Research › Search › Judgment

Andhra High Court · body

2007 DIGILAW 170 (AP)

Valluru China Lakshmi v. Majji Dharma Rao

2007-02-19

C.Y.SOMAYAJULU

body2007
Judgment :- (Petitioner under Section 25 of Act IX of 1887 to revise the order dated 18-8-2003 and made in Small Cause Suit No.47 of 2002 on the file of the Court of the Principal Junior Civil Judge, Bobbili. Revision petitioner filed the suit for recovery of the amount due under a promissory note dated 31.10.1999 executed by the respondent in her favour for Rs.1,300/- agreeing to repay the said amount with interest at 24% per annum alleging that, in spite of her getting issued a registered noticed through her counsel demanding payment of the amount, the respondent failed to send a reply or repaid the amount due under the promissory note. Respondent filed his written statement inter alia contending that the suit promissory note is a forged document and that he never executed that suit promissory note and did not receive consideration under the said promissory note. In support of her case, the revision petitioner, besides examining herself as P.W.1, examined the scribe and attestor of the promissory note as PWs.2 and 3, and marked Exs.A.1 to A.4. In support of his case, the respondent examined himself as D.W.1 but did not adduce any documentary evidence. The trial Court held the inasmuch as the revenue stamp on the suit promissory note is not properly cancelled, it is inadmissible in evidence and dismissed the suit. Hence, this revision. 2. The contention of the learned counsel for revision petitioner is that the trial Court, having admitted the suit promissory note in evidence as Ex.A.1, was in error in dismissing the suit on the ground that it is not admissible in evidence. It is her contention that in view of Section 36 of the Stamp Act when once a document is admitted in evidence it is not open to the Court to reject it on the ground that it is not properly stamped. It is also her contention that the trial Court was in error in not considering the fact that the respondent failed to take a plea in the written statement that the Ex.A.1 is not properly cancelled and so the trial Court ought not to have entertained such plea at the time of arguments that inasmuch as the suit promissory note is not cancelled no decree can be passed basing on Ex.A.1. It is her contention that since the evidence of P.Ws.2 and 3 clearly establishes the passing of consideration the trial Court ought to have decree the suit. The contention of the learned counsel for respondent is that since the trial Court gave cogent reasons for its conclusion that the suit promissory note is not admissible in evidence there are no grounds to interfere with the order under revision. 3. It is well know that the plea of inadmissibility of a document in evidence for its not being duly stamped has to be taken before its admission in evidence. After the document is admitted in evidence, it cannot, at the time of arguments, be contended that that document is inadmissible in evidence for its being insufficiently stamped, in view of Section 36 of the Stamp Act, 1899 (the Act), which lays down that after an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61 of the Act, be called in question at any stage of the same suit or proceeding on the ground of its not being duly stamped. The trial Court without keeping in view Section 36 of the Act erroneously dismissed the suit on the ground that the stamp on Ex.A.1 is not properly cancelled though a Division Bench of this Court in Penumalli Ramana Reddi v. Kanumuru Rukminiamma (1968 (1) AN.W.R.221) held that after an insufficiently stamped promissory note is admitted in evidence it is not open to the High Court, sitting in appeal, to review or revise the order of the trial Court, and hold that the document is inadmissible in evidence. Therefore, the finding of the trial Court that no decree can be passed on Ex.A.1, in view of its being insufficiently stamped is incorrect. 4. In may considered opinion, the trial Court also in error in holding that the stamp affixed to Ex.A.1 is not properly cancelled though the respondent did not take such plea in the written statement. Merely because the respondent took a plea that Ex.A.1 is forged, it cannot be said that he took a plea that as the stamp on Ex.A.1 is not properly cancelled it is not admissible in evidence. At the time of marking of the suit promissory note also no objection was taken in respect of its admissibility into evidence, on the ground that the stamp thereon is not properly cancelled. At the time of marking of the suit promissory note also no objection was taken in respect of its admissibility into evidence, on the ground that the stamp thereon is not properly cancelled. It cannot be said that the respondent is not aware as to how the stamp on Ex.A.1 was cancelled, before he filed his written statement because as per Rule 20(4) of Civil Rules of Practice and Circular Orders, every plaint or proceeding presented to or filed in court shall be accompanied by as many copies on plain paper of the plaint or proceeding and the document referred to in Rule 16, as there are defendants or respondents, unless the court otherwise dispenses with such copies of the documents, by reason of their length or for any other sufficient reason. So, a copy of Ex.A.1 must presumed to have been severed on the respondent. Even assuming that a copy of Ex.A.1 was not served on the respondent, as he, as per Rule 117 of the Civil Rules of Practice and Circular Orders, has a right to inspect the documents filed into Court before filing his written statement, respondent could have inspected the documents filed with the plaint and if he felt that the suit promissory note (Ex.A.1) is not properly cancelled, he should have taken a specific plea in the written statement that inasmuch as the stamp on the suit promissory note is not properly cancelled it is inadmissible in evidence. When respondent did not take any such plea in the written statement and did not object to its marking when it was being marked, he cannot, at the time of arguments, take the revision petitioner for surprise and contend that inasmuch as the stamp on Ex.A.1 is not properly cancelled it should be treated as an unstamped pronote and so the plaintiff should be non-suited. The trial Court was in error in accepting the contention of the respondent that the Ex.A.1 is not admissible in evidence as the stamp thereon is not properly cancelled. 5. All the above apart, the assumption of the trial Court that the stamp on Ex.A.1 is not properly cancelled is not a correct finding because the name of the respondent is written across the stamp and the thumb impression of the respondent is affixed towards the end of his name on the word ‘Nisani’. 5. All the above apart, the assumption of the trial Court that the stamp on Ex.A.1 is not properly cancelled is not a correct finding because the name of the respondent is written across the stamp and the thumb impression of the respondent is affixed towards the end of his name on the word ‘Nisani’. According to Section 12 of the Act cancellation of an adhesive stamp can be made by “Writing on or across the stamp his name or initials or the name or initials of his firm with the true date of his so writing, or in any other effectual manner.” In fact in Sudersanam v. S. Venkata Rao ( AIR 1963 AP 442 ) it is held that drawing of two parallel lines on the stamps is due cancellation of stamps. When the name of the respondent is written across the revenue stamps and his thumb impression is taken towards the end of the name on the word ‘Nisani’ it is but a proper cancellation of the stamp as contemplated by Section 12 of the Act. So, the trial Court clearly erred in holding that the stamp on Ex.A.1 is not properly cancelled. 6. The evidence of P.Ws.2 and 3 clearly establishes due execution of Ex.A.1 by the respondent. Nothing useful was elicited during their cross examination to show that respondent did not execute the Ex.A.1 and so the trial Court clearly erred in dismissing the suit. 7. For the above reasons, the revision petitioner is entitled to a decree as prayed for. Hence, the revision petition is allowed and suit of the revision petitioner is decreed with costs throughout.