admit the document in evidence but Mr. Majmudars contention would govern also a case where the trial Court decides not to admit the document in evidence. ( 6 ) WE are unable to accept this contention of Mr. Majmudar because in the first passage which we have cited the Supreme Court speaking through Sinha C. J. has made it clear that once the decision has been taken by the trial Court and that decision may be right or wrong-regarding the admissibility of the document in evidence and particularly when the trial Court has decided to admit the document in evidence so far as the parties to the suit are concerned the matter is closed and what is meant by admission in evidence is marking of the document as an Exhibit in the case which shows application of mind regarding the admissibility this amounts to admitting in evidence. In that particular case the documents concerned were tendered in evidence. The penalty on the two documents was levied by the trial Court and after the payment of penalty has been exhibited and numbered under the signature of the presiding officer of the Court and they had been introduced in evidence and were also referred to and read in evidence by the defendants counsel and it was in the context of facts of that particular case that the Supreme Court observed in the passage relied upon by Mr. Majmudar about the trial proceeding all along on the footing that the document was an exhibit in the case and had been used by the parties in examination and cross-examination of their witnesses. In our opinion the crucial stage is the stage of marking the document as an exhibit in the case. That is the stage at which the Court decides to admit the document in evidence and once that stage is reached according to this decision in Javer Chand v. Pukhraj Surana (supra) the decision of the Court to admit the document in evidence is reached and once that decision to admit the document is reached so far as the parties are concerned the matter is closed by virtue of the operation of sec. 36 of the Stamp Act. This is the only meaning that can be attached to the observations of the Supreme Court in Javer Chand v. Pukhraj Surana (supra ). Our attention has not been drawn to any other decision of the Supreme Court which detracts from or modifies this interpretation of sec. 36 of the Stamp Act. ( 7 ) IN our opinion apart from the provisions of sec. 115 of the Code of Civil Procedure in view of the fact that the principal object of the Indian Stamp Act is to collect revenues for the State and the stringent provisions of the Stamp Act have been enacted with a view to see that the revenues of the State are realised to the utmost extent as provided by law once the trial Court decides to admit a document as properly or sufficiently stamped the decision has to be accepted as final and the matte has to be treated as closed and it is not open to any superior Court either in appeal or revision to sit in judgment over the decision to admit the document in evidence or to review judicially the decision of the trial Court to admit the document in evidence. We may point out that the bar of sec. 36 of the Stamp Act applies only to the decision of the trial Court to admit the document in evidence. If the trial Court decides not to admit a particular document in evidence it is always open to the aggrieved party to make it a ground of appeal before the Court of Appeal and get the matter decided by the appellate Court. If the trial Court decides not to admit a particular document in evidence it is always open to the aggrieved party to make it a ground of appeal before the Court of Appeal and get the matter decided by the appellate Court. But so far as the decision to admit the document on record is concerned once the trial Court rightly or wrongly decides to admit the document in evidence in the sense in which the Supreme Court explained that phrase in Javer Chand v. Pukhraj Surana (supra) the matter so far as the parties are concerned is closed. ( 8 ) THE decision in Prabhudas v. Bhogilal (supra) was by a Division Bench consisting of Bhagwati J. as he then was and Bakshi J. and two questions were considered by the Division Bench. First question was as to what was the meaning of the words case decided occurring in sec. 115 of the Code of Civil Procedure and second question was as to what was the scope of clauses (a) (b) and (c) of sec. 115 of the Code of Civil Procedure. The facts of the case before the Division Bench were that a suit was filed by the plaintiffs in the case against the defendant of that case to recover a sum of Rs. 3 600 being the amount of three instalments due and payable by the defendants to the plaintiffs under a document Exhibit 4/1 executed by defendants Nos. 1 and 2 in favour of the plaintiffs. The plaintiffs also relied on another document Exhibit 4/2 in support of that claim though the claim was rested primarily on the document Exhibit 4/1. Inter alia the defendants contended in the written statement that the documents Exhibits 4/1 and 4/2 were promissory notes and since they were inadequately stamped they were not admissible in evidence. One of the issues framed by the trial Court was whether the documents Exhibits 4/1 and 4/2 were promissory notes and hence inadmissible in evidence. Inter alia the defendants contended in the written statement that the documents Exhibits 4/1 and 4/2 were promissory notes and