1 S.B. CIVIL WRIT PETITION NO. 2344/2006 Kunana Ram Vs. Civil Judge (Sr.Division), Parbatsar & ors. Date of Order :: 16th May 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.G.R.Punia for the petitioner Mr.C.R.Jakhar for the respondents ... BY THE COURT: Having heard learned counsel for the petitioner and having perused the material placed on record, this Court is unable to find any illegality or error on the part of the learned Trial Court in rejecting the application seeking permission to lead secondary evidence as moved by the plaintiff-petitioner. The plaintiff-petitioner has filed the present suit for specific performance on 28.05.1999. Permission to lead secondary evidence was sought by the petitioner by way of the application dated 09.09.2005 (Annex.6) asserting that original of the agreement in question was snatched away from him by Hanuman Ram, Bodu Ram and other persons and in that relation an FIR bearing No.63/1999 was lodged with Police Station, Kuchman City whereupon challan has been filed and Case No.89/2004 is pending. It was submitted that the original document bearing date 15.08.1998 has either been destroyed or might be in possession of defendants Nos.1 2 to 3 but, for the plaintiff being not in possession of its original, he may be permitted to lead secondary evidence. The learned Trial Court by its impugned order dated 22.02.2006 (Annex.8) has proceeded to reject the prayer so made by the petitioner to lead secondary evidence, inter alia, on the following considerations:- (i) that the suit was filed on 28.05.1999 whereas the said FIR was lodged on 31.05.1999; and there was no reason as to why original of the document was not filed with the plaint and as to why the photostat produced before the Court was not compared with the original; (ii) that on 11.09.2001, the defendants moved an application under Order XI Rule 14 CPC seeking directions against the plaintiff for production of the said document for the purpose of their filing of written statement but the said application was not pressed because, according to the order- sheet dated 15.04.2002, a copy of the agreement was supplied by counsel for the plaintiff to the counsel for the defendants; however, the original was not filed at that stage nor was it stated that original was not in power and possession of the plaintiff and had rather been snatched away by the defendants or their allies; (iii) that the plaintiff seeks permission to lead secondary evidence in relation to an unregistered and unstamped document relating to an agreement to sell immoveable 3 property that carries a serious question on its admissibility in evidence; (iv) that photostat of the document in question states about two attesting witnesses, Ratna Ram and Dhanna Ram, who have been examined in this suit as PW-1 and PW-2 respectively and both of them stated in cross-examination that they were not aware if it were a forged document; (v) that the challan filed on the aforesaid FIR shows that no offence has been stated in relation to stealing of, or snatching away, a document. Seeking to assail the order aforesaid refusing the permission to lead secondary evidence, the plaintiff has preferred this writ petition and it has strenuously been argued by the learned counsel Mr.G.R.Punia appearing for the plaintiff-petitioner that genuineness of the document could not have been questioned by the learned Trial Court at the time of considering the prayer for permission to lead secondary evidence; that the petitioner, only after producing the document in evidence, would be in a position to prove the signatures/thumb impressions of the executants and ultimate appreciation of the document has to be made at the time of final hearing but permission to lead secondary evidence could not have been refused particularly when the petitioner pointed out that the document had been snatched away and an FIR was also lodged in that relation. According to the learned 4 counsel, merely because the challan filed by the investigating agency does not state about any offence relating to snatching or stealing of the document, happening of the incident is not ruled out. Learned counsel further submitted that the suit is based on the said document and the petitioner would suffer serious and irreparable injury if the document were not permitted to be proved by way of secondary evidence. Learned counsel has referred to and relied upon the decision of the Hon'ble Supreme Court in the case of State Vs. Navjot Sandhu @ Afsan Guru: 2005 (2) WLC (SC) Criminal 314 and the decisions of this Court in the cases of Dhan Raj Vs. Jawant Raj & anr.: 2003 WLN (UC) 47 and Dhanraj Pawan Kumar Vs. M/s.Ramrakh Ghanshyamji: 1990 (2) RLW 113. The submissions as made on behalf of the petitioner remain fundamentally devoid of force and cannot be accepted. Broadly speaking, none of the grounds wherefor the learned Trial Court has refused permission to lead secondary evidence could be said to be invalid or unjustified. Seeking permission to lead secondary evidence, the petitioner suggested original of the document in question to have either been destroyed or being in possession of the defendants. To obtain such permission, it was obviously required of the petitioner to establish the existence of the document in question and its admissibility in evidence. In the very first place, noticeable it is that there is 5 nothing on record to find if the petitioner has filed the suit on the basis of original of the alleged document. As noticed by the learned Trial Court, the FIR relied upon by the petitioner was lodged on 31.05.1999 whereas the suit in question was filed on 28.05.1999. With the plaint, the plaintiff-petitioner could have produced the original of the document before the Court or at least could have got the alleged photostat compared with the alleged original. It cannot be said that if at all the original was there, it were not relating to the default or negligence on the part of the petitioner that the same cannot be produced. The fact noticed by the learned Trial Court about uncertain nature of depositions of the alleged attesting witnesses further puts a serious question mark on the existence of the document. From the material as available on record of this suit and in the surrounding circumstances, the learned Trial Court was satisfied that the ingredients of