The court can go behind the order of admissibility of a document if the document was merely tentatively marked as an "exhibit" and the objection as to admissibility was not judicially determined.

( 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 civiljudge (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. 1,75,0007- 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 platntiff/o. P. No.-4 which was marked 'exhibit* after objection. O. P. Nos. 1 to 3 were subsequently added asdefendants. O. P. Nos. 1 and 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 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 reported in AIR 1961 SC 1655 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 'sikritipatra1 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. 1,20,0007- 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 petitionerwill 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 pur'e and simple. So, in view of item (d) of Article 5 of Schedule 1a 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 relati