since they were inadequately stamped they were not admissible in evidence. One of the issues framed by the trial Court was whether the documents Exhibits 4/1 and 4/2 were promissory notes and hence inadmissible in evidence. At the trial of the suit when the plaintiffs partner was in the witness-box and was being examined-in-chief the documents Exhibits 4/1 and 4/2 were sought to be tendered in evidence and as objection was raised on behalf of the defendants against their admissibility the trial Court heard arguments on the question whether the documents Exhibits 4/1 and 4/2 were promissory notes and by an order dated February 20 1962 the trial Court held that the said documents were promissory notes and being inadequately stamped they were inadmissible in evidence. The trial Court answered the relevant issue against the plaintiffs and at that stage the plaintiffs preferred the Revision Application to the High Court challenging the decision of the trial Court not to admit the documents Exhibits 4 and 4/2 as evidence in the case. It was in this context that the question of maintainability of the Revision Application under the provisions of sec. 115 of the Code of Civil Procedure arose before the Division Bench. The Division Bench held that where the question of admissibility arises in regard to a document which constitutes the foundation of some right or obligation in controversy between the parties in the suit or proceeding so that the decision of the question of admissibility would by its direct and immediate consequence of its own force determine such right and obligation it would not be correct to say that the decision of the question of admissibility is merely a decision of a question under the Evidence Act: since it decides a part of the suit or proceeding by determining the right or obligation in controversy between the parties it would amount to a decision of a case within the meaning of sec. 115. 115. The Division Bench pointed out that ordinarily a decision of a question of admissibility of a document would be nothing more than a decision of a question under the Evidence Act and would not amount to a decision of a case but there may be cases where such a decision may decide an issue or a part of a suit or proceeding and in such cases the decision would certainly be a case decided The Division Bench further held that under clauses (a) and (b) sec 115 of the Code of Civil Procedure if a subordinate Court has jurisdiction to decide a question before it it may decide it rightly or wrongly whether the question be one of law or fact; that would not bring the case within either of the two clauses of sec. 115. It is only where the error of law or fact has relation to the jurisdiction of the subordinate Court to try the dispute that the section would he attracted. A plea of limitation or a plea of res judicata is a plea of law which concerns jurisdiction of the Court trying the proceeding. If an erroneous decision is in favour of the party raising the plea the Court would be refusing to exercise jurisdiction vested in it and if on the other hand the erroneous decision is against the party raising the plea the Court would be clutching at jurisdiction it does not possess. In either case the section would be attracted: Clause (b) in the former case and clause (a) in the latter. The Division Bench also pointed out that the position would be the same where there is an error of fact having relation to the jurisdiction of the Court. Such a case would arise where the jurisdiction of the Court depends on the existence or non-existence of a collateral fact and by an erroneous decision of that fact the Court assumes jurisdiction not vested in it or deprives itself of jurisdiction so vested. In such a case the High Court would be entitled to revise the erroneous decision under clause (a) or clause (b) of sec. 115. In arriving at this conclusion the Division Bench relied upon the decision of the Privy Council in JOY CHAND LAL V. KAMALAKSHA CHAUDHURY 76 IND. APP. In such a case the High Court would be entitled to revise the erroneous decision under clause (a) or clause (b) of sec. 115. In arriving at this conclusion the Division Bench relied upon the decision of the Privy Council in JOY CHAND LAL V. KAMALAKSHA CHAUDHURY 76 IND. APP. 131 the decisions of the Supreme Court in MAHINDRA LAND AND BUILDING CORPORATION V. BHUTNATH A. I. R. 1964 S. C. 1336 and CHOUBE JAGADISH PRASAD V. GANGA PRASAD A. I. R. 1959 S. C. 492. It also relied in this connection on the decision of the Supreme Court in PANDURANG V. MARUTI A. I. R. 1966 S. C. 153. It was also urged before the Division Bench that even if the matter might not fall within clause (a) or clause (b) of sec. 115 it would amount to an illegality or material irregularity and would fall within clause (c) of sec. 115 of the Code of Civil Procedure. In the light of the decision of the Supreme Court in KESHARDEO CHAMARIA V. RADHAKISAN CHAMARIA A. I. R. 1953 S. C. 23 where the decision of Vivian Bose J in his order of reference in NARAYAN SONEJI V. SHESHRAO VITHOBA A. I. R. 1948 NAGPUR 258 was cited with approval the Division Bench held that the words illegally and material irregularity in clause (c) do not cover either errors of fact or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes 11ave been complied with. In the light of this decision of the Supreme Court in Keshardeo Chamaria