TMI Blog1961 (4) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiffs' suit. Each party was directed to bear its own costs throughout. The High Court granted the necessary certificate under Art. 133(1)(a) of the Constitution. That is how the appeal is before us. 2. It is only necessary to state the following facts in order to appreciate the question of law that has to be determined in this appeal. The defendant-respondent is said to have owed money to the plaintiffs, the appellants in this case, during the course of their business as commission agents for the defendant, at Bombay. Towards the payment of those dues, the defendant drew two mudatti hundis in favour of the plaintiffs, for the sum of 35 thousand rupees, one for 20 thousand rupees payable 61 days after date, and the other for 15 thous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis of the suit, being unstamped, were inadmissible in evidence ? (OD*) (*which perhaps are meant to indicate that the onus was on the defendant in respect of this issue). 5. It appears that the defendant led evidence first, in view of the fact that the onus lay on him. He was examined as D.W.-5, and in his examination-in-chief he stated, I did not receive any gold towards these hundis. I asked them to return the hundis, but they did not return them. I had drawn the two hundis marked Ex. P. 1 and Ex. P. 2. They are written in Roopchand's hand. I did not receive any notice to honour these hundis. His other witnesses, D.Ws. 1, 2 and 4 were cross-examined with reference to the terms of the hundis and as to who the author of the hu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any, the document shall be admissible in evidence. It was also noticed that when the suit was filed in January, 1949, stamp duty and penalty were paid in respect of the hundis, acting upon the law, namely, the Marwar Stamp Act, 1914. The High Court also pointed out that the documents appear to have been admitted in evidence because the Trial Court lost sight of the fact that in 1947 a new Stamp Act had come into force in the former State of Marwar, amending the Marwar Stamp Act of 1914. The new law was, in terms, similar to the Indian Stamp Act. The High Court further pointed out that after the coming into effect of the Marwar Stamp Act, 1947 the hundis in this case could not be admitted in evidence, in view of the provisions of s. 35, prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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