( 1 ) DEFENDANT in OS. No. 93 of 1969. pending in the Court of the Munsiff of Buntwal, SK. is the petitioner in this revision petition. The suit is filed by the plaintiff for the recovery of amount due under a document executed by the defendant in favour of the plaintiff. A controversy arose as to whether the document was a promissory note or a bond as defined under the Stamp Act. The case of the plaintiff is that it is a promisssory note and that of the defendant is that it is a bond. Thel trial Court on a consideration of the relevant circumstances held that the document was a promissory note and beinff duly stamped as such ordered that it should be marked as exhibit. It is the correctness of this order that is challenged in this revision petition.

( 2 ) THE learned Counsel appearing for the respondent raised a preliminary objection that this revision petition should not be entertained as the decision given by the Court below is only regarding the admissibility of a document in evidence. The Court below in the present case has decided the question arising under the Stamp Act and when such a question 5s decided it has to be settled without delay in revision and cannot be kept for adjudication at a later stage. In Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655, it has been laid down as follows:"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, S. 36 comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or Revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction. "in view of this decision, when the Court passes an order, such order has to be challenged at that stage itself. If such steps are not taken, it cannot be taken at a later stage. In this view, the preliminary objection raised by the respondent's Counsel is overruled.

( 3 ) THE document which is under consideration is given below: the document is stamped and styled as a demand promissory note and there is an unconditional undertaking to pay and the amount is certain and the person to whom money is payable is certain.

( 4 ) SECTION 4 of the Negotiable Instruments Act, 1881, defines promissory note as follows: 4. Promissory note. A 'promissory note' is an instrument in writing (not being a bank-note or a currency-note) containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument. Therefore, the conditions laid down in S. 4 of the Negotiable Instruments act are that it has to be an instrument in writing, containing an unconditional undertaking to pay money to a person : these are all satisfied in the present case. The submission however is that there is omission of the word "to the order of" or "to the bearer" and that makes all the difference and so it is not a promissory note but a bond. S. 13 of the Negotiable instruments Act reads thus:"13. 'negotiable Instrument'. A 'negotiable instrument' means a promissory note, bill-of-exchange or cheque payable either to order or to bearer. Explanation (i) A promissory note, bill-of-exchange or cheque is payable to order which is expressed to be so payable or which is expressed to be payable to a particular person, and does not contain words prohibiting transfer or indicating an in

Click Here to Read the rest of this document