v. Radhakisan Chamaria (supra) the Division Bench held that a mere error of law in the exercise of jurisdiction is not enough. What is necessary is that the subordinate Court must have acted illegally that is in breach of some provision of law or with material irregularity that is by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. The Division Bench in this connection also referred to VENKATAGIRI AYYANGAR V. HINDU RELIGIOUS ENDOWMENTS BOARD MADRAS 76 IND. APP. The Division Bench in this connection also referred to VENKATAGIRI AYYANGAR V. HINDU RELIGIOUS ENDOWMENTS BOARD MADRAS 76 IND. APP. 67 and it held that this was the test which must be applied in order to determine whether the case falls within clause (c) of sec. 115 of the Code of Civil Procedure. ( 9 ) AFTER examining the scope and ambit of sec. 115 and particularly in the light of the interpretation regarding all the three clauses of sec. 115 the Division Bench in paragraph 9 at page 657 of the report observed- the question whether the document Exhibit 4/1 was a promissory note and was therefore by reason of inadequacy of stamp inadmissible in evidence was clearly a question within the jurisdiction of the Trial Court and the decision of this question one way or the other did not have any relation to the jurisdiction of the trial Court. It cannot be said that by erroneous decision of this question the trial Court clutched at jurisdiction it did not possess or refused to exercise jurisdiction vested in it by law. Nor can it be said that the trial Court in arriving at the decision acted in breach of any provision of law or committed any error of procedure in the course of the trial which could be regarded as material. Of course it must be conceded that if the decision of the trial Court was erroneous the error committed by the trial Court was undoubtedly an error of law for the decision turned on the question whether the document Exhibit 4/1 was a promissory note within the meaning of sec. 2 (22) of the Stamp Act which would be clearly a question of law but this error of law did not have relation to and was not concerned with the jurisdiction of the subordinate Court and therefore none of the three clauses of sec. 115 was attracted in the present case. The revision application was therefore incompetent. ( 10 ) IT may be pointed out that in D. L. F. HOUSING ETC. CO. 115 was attracted in the present case. The revision application was therefore incompetent. ( 10 ) IT may be pointed out that in D. L. F. HOUSING ETC. CO. V. SARUP SINGH A. I. R. 1971 S. C. 2324 the Supreme Court considered the dicisions of the Privy Council in BALAKRISHNA UDAYAR V. VASUDEVA AYYAR 44 IA 261 and RAJA AMIR HASSAN KHAN V. SHEO BAKSH SINGH 11 IA 237 It also referred to the earlier decision of the Supreme Court in KESHARDEO V. RADHAKISAN (SUPRA) and in paragraph 7 Dua J. delivering the judgment of the Supreme Court observed at page 2327- the mass of reported cases only serve to show that the High Courts do not always appreciate the limits of their jurisdiction under this section. The legal position was authoritatively laid down by the Privy Council as far back as 1894 in RAJA AMIR HASSAN KHAN V. SHEO BAKSH SINGH. . . . . . . The Privy Council again pointed out in BALAKRISHAN UDAYAR V. VESUDEVA AYYAR. . . . . . that this section is not directed against the conclusions of law or fact in which the question of jurisdiction is not involved. This view was approved by this Court in Keshar Deo v. Radhakisan. . . . . and has since been reaffirmed in numerous decisions. Thus the view taken by the Supreme Court approving the decision of the Full Beach of the Nagpur High Court in the Supreme Court decision in KESHARDEO CHAMARIA V. RADHAKISAN CHAMARIA (SUPRA) is still good law and that principle has not been departed from. At this stage it is necessary to refer to the decision of the Supreme Court in VORA ABHASBHAI V. HAJI GULAMNABI (1964) 5 G. L. R. 55. Shah J as he then was delivering the judgment of the Supreme Court pointed out in paragraph 14 that in that particular case the District Court was in error in assuming that by tendering in Court rent at the rate specified in the order dated February 14th 1957 the requirement of sec 12 (3) (b) regarding payment or tender of standard rent was satisfied. Against the decision of the District Court a Revision Application was entertained by the High Court and in paragraph 15 Shah J. observed the question then arises: had the High Court jurisdiction to set aside the order of the District Court in exercise of its powers under sec. 115 of the Code of Civil Procedure ? The District Court on an erroneous view of sec. 12 (3) (b) held that the requirements of that provision were complied with by the defendant but it also 7 that having regard to the circumstances the readiness and willingness contemplated by sub-sec. (1) was otherwise established. The High Court had in exercise of its powers under sec. 115 Code of Civil Procedure no authority to set aside the order merely because it was of the opinion that the judgment of the District Court was assailable on the ground or error of fact or even of law. Jurisdiction to try the suit was conferred upon the Subordinate Judge by sec. 28 (1) (b) of the Act and the decree or order passed by the Subordinate Judge was by sec. 29 (1) (b) subject to appeal to the District Court of the District in which he functioned but