1. This revision petition is filed by the plaintiff in a suit for recovery of money. The suit document dated 31.1.2007, according to the petitioner, is only an agreement. In the written statement the defendant contended that it is a bond and since it is insufficiently stamped it is inadmissible in evidence. No specific issue was raised at that time regarding the admissibility of the said document. During trial affidavit was filed by the plaintiff in lieu of chief-examination. It is submitted by the learned counsel for the petitioner that before starting cross-examination no objection was raised by the defendant regarding the admissibility of the said document. It was marked as Ext.A1. Questions were also put to the plaintiff in cross-examination touching upon Ext.A1. After the evidence was closed the case was argued by both sides and was posted for judgment.

2. The petitioner contends that the learned Munsiff suomotu reopened the case and passed the impugned order impounding Ext.A1. The Court below came to the conclusion that though the document is styled as agreement the recitals would show that it is actually a bond. Learned counsel would submit that the Court below was not justified in passing the impugned order since Ext.A1 was marked and admitted in evidence without any objection from the side of the defendants.

3. S.36 of the Indian Stamp Act reads as follows.

"Where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped."

There is no dispute that Ext.A1 is not a document, the admissibility of which can be questioned under S.61 of the Indian Stamp Act. It was held by the Hon'ble Supreme Court in AIR 1961 SC 1655(Javer Chand v. Pukhraj Surana) that;

"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."

4. Learned counsel for the petitioner would submit that in the light of the authoritative pronouncement of the four Judges Bench of the Hon'ble Supreme Court the Court below was not justified in passing the impugned order. There was no case for the respondent that before marking Ext.A1 any objection was raised as to the admissibility of Ext.A1. Since the affidavit was filed in lieu of chief-examination, through which documents were sought to be received in evidence, before starting cross examination the trial court has to record that an affidavit has been filed in lieu of chief examination and that such and such documents have been marked. It is not to be done mechanically. The Court has to apply its mind while marking the documents to ensure that those documents have been properly admitted in evidence. Simply because the counsel appearing for the other side did not raise any objection the Court is not absolved of its duty to see whether the marking of the documents was done correctly and whether any inadmissible document was sought to be admitted in evidence. If the Court finds that any inadmissible document, especially a document which cannot be admitted in evidence as it is unstamped or insufficiently stamped, is sought to be admitted, it should be brought to the notice of the counsel appearing for the parties and an order should be passed with regard to the same. It is not a case where the documents were tentatively marked, subject to objection regarding the admissibility and the ruling as to the admissibility of the same happened to be deferred, as it warranted a detailed argument. The Apex Court i