Held, endorsement on the document under Order 13, Rule 4 conclusive.

The plaintiff is the appellant. The suit was on a pronote for Rs. 500, dated 16th June, 1946, executed by the defendant in favour of the plaintiff repayable on demand with interest at 9 per cent, per annum. The pronote in the case was admittedly torn where the stamps were alleged to have been affixed. The plaintiff’s case is that she entrusted the pronote to her brother for safe custody and when she looked at the pronote prior to the filing the suit, she found that a portion of the pronote bearing the signature of the defendant on the stamps was torn away. In the written statement of the defendant, his case was that the suit pronote was executed nominally and that at a settlement effected between the parties the pronote was discharged and the stamp was torn in the presence of the mediators, but was left with the defendant in connection with the settlement of the disputes with a third party. One of the issues framed in the suit was whether the suit was maintainable as the pronote did not bear the revenue stamps. The suit was filed on 10th November, 1947 and on 4th September, 1948, when evidence was taken the plaintiff examined her brother as P.W.1 who stated that the defendant signed on two one anna stamps which were affixed on the pronote. The defendant in his evidence stated that only one anna label was affixed. His evidence was supported by the attesting witness D. W. 2 who also stated that only one anna stamp had been affixed. The scribe was the plaintiff’s son and he was not examined. On this evidence and also on an examination of the torn portion of the pronote, the learned District Munsif found, accepting the evidence of the defence witnesses, that the pronote was insufficiently stamped and therefore cannot be used in evidence for any purpose whatsoever and dismissed the action. The plaintiff appealed and the appeal was dismissed. The plaintiff has preferred this second appeal and the respondent has not appeared and is unrepresented.

It is contended that the pronote was admitted under the provisions of Order 13, rule 4, Civil Procedure Code, on 19th November, 1947, when it was marked as Exhibit A-1 and that once it has been so admitted and marked as an exhibit its admissibility could not be reopened or questioned on the ground of the document not having been duly stamped having regard to the provisions of section 36 of the Stamp Act. Section 36 provides that:

“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.”

On the back of the pronote there is an endorsement that the document was produced on 10th November, 1947 and proved by P.W.1 on 4th September, 1948 and filed as Exhibit A-1 with the initials of the District Munsif. The marking of the document as Exhibit A-1 by means of this endorsement was relied upon to show that the pronote has been admitted in evidence as required under section 36 of the Stamp Act.

Reliance for this contention is placed on the decision of Anantakrishna Ayyar, J., reported in Alimane Sahiba v. Subbarayudu1. In that case the defendant admitted execution of the pronote but pleaded discharge. When the argument upon the question of discharge was proceeding the defendant discovered a legal objection to the maintainability of the suit on the ground that the stamp affixed to the note had not been cancelled as required under section 12 of the Stamp Act and that the promissory note should accordingly be treated as unstamped. The promissory note had been exhibited in evidence and marked as exhibit in the case with an endorsement similar to that which is found in the suit pronote. The learned Judge observed that when once this document has been admitted in evidence and marked as an exhibit, then having regard to the provisions of section 36 of the Indian Stamp Act, its admissibility could not be re-opened on the ground o