Proper stamping and cancellation of a promissory note and the inapplicability of Section 35 of the Stamp Act when the trial has to commence de novo.

Sundara Aiyar, J.

1. The question raised in this revision-petition is whether the lower Court was right in rejecting as inadmissible the promissory-note on which the suit was instituted. The note was executed outside British India but was endorsed over to the plaintiff in British India. It is quite clear under Section 3, Clause (b) of the Stamp Act, that the document required to be duly stamped. The District Munsif held it to be not duly stamped because the stamp was not cancelled in a manner that it could not be used again. The manner in which the stamp was cancelled in this case is stated by the Munsif thus: "some blue pencil lines are drawn over the stamp". The Munsif considered this not to be an, effective method of cancellation. I have looked at the stamp myself and I am unable to say that the District Munsif was wrong in holding that the stamp was not properly cancelled. It is not possible to lay down any general rule as to what mode of cancellation would be effective. The Legislature has abstained from doing so and perhaps it is as well that Judges should do the same. I have, however, no difficulty in holding, in the present case that the stamp has not been effectively cancelled.

2. The next question is whether under the provisions of Section 35 of the Stamp Act, the document should be regarded as having been admitted in evidence in consequence of which its admissibility could not be called in question again. The suit was at first tried ex parte, but the ex parte judgment was subsequently set aside. It was at the ex parte trial that the note was admitted in evidence. The question is whether the language of Section 36 where an instrument has been admitted in evidence is applicable to such a case. When the promissory note was put in at the second trial, the document did not remain as evidence. The whole ex parte proceedings had been set aside and the trial of the suit had to commence de novo. I am of opinion that Section 36 applies only to a case where what is in evidence is sought to be expunged by a party who objects that the evidence was wrongly admitted. But here the promissory-note had to be tendered in evidence again at the second trial as the previous proceedings proved abortive in law when they were set aside. Suppose a document not duly stamped was admitted in evidence against one person who was then the sole defendant in the suit, but other persons are subsequently made parties and the trial of the suit is de novo as against them, could it be held that those, who were not parties when the document was originally received in evidence, could not object to its admissibility? I think, not. As I have already stated, Section 36 really lays down a rule preventing only the exclusion of what already is in evidence in the proceedings. But if certain proceedings terminated and other proceedings recommence where the document would not be regarded as being in evidence already, I think the section has no application. Technically, no doubt, the suit is regarded as the same though the ex parte decree might be set aside. But in substance,, the proceedings are different when they recommence at the setting aside of the ex parte decree. I am of opinion, therefore, that this argument must also fail.

3. In the result, I dismiss the petition with costs.