An appellate court has the power to examine the real nature of a document and admit it in evidence upon payment of proper stamp duty and penalty, even if the trial court had rejected it as inadmissible.

P.K. Tare, J.

1. This is defendant's appeal against the decree, dated 29-10-1958, passed by Shri D. P. Tiwari, First Additional District Judge, Raipur, in Civil Appeal No. 34-B of 1956, reversing the decree, passed by Shri B. P. Shriwas, Civil Judge, Dhamtari, in Civil Suit No. 13-B of 1955, dated 21-9-1956.

2. The respondent filed a suit for recovery of Rs. 3,500 inclusive of interest, alleging that an account was made of the previous dealings between the parties, when a sum of Rs. 3,000 was found due on 19-3-1952, in lieu of which the defendant executed a receipt of the same date, admitting the amount due on the loan. The defendant also promised to pay the said sum of Rs. 3,000 with interest at the rate of Re 1 per cent per month by 7-6-1952. The plaintiff had served registered notices, the last of which was dated 17-2-1955, which was refused by the defendant. Therefore, the plaintiff claimed a decree for the principal amount with interest.

3. The appellant's defence was that no accounts had been made on 19-3-1952. He denied the receipt, dated 19-3-1952 and alleged that he had never promised to pay the amount with interest. He further alleged that there had been a civil suit between him and others on the one hand, and Mst. Rambati and Mst. Kalavati on the other hand in the year 1944, which was ultimately taken up to the High Court. The plaintiff had advanced some amount to the defendant for fighting out the said litigation. He admitted that some amount was due towards those advances. But, the plaintiff fraudulently got the document, dated 19-3-1952, executed by the defendant. It was further alleged that the deed, dated 19-3-1952 was a promissory-note, and as it was unstamped, it was inadmissible in evidence.

4. The learned Judge of the trial Court, by order, dated 7-11-1955 had given a finding that the deed, dated 19-3-1952, was a promissory-note. As such it was not required to be impounded, as it was not an agreement, as was alleged by the plaintiff. The promissory-note could not at all to be validated by payment of the requisite stamp duty and penalty. Therefore, the deed could not be admissible in evidence at all for any purpose, whatsoever.

5. The learned Judge of the trial Court, by Judgment, dated 21-9-1956, dismissed the plaintiff's suit on the sole ground that the deed, dated, 19-3-1952. was a promissory note, which was inadmissible in evidence for any purpose, whatsoever. On all other points, the learned Judge negatived the defence and upheld the plaintiff's contentions regarding settlement of accounts and the sum of Rs. 3,000 being due on 19-3-1952. The learned Judge further held that the defendant had made repayment of Rs. 700 and that the deed, dated 19-3-1952 was not got executed by "practising any fraud. Further the learned trial Judge held that as the deed, dated 19-3-1952, was a promissory note, the same being inadmissible in evidence, the plaintiff could rely on the oral loan. But, his suit was dismissed, as it was held that he had failed to establish an oral loan.

6. Upon an appeal by the plaintiff, the learned appellate Judge came to the conclusion that the deed, dated 19-3-1952 was not a promissory note, but, it was an acknowledgment, accompanied by a promise to pay under section 25, sub-section 3 of the Contract Act. Therefore, the learned Judge validated the deed by impounding it as an agreement. The learned appellate Judge relied on a Division Bench of this Court consisting of Grille, C.J; and Hidayatullah, J. ( as he then was ) in Tulstram vs. Zaboo ILR 1948 Nag 639. In that view of the case, the decree of the trial Court was reversed and the plaintiff's suit was decreed.

7. The question that arises for consideration in the present appeal is whether the deed, dated 19-3-1952, is a promissory-note or is an acknowledgment accompanied by a promise to pay under Section 25, sub-section 3 of the Contract Act and whether the first appellate Court and also this Court can go behind the finding of the trial Ju