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2005 DIGILAW 110 (AP)

C. Sreedhara Raja v. S. Vittoba Rao

2005-02-08

D.S.R.VERMA

body2005
D. S. R. VARMA, J. ( 1 ) HEARD both sides. ( 2 ) THIS Civil Revision Petition is directed against the order, dated 16-08-2004, passed by the Principal Junior Civil Judge, Kurnool, allowing the application in I. A. No. 101 of 2003 in R. C. C. No. 23 of 2002, filed under sections 33 and 40 of the Indian Stamp Act, 1899 (for brevity "the Stamp Act) seeking to send an unregistered document to the competent authority for the purpose of impounding and levying stamp duty and penalty. ( 3 ) THE petitioner filed R. C. C. No. 23 of 2002 seeking eviction of the respondent from the premises in question. ( 4 ) FOR the sake of convenience, the petitioner and the respondent will be referred to as "the landlord" and "the tenant" respectively. ( 5 ) THE tenant along with the counter filed the document under controversy, which is said to be a memorandum of partition deed. But, the said document, admittedly, is an unregistered and xerox copy of the original document. The original document has not been filed before the Court below. ( 6 ) AT the threshold of the enquiry in the rent Control Proceedings, the tenant filed the present application in I. A. No. 101 of 2003 seeking to send the document in controversy to the competent authority to impound and to levy appropriate stamp duty, if necessary, along with the penalty. ( 7 ) THE said application had been opposed by the landlord on the sole ground that since the document in dispute was only a xerox copy, the Court cannot simply allow the said application and send the document to the competent authority under the Stamp act. ( 8 ) IN other words it is the contention of the learned counsel appearing on behalf of the landlord that inasmuch as the document in dispute is not an instrument, under sub-section (14) of Section 2 of the Stamp Act, the Court cannot, rather need not, permit the tenant to have it transmitted to the competent authority under the Stamp Act for levying the stamp duty and thereby getting it validated for the purpose of admissibility in evidence. ( 9 ) THE Court below, however, allowed the said application and ordered to transmit the document in dispute to the competent authority i. e. , the Revenue Divisional Officer, kurnool, for impounding and levying the stamp duty. Hence, the present Civil revision Petition. ( 10 ) THE learned counsel appearing on behalf of the landlord places reliance on the judgment rendered by a learned single judge of this Court in Akkam Laxmi v. Thosha Bhoomaiah, wherein it was observed as under:"a combined reading of both the sections would show that what was not admissible under the mandatory provisions of Section 35 when admitted inadvertently in evidence without taking any objection in that regard, such admission shall not be called in question at any stage of the suit or proceedings subsequently. Therefore, what Section 36 speaks of, in my considered view, is in regard to the original document itself. A combined reading of Sections 35 of 36 of the Act and the definition of instrument as enjoined under Section 2 (14) of the Act would leave no room for any doubt that what is required to be stamped is the original instrument itself and the Act has not envisaged a copy of the original for the purpose of Stamp Act. A copy of the document cannot be called as an instrument and, therefore, it is not required to be stamped. " ( 11 ) FROM the above, it is to be seen that the view of the learned single Judge of this court based on the judgment rendered by the apex Court in Jupudi v. Pulavarthi is clear to the effect that the document in dispute is not an instrument as envisaged under Section 2 (14) of the Stamp Act and that it is only the original instrument that is required to be stamped or impounded either for the purpose of impounding and levying the stamp duty along with penalty by the court itself or upon an application made by the person who tries to introduce such document in evidence, to send the same to the competent authority under the Stamp Act for impounding and levying the stamp duty along with penalty. ( 12 ) A Division Bench of this Court (to which I am a party) in Chintalapudi annapurnamma v. Andukuri Punnayya sastry held that it is imperative for the Court to send the document for impounding and levying the stamp duty upon an application made by the person who tries to introduce the document under Section 38 (2) of the stamp Act. ( 13 ) NOW the question that falls for consideration in the present Civil Revision petition is - as to whether the Court is at an obligation to send the xerox copy of a document to the competent authority i. e. the revenue Divisional Officer, Kurnool, upon an application filed under Section 38 (2) of the Stamp Act? ( 14 ) IN this context, first of all, it is to be seen as to whether a document is a primary evidence or secondary evidence as envisaged under Section 63 of the Indian evidence ACT, 1872? ( 15 ) WHETHER the document in dispute is a secondary evidence or not, may not, in fact, be gone into for the simple reason that admittedly it was not an original document and it was only a xerox copy. ( 16 ) AS could be seen from the impugned order, admittedly, an attempt was also made by the Court below to examine the person in whose custody the alleged original document was and he stated that the original was missed. ( 17 ) THEREFORE, obviously, the document in dispute is not the original and consequently, at best, be termed as "a piece of secondary evidence only" ( 18 ) THE apex Court in Jupudi s case (2 supra), as was noticed by a learned single judge of this Court in Akkam Laxmi s case (1 supra), held as under:"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 authroity 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, 1872 would not fulfil the requirements of the proviso which enjoins upon the authroity 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. " ( 19 ) FURTHER, a Division Bench of this court in E. Venkat v. E. Yadgir has taken the same view following the judgment rendered by the apex Court in Jupudis s case (2 supra ). ( 20 ) AS already noticed, the present document in dispute would not fall under the definition of Section 2 (14) of the Stamp Act.