all further appeals were by sub-sec. (2) of sec. 29 prohibited. The power of the High Court under sec. 115 Code of Civil Procedure was not thereby excluded but the exercise of that power is by the terms of the statute investing it severely restricted. The High Court may exercise its powers in revision only if it appears that in a case decided by a Subordinate Court in which no appeal lies thereto the Subordinate Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity. As observed by the Privy Council in Balakrishna Udayar v. Vasudava Aiyar. . . . . . . . the section (sec. 115 of the Code of Civil Procedure) applies to jurisdiction alone the irregular exercise or non-exercise of it or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved. . . . . . . . the section (sec. 115 of the Code of Civil Procedure) applies to jurisdiction alone the irregular exercise or non-exercise of it or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved. Therefore if the Trial Court had jurisdiction to decide a question before it and did decide it whether it decided it rightly or wrongly the Court had jurisdiction to decide the case and even if it decided the question wrongly it did not exercise its jurisdiction illegally or with material irregularity. Rajah Amir Hassan Khan v. Sheo Baksh Singh. . . . . . The same view about the scope of sec. 115 of the Code of Civil Procedure was also taken by the Supreme Court in CHOUBE JAGDISH PRASAD V. GANGA PRASAD A. I. R. 1959 S. C. 492. J. L. Kapur J. delivering the judgment of the Supreme Court after considering the earlier decisions of the Privy Council and the Supreme Court observed in paragraph 19 at page 497 of the report sec. 115 Civil P. C. empowers the High Court in cases where no appeal lies to satisfy itself on three matters: (a) that the order made by the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise its jurisdiction; (c) that in exercising the jurisdiction the Court has not acted illegally that is in breach of some provision of law or with material irregularity that is by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. Per Sir John Beaumont in VENKATAGIRI AYYANGAR V. HINDU RELIGIOUS ENDOWMENT BOARD MADRAS. . . . . Therefore if an erroneous decision of a subordinate Court resulted in its exercising jurisdiction not vested in it by law or failing to exercise the jurisdiction so vested or acting with material irregularity or illegality in the exercise of its jurisdiction the case for the exercise of powers of revision by the High Court is made out. In JOY CHAND LAL BABU V. KAMALAKSHA CHAUDHURY. . . . . . . . . . In JOY CHAND LAL BABU V. KAMALAKSHA CHAUDHURY. . . . . . . . . . the subordinate Court gave an erroneous decision that the loan was a commercial loan and therefore refused to exercise jurisdiction vested in it by law and the Privy Council held that it was open to the High Court to interfere in revision under sec. 115. . . . . In Keshardeo Chamaria v. Radhakisan. . . . . . both these judgments of the Privy Council as also the previous judgments in Amir Hassan Khan v. Sheo Baksh Singh. . . . . and Balakrishna Udayar v Vasudeva Aiyar. . . . . . were reviewed and it was held that see. 115 Civil P. C. applies to matters of jurisdiction alone the irregular exercise or non-exercise if it or the illegal assumption of it. Thus if a subordinate Court had jurisdiction to make the order it made and has not acted in breach of any provision of law or committed any error of procedure which is material and may have affected the ultimate decision then the High Court has no power to interfere. But if on the other hand it decides a jurisdictional fact erroneously and thereby assumes jurisdiction not vested in it or deprives itself of jurisdiction so vested then the power of interference under sec. 115 Civil P. C. becomes operative. ( 11 ) IN the instant case it is obvious that when the trial Court Judge decided to admit the document in evidence he was exercising jurisdiction vested in him by law and it is obvious in the light of the decision in KESHARDEO CHAMARIA V. RADHA KISAN- (SUPRA) that under clause (c) the High Court can entertain a Revision Application only if there is some illegality or meterial irregularity in the manner of arriving at that decision and not in the decision itself. ( 12 ) MR. Majmudar for the petitioner has very strongly relied upon the following observations of Mathew J. in M. L. SETHI V. R. P. KAPUR (SUPRA) and contended before us that in the light of those observations of Mathew J. the Revision Application in the instant case is maintainable under sec. 115 of the Code of Civil Procedure. ( 12 ) MR. Majmudar for the petitioner has very strongly relied upon the following observations of Mathew J. in M. L. SETHI V. R. P. KAPUR (SUPRA) and contended before us that in the light of those observations of Mathew J. the Revision Application in the instant case is maintainable under sec. 115 of the Code of Civil Procedure. It may be pointed out that the case before the Supreme Court in M. L. Sethi v. R. P. Kapur arose out of an order for discovery of documents. A suit was filed in forma pauperis for recovery of damages to the tune of Rs. 7 48 0 for malicious prosecution. Notice of the petition to sue in forma pauperis was given to the State Government and the appellant under Order 33 Rule 6 of the Code of Civil Procedure. Both the Government and the appellant