S.K. MAL LODHA, J.—Respondent No. 1 (Plaintiff-non-petitioner No. 1) instituted a suit for redemption of mortgage dated April 14, 1954. The suit was filed against the legal representatives of the deceased mortgagee Ratanlal. The appellants (Defendant petitioners) are sons of Ratanlal. The suit was contested by the defendants (petitioners). Their case was that they had undertaken the repairs with the concurrence of the plaintiff-mortgagor in the years 1958,1961,1965 and 1971. They obtained receipts for the amounts spent by them on repairs from the plaintiff-non-petitioner No. 1. These receipts were filed alongwith the written statement and the amount involved is Rs. 5500/-. The receipts produced by the defendant-petitioners were unstamped. The learned Civil Judge, Jodhpur, by his order dated November 12, 1980, held that by virtue of s. 35 of the Stamp Act as existed then, these receipts cannot be admitted in evidence The defendant-petitioners filed a writ petition under Arts. 226 and 227 of the Constitution of India seeking to quash the order dated November 12, 1980 of the learned Civil Judge, Jodhpur. During the course of hearing of the writ petition, a preliminary objection was raised by the learned counsel for the plaintiff-non-petitioner No. 1 that the writ petition is not maintainable against the order dated November 12, 1980 by which the learned Civil Judge held that the four receipts are inadmissible in evidence. The learned single Judge upheld the preliminary objection and dismissed the writ petition as not maintainable. Hence this special appeal under s. 18 of the Rajasthan High Court Ordinance.

2. Mr. M.R. Singhvi has appeared on behalf of respondent No. 1 Bhairoon Dutta (Caveator).

3. We have heard Mr. M.D. Calla for the appellants and Mr. M.R. Singhvi for respondent No. 1.

4. Mr. M.D. Calla, on the basis of the decision reported in Firm Poonam Nahta vs. Amarchand (l) contended before us that the learned single judge was not right in declining to entertain the writ prtition, for the writ petition was maintainable against the order dated November 12, 1980. On the other hand, Mr. Singhvi learned counsel for respondent No. 1 submitted that the order of the learned single judge cannot be assailed in view of Motilal vs. District Judge, Pali (2) and Shiv Shanker vs. Civil Judge, Pratabgarh (2).

5. A full Bench of this Court in Harakchand vs. The State of Rajasthan (4) held that whether a particular evidence was admissible according to law or not is a question of law which the trial court was entitled 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. In Shah Prabhudas Ishwardas vs. Shah Bhogilal Nathalal (5), it was held that error of law by the subordinate court in deciding whether a document was a promissory note within the meaning of s. 2(22) of the Stamp Act or not was not concerned with the jurisdiction of the subordinate court and, therefore, none of three clauses of s. 115 C.P.C. were attracted to the case. The full Bench in Harak Chands case (4) followed Shah Prabudass case (5). It is clear from the Full Bench decision that the construction of a document is a question of law but that by itself does not mean that in construing a document as having particular import, the court construing it acts with illegality or material irregularity in exercise of its jurisdiction.

6. S. 105. C.P.C. provides that every order whether appealable or not except an order of remand can be attacked in an appeal from the final decree on the ground: (1) that there is an error, defect or irregularity in the order; and (2) that such error, defect or irregularity affects the decision of the case. In ts that an interlocutory order which has not been appealed no appeal lay or because even through an appeal lay, an n, can be challenged in an appeal from the final decree or it affects or is likely to affect the decision of the cas

Click Here to Read the rest of this document