Rajaboopathi Ammal Vs. Chinnathambi Padayachi - Court Judgment

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commercial - admissibility - section 100 of code of civil procedure, 1908 and sections 35, 36 and 61 of indian stamp act, 1899 - in case decree in earlier suit obtained on insufficiently stamped promissory note whether such decree is nullity as instrument itself not admissible in evidence under section 35 - question with regard to admissibility of document already admitted in evidence cannot be raised at any stage of same suit when case does not come under section 61 - held, appellant not entitled to raise plea that as decree in earlier suit passed on insufficiently stamped pronote such decree not valid in law. - a.s. venkatachalamoorthy, j. 1. the unsuccessful plaintiff before the courts below is the appellant herein.2. the plaintiff filed a suit against the defendant in o.s, no. 316/1987 on the file of the district munsif court, panruti praying the court to declare that the decree passed on 28.3.1985 in o.s. no, 165/85 against the plaintiff and sembulinga padayachi in favour of the defendant is not valid in law; in the alternative to allow the plaintiff to defend the case by directing the proceedings in o.s, no, 165/85 on the file of the district munsif court, panruti to reopen and to hear the case afresh and finally to issue an order of injunction restraining the defendant from executing the decree in o.s. no. 165/85.3. it is the case of the plaintiff that the respondent/defendant obtained ex parte decree against the plaintiff and sembulinga padayachi in o.s. no.165/85 on the file of district munsif court, panruti on the foot of the pronote executed by them on 19.2.1984 in favour of the defendant for rs. 1,500/- and to repay the same with interest @ 12% per annum. the case of the plaintiff is that in fact no summon was served on him in the suit and he came to know of the decree passed against her in o.s. no. 165/85 only on 31.3.1986 after the notice in e. a. no. 111/1986 in o.s. no. 165/85 was served. the further case of the plaintiff is that a petition filed by her under order ix rule 13, code of civil procedure, 1908 praying to set aside the ex pane decree was returned stating that the suit summon has been served on the plaintiff on 2.3.1985 through post. but, in fact, the plaintiff has not received any summon through post and that being so, the defendant obviously must have fabricated with the help of others and created the records as if summon was served to the plaintiff solely with the clear intention to obtain an ex pane decree. the plaintiff also raised the plea that the suit promissory note on which the defendant filed the suit is a rank forgery since neither herself nor sembulinga padayachi have executed any pronote as alleged by the plaintiff. yet another contention has also been raised to the effect that the said pronote in o.s. no. 165 has not been sufficiently stamped and that the defendant can not get a decree on the promissory note, which is not sufficiently stamped and hence the decree passed in o.s. no. 165/85 is invalid in law.4. the defendant inter alia resisted the suit by filing a detailed written statement. according to him, the plaintiff knowingly in order to delay and defeat the claim of the defendant remained ex parte willfully in o.s. no. 165/85. the further case set out in the written statement is that the plaintiff wantonly and intentionally refused to receive the summon in o.s. no. 165/85 and that the court has validly passed the decree setting himex pane. it is further pleaded that the allegation made in the plaint that solely with the intention to obtain ex pone decree the summon was said to have been served is without any basis whatsoever. the decree passed in one suit cannot be questioned by law by another suit.5. the learned district munsif framed as many as seven issues and examined the matter in detail. the trial court rejected the case of the plaintiff and dismissed the suit. being aggrieved by the judgment and decree of the learned district munsif, panruti, the plaintiff preferred the appeal in a.s. no. 192/89 on the file of the district court, cuddalore, the district judge, cuddalore also confirmed the judgment and decree of the trial court and dismissed the appeal.6. being aggrieved by the judgment of the tower appellate court, the plaintiff preferred the above appeal before this court. while admitting this second appeal the following two substantial questions of law have been framed : '(1) when once it is' found that the decree in earlier suit in o.s. no. 165 of 1985 had been obtained on an insufficiently stamped promissory note, whether such a decree is a nullity as the instrument itself is not admissible in evidence under section 35 of the indian stamp act ? (2) whether the learned district judge failed to infer that the earlier suit had been instituted deliberately and fraudulently and a decree obtained on an insufficiently stamped promissory note which rendered the decree itself a nullity 7. the learned counsel appearing for the appellant/plaintiff would put forth two submissions namely-(1) that the judgment and decree in o.s. no. 165/85 has to be declared as not valid in law since no summon was served on her in the said suit by the court before passing a decree; and (2) that as the suit pronote in o.s. 165/85 is insufficiently stamped, the decree that the defendant has obtained cannot be valid in law. 8. as far as the first submission is concerned the same has to be straightaway rejected as a matter of fact both the courts have concurrently come to the conclusion that there was proper service of summons.9. elaborating his second submission, the learned counsel for the appellant contended that in the promissory note filed in o.s. 165 of 1985 on the file of district munsif court, panruti, the stamp affixed is only for 20 paise as against the required 25 paise; it is the contention of the appellant that the respondent cannot get decree on such insufficiently stamped promote and hence the decree passed in o.s. 156of 1985 has to be declared as invalid in law.10. section 35 of the indian stamps act is to the effect that no instrument chargeable with duly 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.section 36 of the indian stamp act reads thus :'36. admission of instrument where not to be questioned- where an instrument has been admitted in evidence, such admission shall not, exceptas 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'.11. when it is the provision of law that a question with regard to admissibility of a document which has already been admitted in evidence cannot be raised at any stage of the same suit or proceeding, the plaintiff cannot raise such a contention when admittedly the case on hand does not come under proviso (section 61). the contention by the learned counsel for the appellant that the same was admitted in evidence in the earlier suit o.s. 165 of 1985 inadvertently even if accepted, cannot advance his case. in this context, the rulings of this court in bopanna prakasam v. nagabhushanam 1938 ii m.lj. 478 can be usefully referred. in the concluding paragraph of the said judgment, the court observed thus,--'... but as i have said, the tong track of decisions of this court is to the effect that the mere admission of the document as in this case will amount to admission within the meaning of the words in section 36 of the stamp act. i would, therefore, hold that the ruling of the court that it was open to the respondent to raise the question as regards the admissibility of the document is wrong and that he should not have been allowed to raise the question.'in fact, in the earlier paragraph, the court observed thus,--'... the words of section 36 are clear, it does not explicitly say, that there must be a judicial determination of the question in the sense the expression has been explained in some of the judgments, what it says is simply it must be admitted in evidence and if it is admitted in evidence as laid down in the rules of the civil procedure code, the plain meaning of the words is satisfied. it may be said that such admission would lead to this, that a mere mechanical act of admission would amount to an admission of a document within the meaning of section 36. i can quite see the force of this argument. but i have no doubt that the legislation when it enacted the law in section 36 was quite alive to this position and it seems to me that the words 'admitted in evidence' were deliberately used in order to avoid complicated enquiries regarding the admission and the difficulties necessarily attendant upon such enquiries....'12. in this view of the matter, this court is of the opinion that it would not be open to the appellant to raise the plea that inasmuch as the decree, in the earlier suit, was passed on insufficiently stamped pronote, such a decree is not valid in law.13. there are no merits in the second appeal and, consequently, the second appeal is dismissed. no costs.14. this court duly records the able assistance rendered by mr. v. raghavachari as amiens curiae.