filed objections stating that the respondent (plaintiff) was not a pauper The appellant thereafter filed an application for discovery of documents from the respondents (plaintiff) for proving that the respondent was not a pauper. The Court passed an order directing the respondent (original plaintiff) to discover on affidavit the documents relating to the bank accounts of the respondents namely pass-books cheque books counterfoils etc. and the question before the Supreme Court was whether a Revision Application against this order directing the discovery of documents would lie. Mathew J. referred to the earlier decisions of the Privy Council in RAJA AMIR HASSAN KHAN V. SHEO BAKSH SINGH. (SUPRA) BALAKRISHNA UDAYAR V. VASUDEVA AIYAR (SUPRA) to the decisions of the Supreme Court in Mahindra Land and Building Corporation Lid. v. Bhutmatj Namerkee (supra) and Vora Abbasbhai v. Haji Gulamnabi (supra) and also to the decision in PANDURANG DHOND V MARUTI BARI JADHAV A. I. R 1966 S. C. 153. In paragraph 10 Mathew J. observed the word jurisdiction is a verbal cast of many colours. Jurisdiction originally seems to have had the meaning which Lord Reid ascribed to it in ANISMINIC LTD. V. FOREIGN COMPENSATION COMMISSION (1969) 2 AC 147 namely the entitlement to enter upon the enquiry in question. If there was an entitlement to enter upon an inquiry into the question then any subsequent error could only be regarded as an error within the jurisdiction. V. FOREIGN COMPENSATION COMMISSION (1969) 2 AC 147 namely the entitlement to enter upon the enquiry in question. If there was an entitlement to enter upon an inquiry into the question then any subsequent error could only be regarded as an error within the jurisdiction. The best known formulation of this theory is that made by Lord Denman in R. V. BOLTON (1841) 1 Q. B. 66. He said that the question of jurisdiction is determinable at the commencement not at the conclusion of the enquiry. In ANISMINIC LTD. (1969) 2 AC 147 Lord Reid said but there are many capes where although the tribunal had jurisdiction to enter on the enquiry it has done or failed to do something in the course of the enquiry which is of such a nature that As decision is a nullity it may have given its decsion which it had no power to make It may have failed in the course of the enquiry to comply with the requirements of natural justice It may in perfect good faith have misconstrued the provisions giving it power to act so that it faded to deal with the question remitted to it and decided sow question which was not remmitted to it it may have refused to take into account something which it was required to take into account or it nay have based its decision on some matter which under the provisions setting it up it had no right to take into account. I do not intend this lit to be exhaustive. In the same case Lord Pearce said:- lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things. Which are conditions precedent to the tribunal having any jurisdiction to embark on an enquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage while engaged on a proper enquiry the tribunal may depart from the rules of natural justice; or it may ask itself the wrong question; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which the Parliament did direct. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which the Parliament did direct. Any of these things would cause it purported decision to be a nullity. The dicta of majority of the House of Lords in the above case would show the extent to which lack and excess of jurisdiction have been assimilated or in other words the extent to which we have moved away from the traditional concept of jurisdiction. The effect of the dicta in that case is to reduce the difference between jurisdictional error and error of law within jurisdiction almost to vanishing point. The practical effect of the decision is that any error of law can be reckoned as jurisdictional. This comes perilously close to saying that there is jurisdiction if the decision is right in law but none if it is wrong. Almost any misconstruction of a stature can be represented as basing their decision on a matter with which they have no right to deal imposing an unwarranted condition or addressing themselves to a wrong question. The majority opinion in the case leaves a Court or Tribunal with virtually no margin of legal error. Whether there is excess of jurisdiction or merely error within jurisdiction can be determined only by constructing the empowering statute. which will give little guidance. It is really a question of how much lattitude the Court is prepared to allow. In the end it can only be a value judgment (See H. W. R. Wade Constitutional and Administrative Aspects of the Anismenic case. Law Quarterly Review Vol. 85 1969 P. 1971 ). Why is it that a wrong decision on a question of limitation or res judicata was treated as a jurisdicitional error and liable to be interfered with in revision? It is a bit difficult to understand how an erroneous decision on a question of limitation or res judicata would oust the jurisdiction of the Court in the primitive sense of the term and render the decision or a decree embodying the decision a nullity liable to collateral attack. The reason can only be that the error of law was considered as vital by the Court. And there is no yardstick to determine the magnitude of the