(1) The question that arises in this revision case is solely one of law, as the material facts are not in controversy. The petitioner sued for the recovery of a sum of rs. 499, being the amount of the debt borrowed by the defendants from him on the 6th september, 1951. He relied upon a payment made on the ist september, 1954, as saving the debt from the bar of limitation. The plaintiff produced in the lower court, exhibit a - 1, a promissory note executed by the defendants in his favour, on the reverse side of which there is an endorsement of payment. The lower court dismissed the suit holding that the promissory note not having been sufficiently stamped, the suit laid on the foot of that note was not maintainable.
(2) Mr. Pooraiah, learned counsel for the petitioner, has contended that the promissory note having been admitted in evidence, section 36 of the stamp act prohibited the rejection of the document at a subsequent stage of the suit. In this contention, he is supported by the decision of mr. Justice viswanatha sastri in basavayya naidu v. Venkateswarlu. He has alternatively contend d thatt the endorsement of payment, evidenced by exhibit a - 1, constitutes an acknowledgment of the original debt and the suit haviag been laid on the basis of the anterior indebtedness, it should have been decreed mr. E. Venkatesam, learned counsel for the respondents, has however contend d that the admission of exhibit a - 1 did not satisfy the requirements of section 36 of the sfamp act inasmuch as there was no decision on contest when the endorsement of admission was made on the promissory note, that it wav a mere mechanical act and that therefore the view taken by the lower court was correct.
(3) From the endorsements on the plaint, the following facts emerge : - the plaint was presented on the and of september, 1957, along with the promissory note. Or. The 3rd of september there is an endorsement on the plaint which reads as follows : - "penalty of re. 1 is to be paid on the suit document as the same is a pronote for rs. 500 but stamped with anna 1 label instead of as. A. Returned. Time 7 days. " the plaint was re - presented on the gth september, 1957. The penalty of re. 1 as required by the office endorsement has been paid there is a further endorsement on the plaint, dated 12th september, 1957, which read; : - "it is to be stated how the suit is maintainable on a pronote insufficiently stamped. "
(4) The advocate for the plaintiff stated that the suit was based on the debt and the note was only the evedence of the d bt. Thereafter notices were issued to the defendants. They filed the written statement on the 30th of october, 1957. The defendants raised the objection that the promissory note being insufficiently stamped, the suit was not maintainable. The plaintiff gave evidence as p. W. 1 and the promissory note which was proved by him, was marked as exhibit a - 1. From the notes of ev'dence it does not appear that at that stage any objection was taken by the defendants to the admissbility of the document. The endorsement appearing on the promissory note is initialled by the learned district munsif. The endorsement of payment was marked in the evidence of p. W. 1 as exhibit a - 2 and this was similarly initialled by the presiding officer in his own handwriting. The usual appendix of evidence attached to die judgment contains the following entry : - "documents marked for plaintiff. Exhibit a - 1, dated 6th september, 1951 - suit promissory note executed by the defendant in favour of plaintiff for rs. 500. Exhibit a - 2, dated ist september, 1954 - endorsement of payment on exhibit a - 1 for rs. 80. '
(5) The effect of these entries on the document has to be understood in the light of order 13, rules 4 and 6 of the civil procedure code. Order 13, rule 4, requires that there shall be endorsed on every document which has been admitted in evidence in the suit certain particulars and that the endorsement shall be signed or initialled by the judge. Rule 79 of the civil rules of practice provides that exhibits admitted in evidence shall be marked in the manner indicated in the rule. That the promissory note has on it the endorsement as required by order 13, rule 4, and rule 79 of civil rules of practice does not admit of any controversy. Nevertheless, it is argued that the admission of the document, exhibit a - i, in evidence, was not the result of any judicial determination of the question whether it could be admitted in evidence or not for want of sufficient stamp. It is said that the court did not apply its mind to the question whether die document is admissible or not. Mr. Venkatesam relied upon the decision of philips and wallace, jj. , in venkanna v. Parasuram byas, where it is pointed out that a document could not be deemed to have been admitted in evidence until the judge applied his mind to a consideration of its admissibility. The learned judges there pointed out that it was not clear whether the trial judge or the clerk of the court placed the rubber - stamp containing the initials of the judge on the document and that it was very doubtful whether the provisions of order 13, rule 4, have been complied with. On that finding, the learned judges held that the document could not be deemed to have been admitted in evidence. Mr. Venkatesam has also relied upon the decision of mr. Justice satyanarayana rao in yerri swdmi v. Chinna vannurappa. There on a consideration of the facts, the learned judge reached the conclusion that the document must have been marked tentatively. Indeed, the learned judge observed that the district munsif did not look into the document at the time when they were marked ; for, if he had done so, "he would have noticed that they bear only a postage and revenue stamp of one anna each. "
(6) There are several decisions rendered by division benches of the madras high court which have taken the view that a document which is insufficiently stampedj when once received and admitted in evidence, cannot be rejected at a subsequent stage by reason of the provisions of section 36 of the indian stamp act. The decision of their lordships of the supreme court in annamlal v. Veerappa, puts the matter beyond doubt. Their lordships observed that the provisions of section 36 of the stamp act preclude the appellants from raising any objection against the admission of the document at the appellate stage and that where a document has been admitted in evidence by the lower courts, such admission cannot be called in question at any stage of the proceedings on the ground that it has not been duly stamped.
(7) It is, however, argued by mr. Venkatesam that the learned district munsif could not have judicially determined the admissibility of the promissory note at the stage of making his endorsement thereon ; for, if he had done so, he would not have persuaded himself to reconsider the question which was raised as the material issue in the case. The question as to whether a document has been admitted or not depends upon the facts of each case. Where, as was the case in venkanna v. Parasuram byas, the court made the endorsement or where, as in the decision rendered by mr. Justice satyanarayana rao, the admission was tentative, there can be no difficulty and it is open to the court to consider the question of the admissibility of the document at a. Subsequent stage. But, in the present case, the district munsif did take an objection even at the time of the filing of the suit that the promissory note was not sufficiently stamped. The fact that it was not duly stamped was therefore within the knowledge of the court and the plaint was returned for the specific purpose of enabling the plaintiff to pay the penalty. It was thereafter re - presented with the requisite penalty and at the stage of the trial of the suit the promissory note was tendered in evidence by the plaintiff. The document was then marked and admitted with the requisite initials of the presiding officer appearing on. The endorsements. To say that even at that stage it was not necessary for the defendants to dispute the admissibility of this document is to ignore the provisions of section 36 of the indian stamp act. If they did not choose to object to the admissibility of the document at least at that stage, they would be precluded from impugning the admissibility of the document at a subsequent stage of the proceeding.
(8) As pointed out by mr. Justice viswanatha sastri, in the case of a judicial proceeding which is required to be reduced to writing, the record made by the judge furnishes authentic evidence of what he intended to do and in applying the provisions of section 36 of the stamp act, the court should have regard to what has been actually done and not to the unexpressed intentions of the judge. The judge might have intended to reject the document, but if in fact he had not rejected it, but admitted it in evidence, it must be acted upon at all the subsequent stages of the litigation. It was open to the defendants to raise the objection but that objection was not taken with the result that the document was admitted in evidence. I am fortified in the view i have taken by the decision of mr. Justice seshachelapati in s. R. Rice mill v. Tukardos ropandas1. Having regard to the conclusion reached by me on this question, it is not necessary for me to consider the other question based on the endorsement of payment, exhibit a - 2.
(9) For the above reasons, the judgment of the lower court must be set aside and this revision petition allowed. The suit is accordingly decreed with costs both here and the court below. Revision allowed. Suit decreed.