Susheela Verma And Anr vs Surendra Singh And Ors
2023 Latest Caselaw 5519 P&H

                                                    Neutral Citation No:=2023:PHHC:060443




                                                             2023:PHHC:060443

236           IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH

                                         CR-4662-2017
                                         Date of Decision :27.04.2023

Susheela Verma and another                                   ...Petitioners

              versus

Surendra Singh and others                                    ....Respondents


Coram :       Hon'ble Mr. Justice B.S. Walia


Present :     Mr. Kunal Dawar, Advocate and
              Mr. Mayank Aggarwal, Advocate for the petitioners.

              Mr. Dhirinder Chopra, Advocate for
              Mr. Baldev SinghBadhran, Advocate for the respondents.
                   ***

B.S. Walia, J. (Oral)

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

1 of 4

Neutral Citation No:=2023:PHHC:060443

CR-4662-2017 [2] 2023:PHHC:060443

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.

                               2 of 4

                                                    Neutral Citation No:=2023:PHHC:060443




CR-4662-2017                     [3]          2023:PHHC:060443

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 evidence without any objection in respect thereto in

accordance with Section 35 of the Act, such admission shall not be called in

question at any stage of the suit or proceedings on the ground that the

3 of 4

Neutral Citation No:=2023:PHHC:060443

CR-4662-2017 [4] 2023:PHHC:060443

instrument has not been duly stamped except under Section 61 of the Act.

Learned counsel contends that at best recourse could be had to Section 61 of

the Act, which provides for revision of decision of Court regarding the

insufficiency of the stamp duty but said option was not exercised, therefore

in the circumstances, the impugned order has altogether ignored the

provisions of Section 36 and 61 of the Act.

7. Learned counsel for the respondents concedes that the

impugned order is legally unsustainable in the absence of recourse having

been taken to the provisions of Section 61 of the Act, as once the documents

had been exhibited as Ex.P-3 and P-4 respectively, without any objection in

respect of the documents not being stamped having been taken by the

respondents-defendants, no subsequent objection could have been taken.

8. Accordingly, in view of the position noted above especially of

the documents already having been exhibited without any objection from the

respondents-defendants as also in view of the bar contained in Section 36 of

the Act and no recourse having been taken under Section 61 of the Act, the

instant revision petition is allowed and impugned order Annexure P/1 dated

23.01.2017, holding the documents Ex.P-3 and P-4 as not readable in

evidence, set aside.

                                                           (B.S. Walia)
                                                              Judge
27.04.2023
rajesh


                    Whether speaking/ reasoned        :      Yes/No
                    Whether reportable                :      Yes/No



                                                    Neutral Citation No:=2023:PHHC:060443

                                4 of 4