error other than the opinion of the Court. The reason can only be that the error of law was considered as vital by the Court. And there is no yardstick to determine the magnitude of the error other than the opinion of the Court. Mathew J. in paragraph 12 of the judgment pointed out that in that particular case before the Supreme Court the trial Court had jurisdiction to pass the order for discovery. Even if lack of jurisdiction was assumed to result from every material error of law-even an error of law within the jurisdiction in the primitive sense of the term the Supreme Court did not think the order was vitiated by any error of law. The rejection of the application for time and the consequent dismissal of the petition for permission to sue in forma pauperis could hardly be said to sound in jurisdictional error even in the extended sense as already explained. It is thus clear that on the facts of that particular case the Supreme Court found that there was no error of law committed while passing the order for discovery of documents. It must be pointed out that while citing with approval the passages from the decision of the House of Lords in ANISMINIC LTD. V. FOREIGN COMPENSATION COMMISSION regarding the meaning of the word jurisdiction and the scope of the concept of jurisdiction Mathew J. has not overruled any of the earlier decisions either of the Privy Council or of the Supreme Court. It may be pointed out that the decision in M. L. Sethi v. R. P. Kapur (supra) was rendered by a bench of two Judges consisting of P. Jaganmohan Reddy and Mathew JJ. and the earlier decision in Vora Abbasbhai v. Haji Gulamnabi (supra) was delivered by a Bench of the Supreme Court consisting of three Judges namely A. K. Sarkar J. C. Shah and Raghubar Dayal JJ. The decision in D. L. F. HOUSING ETC. CO. V. SARUP SINGH (SUPRA) was by a bench of the Supreme Court consisting of Vaidialingam and Dua JJ. and in CHAUBE JAGDISH PRASAD V. GANGE PRASAD (SUPRA) the decision of the Supreme Court was rendered by a bench consisting of Imam Das and J. L. Kapur JJ. It is therefore not possible for us to accept the contention of Mr. Majmudar that these observations of Mathew J. regarding the meaning of the word jurisdiction in the context of sec. It is therefore not possible for us to accept the contention of Mr. Majmudar that these observations of Mathew J. regarding the meaning of the word jurisdiction in the context of sec. 115 of the Code of Civil Procedure introduced a new concept because the Bench of two Judges of the Supreme Court could not have overruled and has not in fact overruled any of the earlier decisions of the Supreme Court on the question. We are unable to accept the contention of Mr. Majmudar that any new departure has been made by the Supreme Court in M. L. Sethi v. R. P. Kapur (supra) so far as the interpretation regarding the scope of the power of the High Court under sec. 115 of the Code of Civil Procedure is concerned. In any event in view of the interpretation put upon sec. 36 of the Stamp Act by the Supreme Court in JAVER CHAND V. PUKHRAJ SURANA (SUPRA) it is clear that so far as the decision to admit a document into evidence is concerned the decision of the trial Court is to be final and so far as the parties are concerned the matter is closed. It is all the greater reason therefore that under sec. 115 of the Code of Civil Procedure at least as regards the decision to admit a document the High Court cannot have any power under sec. 115 of the Code of Civil Procedure to interfere with the order holding that the document is properly stamped and should be admitted in evidence. As pointed out earlier the Stamp Act is a fiscal measure and even if a trial Court has decided the question of admissibility wrongly no superior Court either of appeal or revisions can interfere with that decision. It is particularly in the context of sec. 36 of the Stamp Act that we have to consider the applicability of sec. 115 and taking the provisions of sec. 36 of the Stamp Act in conjunction with the interpretation put upon the power of the High Court under sec. 115 of the Code of Civil Procedure in our opinion is clear that the observations of Mathew J. in M. L. Sethi v. R. P. Kapur (supra) do not alter the legal position in any respect. 36 of the Stamp Act in conjunction with the interpretation put upon the power of the High Court under sec. 115 of the Code of Civil Procedure in our opinion is clear that the observations of Mathew J. in M. L. Sethi v. R. P. Kapur (supra) do not alter the legal position in any respect. ( 13 ) JUST as in the case of Vora Abbasbhai v. Haji Gulamnabai (supra) the Court functioning under the Rent Act had jurisdiction to decide the question under section 12 (3) (b) of the Rent Act similarly in the present case under the provision of the Code of Civil Procedure the trial Court had the jurisdiction to decide the question of admissibility and under the clear scheme of section 36 the decision of the trial Court regarding the admissibility of the document and to admit the document is final and is not liable to be revised ar reviwed in appeal by any superior Court. ( 14 ) UNDER these circumstances at least so far as the question of maintainability of a revision application under section 115 of the Code of Civil Procedure against the decision to admit or not to admit a document is concerned no difference whatsoever is made to