Civil Revision No. 5222 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 5222 of 2007 (O&M) Date of decision: 27.08.2009 Smt. Kailash Bhagat ....Petitioner Versus Shri Gulzari Lal ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Arun Palli, Sr. Advocate, with Mr. Jai Bhagwan, Advocate, for the petitioner. Mr. M.S. Sachdev, Advocate, for the respondent. ***** VINOD K. SHARMA, J (ORAL) This revision petition is directed against the order dated 10.8.2007, passed by the learned Additional Civil Judge (Senior Division), Jalandhar, vide which the application moved by the petitioner for leading secondary evidence stands declined. The plaintiff/petitioner filed a suit for specific performance of agreement to sell dated 18.6.1995, by taking a specific stand, that the original agreement was in possession of the plaintiff. Instead of filing the original agreement on record, the petitioner chose to file photocopy of the unstamped agreement. The petitioner thereafter made an attempt to amend the plaint by invoking the provisions of Order 6 Rule 17 of the Code of Civil Procedure, to take a stand therein, that during the Civil Revision No. 5222 of 2007 (O&M) -2- pendency of the suit, original agreement has been taken away by the respondent i.e. father of the petitioner, on the promise that he would execute a conveyance deed. The application for amendment was disallowed on 24.8.2006. Thereafter, an application was moved for leading secondary evidence, by taking the same plea, which was sought to be raised by way of amendment of the plaint. The learned trial Court has been pleased to dismiss the application by recording the following finding: - “I have heard the arguments and gone through the file carefully. As per the plea of the plaintiff, in plaint, plaintiff is in possession of agreement to sell. Even in the application it has been admitted that at the time of filing of the suit, agreement was with the plaintiff, but during the pendency of the suit, she has given the agreement to defendant as there was a talk of compromise between the parties. But in the application filed by the plaintiff directing the defendant to produce the original sale agreement dated 18.6.1995, the plaintiff has specifically pleaded that earlier it was in possession of the plaintiff, but subsequently, it was taken by the defendant from the applicant. At the time when the original agreement was taken over by the defendant from the plaintiff; at that time defendant had agreed to execute the sale deed in terms of the agreement referred above, but subsequently, the defendant backed out of the promise which necessitated the filing of the suit for specific performance. So as per this application, it has been pleaded by the plaintiff that the agreement to sell was taken by defendant prior to the filing of the suit on the pretext that he will execute the sale deed, but when the defendant backed out of his promise, Civil Revision No. 5222 of 2007 (O&M) -3- suit for specific performance was filed. So, this stand of the plaintiff is contradictory to the stand taken by the plaintiff in the application seeking permission to lead secondary evidence. As such loss of the original agreement to sell could not be proved by the plaintiff. As such plaintiff is not entitled to lead secondary evidence with regard to the agreement to sell dated 18.6.1995 and this application of the plaintiff is dismissed.” The learned counsel for the petitioner vehemently contends, that the order passed is outcome of misreading of pleadings of the parties. It is also the case of the petitioner, that for deciding an application for leading secondary evidence, the Court was not to go into the merits of the controversy, and was only to see whether the loss was proved or that the original was in possession of the opposite party, who failed to produce the same in spite of notice. However, this pre-requisite was also not complied with as the petitioner had failed to issue notice for production of the original. The contention of the learned counsel for the petitioner cannot be accepted. The reading of the plaint shows, that a specific stand was taken that the original was in possession of the petitioner, whereas in the application, it was pleaded that even prior to filing of the suit, the original had been taken away by the defendant/respondent. The finding of the learned trial Court cannot be said to be outcome of misreading of pleadings of the parties, as contended. As already observed above, the application was not competent for want of notice of production. Even otherwise, the Hon'ble Supreme Court in Jupudi Kesava Rao Vs. Pulavarthi Venkata Subbarao and others, AIR 1971 Supreme Court 1070, has been pleased to lay down as Civil Revision No. 5222 of 2007 (O&M) -4- under: - “13. The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped or insufficiently stamped. would be tantamount to the document being acted upon by the person having by law or authority to receive evidence. Proviso (a) is only applicable when the original instrument is actually before the court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document. Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by Section 63 of the Indian Evidence Act would not fulfil the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself. Section 35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document which is. an instrument for the purpose of Section 35. 'Instrument' is defined in Section 2(14) as including every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded. There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act. 14. If Section 35 only deals with original instruments and not copies Section 36 cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit. The words "an instrument" in Section 36 must have the same meaning as that in Section 35. The legislature only relented from the strict provisions of Civil Revision No. 5222 of 2007 (O&M) -5- Section 35 in cases where the original instrument was admitted in evidence without objection at the initial stage of a suit or proceeding. In other words, although the objection is based on the insufficiency of the stamp affixed to the document, a party who has a right to object to the reception of it must do so when the document is first tendered. Once the time for raising objection to the admission of the, documentary evidence is passed, no objection based on the same ground can be raised at a later stage. But this in no way extends the applicability of Section 36 to secondary evidence adduced or sought to be adduced in proof of the contents of a document which is unstamped or insufficiently stamped.” The view stands reiterated by the Hon'ble Supreme Court in Hariom Agrawal Vs. Prakash Chand Malviya, 2007(4) Indian Civil Cases 806. The Hon'ble Supreme Court in Smt. J. Yashoda Vs. Smt. K. Shobha Rani, 2007(1) Rent Control Reporter 466 was further pleased to hold, that the photocopy of the document cannot be proved by way of secondary evidence unless and until material is brought on record to show as to under what situation and circumstances that photocopy was prepared. The application is totally silent even in this regard. The order passed by the learned trial Court, therefore, is legal and does not call for any interference by this Court in exercise of revisional jurisdiction under Article 227 of the Constitution of India. No merit. Dismissed. (Vinod K. Sharma) August 27, 2009 Judge R.S.