JUDGMENT
K.C. Gupta, J.
1. This appeal is directed by the defendant against the judgment and decree dated 12.9.1980 passed by the Additional District Judge, Kurukshetra, whereby he accepted the appeal or the respondent (plaintiff) and set-aside the judgment and decree dated 16.11.1979 passed by the Sub Judge IInd Class, Kaithal, and decreed the suit for the recovery of Rs. 9,900/- with costs throughout and interest pendente lite and also future interest from the date of suit till realisation of the amount at the rate of 12% per annum.
2. Briefly stated, the facts are that the appellant (defendant) borrowed Rs. 8,000/- from the respondent (plaintiff) on 5.2.1973 and promised to return the amount with interest @ 1% per month. He executed pronote and receipt in favour of the respondent in lieu of having received the amount. However, he did not pay the amount. So, the respondent filed the suit for recovery of the amount.
3. The appellant contested the suit. He denied the allegations of the respondent and stated that he did not borrow any amount from the respondent. He further stated that about 9-10 years ago, he had borrowed Rs. 800/- from the respondent, which he had returned and at that time the respondent had obtained his thumb impressions on some papers, which he might have later on converted into pronote and receipt. He also pleaded that he had enmity with Tulsa Singh. scribe of the alleged pronote and receipt and Amin Lal, attesting witness of the receipt.
4. On the pleadings of the parties, the following issues
were struck on 12.4.1978:-
“1. Whether the defendant borrowed a sum of Rs. 8,000/- from the plaintiff on interest on 5.2.73 and executed a pronote and receipt in his favour ? OPP
2. Whether the defendant borrowed Rs. 800/- from the plaintiff about 9/10 years ago and the plaintiff obtained the thumb-impressions on some papers and the impugned pronote and receipt are forged, false and fictitious and without consideration, as alleged? OPD
3. Whether the suit is barred by time ? OPD
4. Whether the suit is not maintainable as alleged ? OPD
5. Whether the defendant is entitled to special costs? OPD
6. Relief.”
5. The parties adduced their evidence.
6. After hearing counsel for the parties, the then Sub Judge, Kaithal, vide his judgment dated 16.11.1979, dismissed the suit of the respondent of the recovery of the amount by holding under Issue No. 1 that the pronote, Ex. P1, could not be read into evidence as it was insufficiently stamped. Issues No. 2, 3, 4 and 5 were decided against the appellant.
7. Aggrieved by the said judgment and decree, the plaintiff filed the appeal which was heard by the Additional District Judge, Kurukshetra. He, vide judgment dated 12.9.1980, accepted the appeal and decreed the suit by holding under Issue No, 1 that the pronote, Ex. P.1, had been duly proved and as such the appellant was liable to pay the amount.
8. Aggrieved by the said judgment and decree, the defendant has filed the present appeal.
9. I have heard counsel for the appellant, Mr. B.D. Sharma, counsel for the respondent. Mr. C.B. Kaushik and carefully gone through the file.
10. Counsel for the appellant contended that the pronote, Ex. P1, dated 5.2.1973 was insufficiently stamped as stamp of 10 paise bearing the inscription “refugee relief has not been affixed on the pronote as was required to be affixed according to the Stamp and Excise Duties (Amendment) Act, 1971, which came into force from 15.11.1971. He further contended that the lower appellate Court had wrongly admitted the pronote in evidence by holding that it was sufficiently stamped and as such his finding was based on surmises and conjectures. For this contention, he placed reliance on authorities Jatindra Moha Deb Laska v. Khara Singh and others, A.I.R. 1964 Assam 138 and Gulam Mohd. Lanrao and others v. Hain Ullah, A.I.R. 1975 Jammu and Kashmir 127. There is no dispute about it that in these authorities it was held that if the pronote is insufficiently stamped, then it cannot be read into evidence. On the other hand, counsel for the respondent contended that the appellant had not taken objection regarding the pronote being insufficiently stamped in the written statement or at the time when it was admitted into evidence and was marked as Ex.P1 in the Statement of PW.1 (respondent), he was estopped from taking this objection. For this contention, he placed reliance on the authority of the Hon’ble Supreme Court; Javer Chand and others v. Pukhraj Surana, AIR 1961 Supreme Court 1655, in which it was held that if a document was once admitted in evidence in the trial Court without any objection at the first instance, then it cannot be ruled out of evidence. Relying upon the said authority, Kamataka High Court in Devendrappa Bassawantappa Neeralkatti v. Kallayya Basalinagayya, AIR 1979 Karnataka 21, held that once it is admitted in evidence without any objection, then it cannot be ruled out of evidence. Of course, the authority of Assam High Court stated above supported the view of the learned counsel for the appellant but it cannot be taken into consideration in view of the authority of the Supreme Court, Javer Chand and others v. Pukhraj Surana (supra), that once a document has been marked as an exhibit in a case and has been used by the parties in examination and cross-examination of the witnesses then Section 36 of the Stamp Act comes into operation and it cannot be excluded.
11. Therefore, I hold that the pronote Ex. P1 is admissible in evidence, even though, it was insufficiently stamped, for the simple reason that it was admitted in evidence of the respondent without any objection from the side of the appellant and it was used by the appellant for the purpose of cross- examination.
12. No other point has been urged before me.
13. The up-shot of the above discussion is that the appeal fails and the same is dismissed with costs.
14. Appeal dismissed.