the legal position as explained in Prabhudas v. Bhogilal (supra) by the Division Bench of this Court and the observations of Mathew J. in M. L. Sethi v. R. P. Kapur (supra) make no difference to the legal position as there explained. ( 15 ) MR. Majmudar for the petitioner drew our attention to several decisions of the different High Courts to which we will now briefly refer. In Poonamchand v. M/s. Bastiram A. I. R. 1969 Rajasthan 313 in paragraph 4 the question was under the Stamp Act. Jagat Narayan J. sitting singly held that it was only a decision on merits arrived at in the proper exercise of jurisdiction which could be corrected on an application under section 115 of the Code of Civil Procedure on the ground that it was erroneous in law. All procedural errors fell under clause (c) and the question as to whether a document was admissible or not admissible was a matter of procedure. The first preliminary objection under section 115 had therefore no force. All procedural errors fell under clause (c) and the question as to whether a document was admissible or not admissible was a matter of procedure. The first preliminary objection under section 115 had therefore no force. With respect to the learned Judge of the Rajasthan High Court we are unable to accept his conclusion because the effect of the different decision of the Supreme Court which we have referred to in the course of this Judgment was not considered by the learned Judge. ( 16 ) THE next decision relied upon by Mr. Majmudar was UNION OF INDIA V. R. M. AGARWAL A. I. R. 1971 BOMBAY 52. Bhole J. sitting singly in that particular case was not concerned with the question of Stamp Act and hence it is not necessary for us to refer in details to that decision. Bhole J. there held that where the lower Court came to the decision that an endorsee to railway receipt could file suit against railway though he is not owner of goods the decision was contrary to a rule of law and the lower Court having acted in exercise of jurisdiction illegally or with material irregularity the decision could be interfered with under section 115. ( 17 ) IN RAGHUNATH V. SEETHARAM A. I. R. 1972 MYSORE 344 Datar J. of the Mysore High Court sitting singly held that where the Court below decides the question arising under the Stamp Act and passes an order that the disputed document is a promissory note duly stamped and as such is admissible in evidence the order has to be challanged without delay in revision and cannot be kept for adjudication at a later stage. The contention that the document could also be considered as bond and higher stamp duty as a bond has to be paid on the document could not be considered as that question was not raised in the Court below and was being urged for the first time at the hearing of revision petition. With respect to the learned single Judge of the Mysore High Court we are unable to accept his reasoning particularly because the learned Judge has not considered the full effect of the different decisions of the Supreme Court regarding the scope of sec. 115 of the Code of Civil Procedure. ( 18 ) THE next decision relied upon by Mr. With respect to the learned single Judge of the Mysore High Court we are unable to accept his reasoning particularly because the learned Judge has not considered the full effect of the different decisions of the Supreme Court regarding the scope of sec. 115 of the Code of Civil Procedure. ( 18 ) THE next decision relied upon by Mr. Majmudar was RAMNATH V. RAM BAHADUR A. I. R. 1973 ALLAHABAD 290 where O. P. Trivedi J Sitting singly has considered the question of maintainability of a Revision Application against an order deciding the question of admissibility in evidence of a document for want of registration. He held that the reading by the lower appellate Court of an award which was inadmissible in evidence for want of registration (even for a collateral purpose) amounted to a material error of procedure in the exercise of jurisdiction within the meaning of sec. 155 clause (c ). So far as the effect of clause (c) of sec. 115 is concerned we are unable to agree with the conclusion of the learned single Judge of the Allahabad High Court because in our opinion after the decision of the Supreme Court in Keshardeo v. Radhakisan (supra) it must be held that clause (c) of sec. 115 applies only to the manner of arriving at the decision rather than to the decision itself. ( 19 ) IN SANJAY COTTON CO. V. OMPRAKASH A. I. R. 1973 BOMBAY 40 which has been relied upon by Mr. Majmudar the facts were such that on any interpretation of sec. 115 the Revision Application would be maintainable The learned single Judge of the Bombay High Court there held that if in the conduct of the proceeding pending in the lower Court a matter has been concluded with material irregularity or illegality the High Court can interfere in revision even at the interlocutory stage of the proceed. ing. Refusal by the Court of permission to cross-examine upon documents not admitted amounted to material error apparent on the face of the record. The real question therefore before Masodkar J. was about the manner of arriving at the decision and the procedural error committed by the trial Court rather than about the error of law committed in the exercise of jurisdiction vested in it by law. ( 20 ) THE next case which has been relied upon by Mr. The real question therefore before