JUDGMENT
Arun Kumar Bhattacharya, J.
1. The hearing stems from an application filed by the petitioner praying for revision of the order being No. 103 dated 29.01.2000 passed by the learned Civil Judge (Sr. Div.), Diamond Harbour in T.S. No. 124/1994.
2. The circumstances leading to the above revision are that the disputed property belongs to O.P. Nos. 5 to 7. There was an agreement dated 15.06.1992 between O.P. No. 4 and the said O.Ps. 5 to 7 for sale of the property. As the said O.Ps. 5 to 7 refused to execute the deed after tender of Rs. 1,75,000/- on 25th Aswin, 1399 B.S. by O. P. No. 4, the latter instituted T.S. No. 124/1994 in the Court of learned Civil Judge (Sr. Div.), Diamond Harbour for specific performance of contract. The present petitioner who was added as a plaintiff in the said suit filed a ‘Sikritipatra’ dated 07.10.1994 executed between him and plaintiff/O.P. No. 4 which was marked ‘exhibit’ after objection. O.P. Nos. 1 to 3 were subsequently added as defendants. O.P. Nos. 1 & 2 filed a petition on 23.12.1999 for expunging the said ‘Sikritipatra’ from the list of exhibited documents on the ground that it does not bear any stamp-duty which was allowed by the learned Civil Judge (Sr. Div,), Diamond Harbour by the impugned order being No. 103 dated 29.01.2000 directing the petitioner to pay stamp-duty according to the market value.
3. Being aggrieved by, and dissatisfied with, the said order, the present revision has been preferred.
4. All that now requires to be considered is whether the learned Court below was justified in passing the said order.
5. As none appeared on behalf of the O.P., the application was heard ex parte.
6. Mr. S.P. Roy Chowdhury, learned Counsel for the petitioner, assailed the impugned order on two-fold grounds viz. (1) since the document in question is a mere acknowledgement of transaction, it is not liable to be impounded and (2) when the document has been marked as an ‘exhibit’ in the suit, in view of Section 36 of the Indian Stamp Act, 1899 it cannot be called in question at any stage of the proceeding that it has not been duly stamped, and neither the Trial Court nor the Court of Appeal or Revision even can go beyond that order, in support of which a decision was cited.
7. So far the first ground above is concerned, the nature of an instrument has to be determined with reference to the recitals of the same. In the case on hand, the relevant portion of recitals of the alleged ‘Sikritipatra’ dated 07.10.1994 executed by one Gour Chandra Mondal in favour of the present petitioner Mujibar Rahman Mondal runs as follows :
“… As it was difficult for him to continue the suit, he sold his right of purchase by virtue of the said agreement for sale as also the right to continue the suit to the petitioner for Rs. 1,20,000/- on 05.10.1994, but since no deed could be executed at that time due to some difficulty, as a token of said transfer this ‘Sikritipatra’ is executed declaring that the petitioner will be substituted as plaintiff in his place to continue the suit, to get the sale deed executed in his favour after obtaining the decree by virtue of the said agreement for sale and to pay the balance amount of Rs. 100,000/- to the vendor. This ‘Sikritipatra’, if necessary, may be treated as an agreement for transfer of title as also right to continue the suit.”
8. A glance to the above, especially the underlined language, will reveal that the document in question is virtually an agreement for sale and assignment of right to continue the suit and not an acknowledgement pure and simple. So, in view of item (d) of Article 5 of Schedule 1 A inserted by the Indian Stamp (W. B. Amendment) Act, 1990 (W.B. Act XVII of 1990) which deals with agreement or memorandum of an agreement relating to a sale or lease-cum-sale of immovable property, read with Explanation thereof providing that the expression “agreement or memorandum of an agreement”, if relating to a sale, shall include an agreement to sell or any memorandum or acknowledgement in relation to transfer or delivery of possession of immovable property with an intent to transfer right, interest in, or title to, such property at any future date, same duty is payable as Conveyance (No. 23) for a market value. Accordingly, there appears to be no infirmity with the order so far findings relating to the nature of document is concerned.
9. As regards second ground above, Section 36 of the Act prohibits re-opening of the question of admissibility of an instrument on the ground that it has not been duly stamped. In the aforesaid decision so cited by Mr. Roy Chowdhury it was held that where a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, 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. Once a document has been marked as an “exhibit” in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36 comes into operation. Once a document has been admitted in evidence, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order. In the case on hand, the document in question was marked exhibit with objection which leads to show that the objection as to admissibility on the ground that the instrument is not duly stamped has not been judicially determined, but it was merely postponed with tentatively marking it as an “exhibit”. In such circumstance, the said provision of Section 36, in my view, is not attracted. In this connection, the observation of the Apex Court in the subsequent decision reported in Ram Rattan v. Bajrang Lal, , may be reproduced :
“When the document was tendered in evidence by the plaintiff, objection having been raised by the defendants that the document was inadmissible in evidence as it was not duly stamped and for want of registration, it was obligatory upon the learned Trial Judge to apply his mind to the objection raised and to decide the objection in accordance with law. Tendency sometimes is to postpone the decision to avoid interruption in the process of recording evidence and, therefore, a very convenient device is resorted to, of marking the document in evidence subject to objection. This, however, would not mean that the objection as to admissibility on the ground that the instrument is not duly stamped is judicially decided; it is merely postponed, in such a situation at a later stage before the suit is finally disposed of it would none the less be obligatory upon the Court to decide the objection. If after applying mind to the rival contentions the Trial Court admits a document in evidence, Section 36 of the Stamp Act would come into play and such admission cannot be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. The Court, and of necessity it would be Trial Court before which the objection is taken about admissibility of document on the ground that it is not duly stamped, 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 and where a document has been inadvertently admitted without the Court applying its mind as to the question of admissibility, the instrument could not be said to have been admitted in evidence with a view to attracting Section 36. The endorsement made by the learned Trial Judge that ‘objected, allowed subject to objection’, clearly indicates that when the objection was raised it was not judicially determined and the document was merely tentatively marked and in such a situation Section 36 would not be attracted”.
10. Therefore, the above proposition enumerated in the decision in is qualified by the observation in the subsequent decision in as underlined above. Accordingly, the learned Court below was well within its jurisdiction to decide the matter relating to admissibility of the document and to pass the impugned order in the process.
11. Before parting with the record, it is worthwhile to point out that Section 36 is subject to the exceptions embodied in Section 61, Sub-section (2) of which empowers the Court of Appeal only and not any Civil, Revenue or Criminal Court in the exercise of its jurisdiction, to act thereunder, and so decision of the learned Court below on the subject may be treated as one not under Sub-section (2) of Section 61 as mentioned, but passed after hearing the objection relating to admissibility of the document.
12. With the background discussion, none of the above two contentions of Mr. Roy Chowdhury is sustainable.
13. In the premises, there being no material to interfere with the impugned order, the revisional application be dismissed ex parte.
14. The impugned order being No. 103 dated 29.01.2000 passed by the learned Court below in T.S. No. 124/1994 subject to the said observation, is hereby affirmed.
15. Let a copy of this order be sent down at once to the learned Court below.
16. Let urgent certified copy of this order, if applied for by the parties, be supplied expeditiously.