C. N. ASWATHANARAYANA RAO, J.

( 1 ) THIS is a defendants' revision petition against an order dated 18-2-1995 passed on LA. No. XII in O. S. No. 10234 of 1983 on the file of the Court of the X Additional City Civil Judge, Mayo Hall, bangalore.

( 2 ) AFTER hearing the learned Counsel for the parties on admission, since I find that the matter can be finally disposed off at this stage itself, it is taken up for final orders.

( 3 ) THE 1st respondent/plaintiff filed the suit in O. S. No. 10234 of 1983 against the petitioners/defendants 1 and 2 and respondents 3 to 5 who were defendants 3 to 5 respectively for the relief of specific performance of an agreement to sell. The defendants resisted the suit. During the course of the recording of the deposition of the plaintiff, the plaintiff tendered a letter dated 4-11-1980 to be marked in evidence. It was not a stamped document. It was marked as Ex. P-1. The case was adjourned for cross-examination. At that juncture, the defendants 1 and 2 filed the application I. A. No. XII under Section 34 of the Karnataka stamp Act, 1957 (hereinafterwards referred to as 'the Act') read with Section 151 of the Code of Civil Procedure praying : (I) to determine the duty and penalty payable in respect of Ex. P-1 ; (II) to order that unless the duty and penalty is paid on ex. P-l, no further evidence can be recorded; and (III) to order that Ex. P-l cannot be acted upon for any purpose :the plaintiff opposed the application. After hearing the learned Counsel for both the parties, the learned trial Judge, by the order dated 18-2-1995 rejected the application. Being aggrieved by the said order, the defendants 1 and 2 have filed this revision petition.

( 4 ) I have heard Sri Kumar, the learned Counsel for the petitioner and Sri Ashok B. Patil, the learned Counsel for the 1st respondent and have perused the records. Notices to other respondents have been dispensed with (vide order sheet dated 6-6-1995 ).

( 5 ) THE learned Counsel for the petitioners has made available a copy of the application I. A. No. XII and the affidavit filed with it and the objection filed to that application. In the affidavit of the 1st defendant filed with LA. No. XII, she has stated that Ex. P-l could not have been marked as an exhibit since it is not stamped. She has stated that when the evidence of P. W. 1 was recorded, her Senior Counsel could not be present and a junior colleague of his, a new entrant to the Bar, was present, he did not raise any objection and taking advantage of that situation, the plaintiff has got the document marked as an exhibit. The plaintiff has objected to the application contending that the defendants having failed to bring the Senior Counsel on the date of evidence, now cannot put an uncharitable blame on the plaintiff. After hearing the learned Counsel for the parties, the learned trial Judge took the view that it was for the defendants to have been vigilant and to have objected to the marking of the document and when once the document is admitted in evidence, its admissibility cannot be questioned at a subsequent stage. Therefore he dismissed the application.

( 6 ) THE learned Counsel for the 1st respondent, supporting the impugned order, urged two contentions. Firstly he contended that the revision petition is not maintainable under law. Secondly he supported the view of the Trial Court that the question of admissibility of the document Ex, P- 1 cannot be reopened now.

( 7 ) WITH regard to the first contention, the learned Counsel for the 1st respondent relied upon two decisions. In N. S. Lakshmaiah Setty v R. Govindappa and Another , it is held as follows :"where a document has in fact and in law had been admitted in evidence, Section 35 of Mysore Stamp Act comes into operation and it is no longer open to the original court to act under the proviso to Section 34 and levy duty and penalty. The Court which could act suo motu under Section 58 is not the Court to which appeals or references under the sta

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