Masodkar J. was about the manner of arriving at the decision and the procedural error committed by the trial Court rather than about the error of law committed in the exercise of jurisdiction vested in it by law. ( 20 ) THE next case which has been relied upon by Mr. Majumdar is C. A. FERNANDES V. A. L. P. FURTADO A. I. R. 1975 GOA DAMAN and DIU 27. In paragraph 9 of the judgment of the learned Additional Judicial Commissioner who was sitting singly it has been pointed out that the learned trial Judge had acted with material irregularity in shutting out evidence at the preliminary stage itself with the result that virtually the applicantdefendant had become defenceless. This irregularity in procedure went to the root of the matter and must be removed at that stage only. The case therefore was about the manner of arriving at the decision. In any event the learned Additional Judicial Commissioner was not concerned with the problem which is facing us in the present case. . ( 21 ) MR. Majmudar drew our attention to a decision given by me sitting singly in (RAICHAND GOKAL V. NARSHIBHAI DAMODAR) Civil Revision Application No. 731 of 1963 decided by me on January 11 1967 It was a revision application and the question was of admissibility of a document which was said to be insufficiently stamped. However the question of maintainability of the Revision Application was not raised and had not been considered and that decision cannot help Mr. Majmudar in the present case. ( 22 ) HE also relied upon a decision of N. G. Shelat J. sitting singly in (Patel Surajben Jesingbhai v. Patel Nagjibhai) Civil Revision Application No. 843 of 1962 decided by him on November 10 1966 In the course of the judgment dealing with the objection regarding the maintainability or the Revision Application Shelat J. observed-- ordinarily speaking no doubt the High Court would be slow in interfering in revision against orders passed at an interim stage of the suit as after the suit is decided if that part of the order was illegal it would be remedied in appeal. But apart from the considerations contemplated in sec. But apart from the considerations contemplated in sec. 115 of the Civil Procedure Code when the fate of the suit virtually depends upon the determination of the nature of the document sued upon and more particularly when by reason of the provisions contained in sec. 36 of the Indian Stamp Act it would not be open to the defendant to challenge the part of the finding later either in appeal or in revision under sec. 36 of the Indian Stamp Act. The decision in Javer Chand v. Pukhraj Surana (supra) was referred to by N. G. Shelat J. With respect we are unable to agree with him on his reading of that decision of the Supreme Court. He observed later on not to allow any such matter being agitated in revision against such an order would he to deprive him of a remedy against an order which according to him is not legal. It is therefore clear that much though the order challenged is one passed at an interim stage of the suit on a preliminary issue raised by the Court it is an order which if it is found to be illegal the High Court in revision would be justified in interfering under sec. 115 of the Civil Procedure Code. With respect to N. G. Shelat J. we are unable to agree with this reading of the scope of sec. 115 of the Code of Civil Procedure particularly when he has not considered the scope of the different clauses of sec. 115. ( 23 ) UNDER these circumstances and in the light of the above discus sion we hold that the decision of the Division Bench of this Court in Prabhudas v. Bhogilal (supra) and particularly what has been mentioned in paragraph 9 of the judgment is no way modified by the observations of Mathew J. in M. L. Sethi v. R. P. Kapur (supra ). We must make it clear that we are confining our decision only to the scope of sec. 115 of the Code of Civil Procedure in the context of a decision to admit or not to admit a document in evidence on the ground of sufficiency or otherwise of stamp and in the context of sec. 35 proviso (a) of the Indian Stamp Act. 115 of the Code of Civil Procedure in the context of a decision to admit or not to admit a document in evidence on the ground of sufficiency or otherwise of stamp and in the context of sec. 35 proviso (a) of the Indian Stamp Act. ( 24 ) UNDER these circumstances we hold that the Civil Revision Application is not maintainable and the same should therefore be dismissed. The rule is discharged. In view of the fact that there was considerable scope for argument as regards the law relating to maintainability of the Civil Revision Application there will be no order as to costs. ( 25 ) IN view of the fact that this is a pretty old matter the trial Court is directed to dispose of the matter as expeditiously as possible and preferably within three months from to day. Writ to be sent down immediately. ( 26 ) AFTER the above judgment was pronounced in open Court Mr. Majmudar for the petitioner applied under Article 133 (1) of the Constitution for leave to appeal to the Supreme Court. In our opinion the points that we have decided in this matter are all covered by one or the other decision of the Supreme Court and hence now there is no substantial question of law of general importance which is needed to be decided by the Supreme Court. In view of this conclusion the oral application is rejected. .