Once an instrument is admitted in evidence without objection, it cannot subsequently be held to be inadmissible on the ground of being insufficiently stamped, as per Section 36 of the Indian Stamp Act.

B.S. WALIA, J.

1. Prayer in the petition under Article 227 of the Constitution of India is for setting aside order Annexure P/1 dated 23.01.2017, passed by the learned Civil Judge (Junior Division), Gurugram, accepting the application under Section 35 of the Indian Stamp Act, 1899 (for short ‘the Act’), moved by the respondents-plaintiffs, for impounding documents Ex.P-3 and P-4 i.e. Special Power of Attorneys executed by the petitioners for the purpose of filing the suit.

2. Learned counsel for the petitioners relies upon the decision of Hon’ble the Supreme Court in Sirikonda Madhava Rao vs. N. Hemalatha and others 2022 (6) ALT 128 as also Shyamal Kumar Roy vs. Sushil Kumar Agarwal 2006 (11) SCC 331, to contend that once an instrument even though insufficiently stamped, is admitted in evidence and marked as exhibit, without any objection in respect thereto by the opposite party, the same cannot subsequently be held to be inadmissible in evidence on the ground of being insufficiently stamped. Relevant extract of the decision in Sirikonda’s case (supra) is reproduced as under:-

“In view of the aforesaid position, we do not think that the impugned judgment passed by the High Court directing that the aforesaid document should be de-marked and not be treated as an exhibit, is correct and in accordance with law. Once a document has been admitted in evidence, such admission cannot be called in question at any stage of the suit or proceedings on the ground that the instrument has not been duly stamped. Objection as to admissibility of a document on the ground of sufficiency of stamp, has to raised when the document is tendered in evidence. Thereafter, it is not open to the parties, or even the court to re-examine the order or issue. To this extent, the impugned judgment is set aside and the appeal is allowed.”

3. A perusal of the impugned order reveals that petitioner No.1 appeared as PW-1 and tendered affidavit in her evidence and exhibited power of attorneys as Ex.P-3 and P-4 respectively without any objection by the respondents. Subsequently, an application was moved by the respondents-defendants stating that the power of attorneys were not properly stamped as per the Act, therefore, the documents could not be taken on record without complying with the mandate of Sections 33 and 35 of the Act therefore the documents were liable to be impounded and sent to the appropriate authority for fixation of requisite stamp duty with penalty.

4. Learned trial Court by relying upon the decision of Hon’ble the Supreme Court in Yellapu Uma Maheshwar and another vs. Buddha Jagdeshwararao and others 2015 (4) CCC 578 (SC), held that the special power of attorneys had not been stamped as per the requirement of the Act, therefore, were required to be dealt with under Section 33 and 35 of the Act and that while Section 33 of the Act provided for impounding the document which was not duly stamped and Section 35 of the Act stipulated that such instrument was not admissible in evidence, on said reasoning held that since the documents Ex.P-3 and P-4 were not stamped at all, the same could not be read into evidence on behalf of the petitioners-plaintiffs.

5. Learned counsel contends that the documents Ex.P-3 and P-4 had been exhibited by the petitioners-plaintiffs without any objection in respect thereto of the same being insufficiently/not being stamped and that in the circumstances, in view of the bar contained in Section 36 of the Act, the objection raised by the respondents-defendants was legally unsustainable. Section 36 of the Act, is reproduced as under:-

Section 36 in The Indian Stamp Act, 1899

36. Admission of instrument where not to be questioned.—

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 duly stamped.

6. A perusal of Section 36 reveals that where an instrument has been admitted in