Section 65 of the Evidence Act were not established so as to permit leading of secondary evidence; and there appears no illegality in the approach of the Trial Court. Moreover, even if the aforesaid omission on the part of the petitioner to produce or at least show the original at the time of presentation of plaint is left aside; and even if uncertain deposition of alleged attesting witnesses is also ignored; and even when the other aspect that the challan as filed on the basis of FIR lodged by the petitioner does not relate to the 6 offences for stealing or snatching the document is not given much of the importance; and further, even if the omission on the part of plaintiff to state direct and specific facts in response to the application dated 11.09.2001 as moved by the defendants under Order XI Rule 14 CPC is also not given much of the emphasis, the fundamental fact remains that the document in question was admittedly an unstamped one. Upon query of the Court, learned counsel for the petitioner candidly submitted that at the relevant time, stamp duty was payable on the document relating to the agreement to sell immoveable property. Even when the question of registration is left aside, no permission to lead secondary evidence in relation to the document in question could have been given in this case for the crucial reason that the document was admittedly an unstamped one. A document that is chargeable with stamp duty and does not bear such stamp duty, the deficiency of stamp duty cannot be filled up on the copy of the document and, therefore, permission to lead secondary evidence cannot be granted. The Hon'ble Supreme Court in the case of State of Bihar Vs. M/s. Karam Chand Thapar & Brothers Ltd.: AIR 1962 SC 110 pointed out that the law remained well-settled that a copy of instrument cannot be validated while quoting with approval the principle stated in the case of Rajah of Bobbili Vs. Inuganti China Sitaramasami Garu: 26 Ind App 262 that: 7 ''The provisions of this section (section 35) which allow a document to be admitted in evidence on payment of penalty, have no application when the original document, which was unstamped or was insufficiently stamped, has not been produced; and, accordingly, secondary evidence of its contents cannot be given....'' Further, in the case of Jupudi Kesava Rao Vs. Pulavarthi Venkata Subbarao and others: AIR 1971 SC 1070, the Hon'ble Supreme Court has been pleased to expound the relevant principles in no uncertain terms thus: “13. The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duty 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 8 have the same meaning as that in Section 35. The legislature only relented from the strict provisions of 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 sec. 36 to secondary evidence adduced or sought to be adduced in proof of the contents of a document which is unstamped or insufficiently stamped. 15. The above is our view on the question of admissibility of secondary evidence of a document which is unstamped or insufficiently stamped, as if the matter were res integra. It may be noted however that the course of decisions in India in the Indian High Courts, barring one or two exceptions, have consistently taken the same view.” (underlining supplied for emphasis) The document being admittedly the one chargeable with stamp duty and being an unstamped one, its secondary evidence could not have been permitted. Though the learned Trial Court only indicated that such aspect gives rise to a question on admissibility of the document but this Court is clearly of opinion that on this count alone, the prayer to lead secondary evidence was required to be refused even if other aspects of the matter were not gone into. The decisions as relied upon by learned counsel for the petitioner have no application to the fact situation of the present case because in none of such cases existence of 9 original was in doubt and then, question of admissibility did not arise. The decision of Hon'ble Supreme Court in Navjot Sandhu @ Afsan Guru (supra), with respect, has not even a remote co-relation with the question at hands. In the said case, the Hon'ble Supreme Court permitted proving of electronic record of phone calls by way of secondary evidence. In the case of Dhan Raj Vs. Jawant Raj and another (supra), it appears that the application for secondary evidence was rejected by the Trial Court even after taking note of the fact that the original was in possession of one of the parties and was not produced in spite of service of notice only on the ground that it was difficult to say if the photo copy had been compared with the original. Obviously, the existence of the original was not in doubt and then, question of admissibility appears not to have been the matter of controversy at all. In Dhanraj Pawan Kumar's case (supra) the plaintiff had filed alongwith the plaint a photostat of the alleged khata of defendant said to be bearing his signatures but then, the original account book was said to have been lost after the same was handed over to the counsel. This Court noticed the fact that in the written statement though the defendant denied the liability but execution of khata was not denied and in this view of the matter, the plaintiff was allowed to lead secondary evidence to prove the khata in question. Again, in the overall 10 fact situation of the said case, existence of original was not in doubt and question of admissibility was not at all raised. None of the cited decisions lends any support to the case of the petitioner. In the present case, as noticed above, the prayer for leading secondary evidence has been refused when the existence of original has not been proved to the satisfaction of the Trial Court and was required to be refused for the further basic reason that if at all the document was there, the same being an unstamped one though chargeable with stamp duty, its secondary evidence could not have been permitted for the law declared by the Hon'ble Supreme Court in no uncertain terms. In the aforesaid view of the matter, the submissions as made on behalf of the petitioner are required to be, and are, rejected. The impugned order calls for no interference. This writ petition being wholly bereft of substance is dismissed with costs quantified at Rs.2,200/-. (DINESH MAHESHWARI),J. MK