A document that is primarily intended as a receipt of consideration with an agreement to repay the same by a fixed date and not later, and not as a negotiable instrument, is not a promissory note and is admissible in evidence on payment of penal stamp duty.

R. BALIA, J.

( 1 ) THESE two revision petitions arise in the identical facts and circumstances giving rise to common issue. Hence they are decided by a common Order.

( 2 ) ONE Kundanmal, who is petitioner in both the revisions filed two Civil Suits. Civil Suit No. 55/90 against Nand Kishore and Civil Suit No. 56/90 against Asha Ram. Plaintiff and defendants are real brothers. Each Suit is for recovery of Rs. 15,000. 00 based on identical pleadings.

( 3 ) THESE two revision petitions are directed against the orders dated 9/09/1992 passed by the Additional District Judge No. 2, Jodhpur in Civil Suits Nos. 55/ 90 and 56/90 by which the applications of the plaintiff-petitioner seeking permission to lead secondary evidence, in respect of a document executed by respective defendants in each case on 9/04/1987 and alleged to be in possession of the defendant or has been destroyed by him was rejected.

( 4 ) THE trial Court rejected the application of the plaintiff-petitioner on the ground that the alleged document properly constituted makes it as promissory note and that being insufficiently stamped is not admissible in the evidence under S. 35 of the Stamp Act and further held that since primary evidence itself was inadmissible, no secondary evidence in that regard can be permitted to be led.

( 5 ) A preliminary objection was raised by the learned counsel for the defendant-respondent that revision petition is not maintainable. His contention was that particular evidence was admissible according to law or not is a question which the trial court had jurisdiction to decide and if any error has been committed in deciding that question, it cannot be said that such error was in any way an error in the manner of exercise of jurisdiction. Therefore, according to the learned counsel, the decision on the point that a document in question was inadmissible being a promissory note is not revisable under S. 115 of the Code of Civil Procedure (for short hereinafter to be referred as the Code ). He placed reliance on Harak Chand v. State of Rajasthan, 1970 Raj LW 320, a Full Bench decision of this Court.

( 6 ) IT is true that in the aforesaid Full Bench decision of this Court it has been laid down that such erroneous decision does not amount to be an error in the manner of exercise of jurisdiction.

( 7 ) HOWEVER, the same principle cannot be extended to a case where such decision is challenged as ancillary decision affecting the ultimate decision based on such erroneous finding. It is one thing to say that court, has wrongly refused to admit certain evidence rightly or wrongly and it is quite another thing to say that ultimate decision arrived by the court is vitiated because of the reason that in arriving at such decision, the court has relied on or founded its ultimate decision on erroneous decision about admissibility of a document. In the latter case it is the manner for arriving at a final decision under challenge and if the manner in which final decision has been arrived is erroneous, that will be an error in the manner of exercise of jurisdiction.

( 8 ) IN Shaik Jaffar Shaikh Mahmood v. Mohd. Pasha Hakkani Saheb, AIR 1975 SC 794, their Lordships of the Supreme Court while analysing the revisional power of the High Court under S. 26 (c) of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954, observed as under"the High Court under S. 26 (c) has to see whether there is any error of jurisdiction committed by the Controller or by the appellate authority in passing the order or whether there is any such manifest error of procedure committed by the courts as may affect the ultimate decision resulting in gross injustice. "

( 9 ) THE Supreme Court was interpreting the meaning of term "acted illegally" or "with material irregularity" used in the Hyderabad Act, which is similar to the terms used in S. 115 of the Code laying down the revisional jurisdiction of the High Court under the Code.

( 10 ) IN the like circumstances in