Research › Search › Judgment

Calcutta High Court · body

2006 DIGILAW 123 (CAL)

SHYAMAL KUMAR ROY v. SUSHIL KUMAR AGARWAL

2006-02-28

PRATAP KUMAR RAY

body2006
PRATAP KR. RAY, J. ( 1 ) HEARD the learned Advocates appearing for the parties. ( 2 ) IN this application under Article 227 of the Constitution of India, only question has been raised that once any document is admitted in evidence and marked as 'exhibit', subsequently such order whether could be recalled for impounding the instrument in absence of the payment of proper stamp-duty. By the impugned order dated 23rd June, 2005 of this application passed by learned 2nd Civil Judge (Senior Division), Barasat in Title Suit No. 4 of 1999, learned Trial Court refused to recall the order dated 17th February, 2003, as per prayer of defendant-petitioner thereto for impounding the agreement, which was exhibited and marked dispensing with formal proof of document. ( 3 ) IT is the case of the petitioner that as the concerned document being an instrument was not properly stamped, the same was inadmissible in evidence and as such prayer to recall the order dated 17th February, 2003 whereby and whereunder the concerned document was admitted in evidence dispensing with the formal proof of the document and marked as 'exhibit". To adjudicate the point, the Court need not to detain itself as there is a statutory embargo under section 36 of the Indian Stamp Act, 1899 providing, inter alia, that once the instrument is admitted in evidence, save and except, as provided under 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. Section 36 of the Indian stamp Act reads to this effect:"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, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. " ( 4 ) IN view of such statutory embargo even under Order 13 Rule 4 of the civil Procedure Code by which the Court was empowered to reject any document as not admissible at any stage of the suit would not empower the Court to recall any order, once a document has been admitted in evidence by dispensing with the formal proof thereof and marked as 'exhibit'. In the instant case on 17th February, 2003 the agreement was produced by the plaintiff himself and it was admitted in evidence on dispensing with the formal proof of the document and accordingly marked as 'exhibit-1'. After it was marked as 'exhibit-1' dispensing with formal evidence, even if, it is not properly stamped, section 36 of the Indian Stamp Act, 1899 became effective, which is a statutory mandate. This issue was considered by the Apex Court in the case Javer Chand vs. Pukhraj surana, reported in AIR 1961 SC 1655 , a Constitution Bench judgment. The relevant portion of the report reads to this effect:"once the Court rightly or wrongly, decides and admit the document in evidence, so far as the parties are concerned, the matter is closed. 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. " ( 5 ) IN the instant case it appears that the concerned document was admitted in evidence in presence of both the parties and furthermore formal proof of the document was dispensed with by the parties concerned and accordingly it was marked as 'exhibit'. In view of such state of affairs, even if, the document is not properly stamped, section 36 of the Indian Stamp Act has its effect and such position cannot be changed. The Apex Court has dealt with the matter in details in the case of Javer Chand (supra) and held that even if erroneously any document is admitted in evidence, section 36 of the Indian Stamp Act has its applicability and it cannot be reopened further. ( 6 ) HAVING regard to such statutory provision read with the judgment of the apex Court as already referred to, this Court is not finding any merit in this revisional application and the impugned decision cannot be said as perverse but on the other hand the decision is very much justified on proper analysis of the law. Hence, application stands dismissed. Application dismissed.