Tribhuan Ojha vs Ramchandra Dube

Varma, J

This case comes up in second appeal from a decision of the special Subordinate Judge of Singh-bhum, who dismissed the suit of the plaintiff by his judgment dated 14th August 1930. The plaintiff brought the suit for recovery of a sum of Rs. 2,001 with interest at 18 per cent per annum which is said to have been advanced to the defendant on, 1st Kartik 1333 Amli. The defendant denied the whole transaction and did not admit the debt; and further alleged that the suit was brought out of malice. The hand note that was produced in support of the plaintiff''s claim was not properly stamped, that is to say the stamp that was affixed to the hand note was only one anna and not four annas as it should have been. The trial Court did not admit this document in evidence, being of opinion that u/s 35, Stamp Act, it could not be taken in evidence. So far as that step is concerned, he acted quite properly, inasmuch as once a document is admitted under S. 36, Stamp Act, the admission cannot be questioned except as provided in S. 61 of the Act. But without admitting this document into evidence, he took the writing of the defendant and compared the two handwritings. Even then he came to the conclusion that the oral evidence that was produced on behalf of the, plaintiff was not satisfactory because evidently the oral evidence was so led as to bring the case within the purview of the decision reported in Sheikh Akbar v. Sheikh Khan, (1881) 7 Cal 256, He decreed the suit and the defendant went on appeal before the lower appellate Court and after a remand the case was finally disposed of by, the order dated 14th August 1930, which I have just now mentioned. The Subordinate Judge held that the hand note being insufficiently stamped was not admissible in evidence for any purpose whatsoever. He also held that he did not believe the evidence of the witnesses for the plaintiff regarding the passing of money and therefore he allowed the appeal and dismissed the suit of the plaintiff.

Mr. P.P. Das appearing on behalf of the plaintiff-appellant urged chiefly that although the hand note was not (admissible in evidence for the purpose of proving the loan it could he used for certain collateral purposes and in support of this part of his argument he relied mainly upon the case reported in Braja Mohan v. Lachmi 1920 Pat 50 = 1 P L T 719 = 58 I C 99 Braja Mohan v. Lachmi 1920 Pat 50 = 1 P L T 719 = 58 I C 99. He referred to the passage in the judgment of Mullick, j., at p. 726 which runs as follows:

... It has been held that, although a document is inadmissible for the purpose of proving a claim, it may be admissible for a collateral purpose, that is a purpose foreign and not subordinate to the purpose for which the document was executed.

Much stress was laid in the course of argument that although the document could not be used for the purpose of proving the debt, it could be used for the purpose of comparing the handwriting of the document for the purpose of supporting the witnesses who were examined on behalf of the plaintiff. But the passage relied upon itself contains the answer to this argument where Mullick, J., says as to what is meant by "collateral purpose." He uses the expression "collateral purpose" as equivalent to "foreign and not subordinate to the purpose, for which the document was executed." So it the document was inadmissible for the purpose of proving the debt in this case, it could not be used to support the statement of the plaintiff''s witnesses who come to prove the debt. Mr. Das incidentally referred to a case reported in Birehall v. Bullongh, (1896) 1 Q B 325 = 65 L J Q B 252 = 44 W R 300 = 74 L T 27 where a document which was not properly stamped and was not admitted in evidence was used by the counsel in cross-examining the debtor for the purpose of refreshing his memory and obtaining from him certain statements. Those statements supported the ease for the plaintiff; and although that document was not taken in evidence because it could not be taken in evidence, the admissions made by the defendant were relied upon by the Judge for deciding the case in favour of the plaintiff. But that case cannot be said to be an authority for the proposition that a document which is inadmissible in evidence can be indirectly used as a piece of evidence. Mere handing the document to a witness for the purpose of refreshing, his memory does not make the document a piece of evidence in the case. As again that Mr. Mukharji has drawn our attention to Fengl v. Fengl (1914) P D 274 = 84 L.J.P. 29 where it was laid down that a document which requires stamp, but is unstamped cannot be received in evidence except in criminal proceedings for any purpose whatever, including a collateral purpose. I would not have referred to these two cases, but for the stress that was laid upon the earlier case by the learned counsel appearing for the plaintiff because the case reported in Braja Mohan v. Lachmi 1920 Pat 50 = 1 P L T 719 = 58 I C 99, makes, clear the purpose for which unstamped or improperly stamped documents could be used. So there being no document to prove the transaction and the oral evidence having been disbelieved by the Courts below, the appellate Court has passed the only order that it could pass under the circumstances, i.e., dismiss the plaintiff''s suit.

I would therefore dismiss the appeal with costs.

Saunders, J.

I agree.