( 1 ) THIS revisional application under Article 227 of the Constitution of india is at the instance of the defendant in Title Suit No. 610 of 1997 pending before the learned Civil Judge, Senior Division, Barasat and is directed against order No. 53 dated 12th August, 2005 passed by the learned Trial judge. ( 2 ) THAT was a suit brought by the present petitioner against the present opposite parties for specific performance of contract. ( 3 ) THE trial of the said case started and the Court fixed a date for argument. ( 4 ) IN fact, the argument was also over. ( 5 ) THEREAFTER, the plaintiff filed one application in which the plaintiff took the plea that though the copy of the alleged deed of agreement was filed before the Court, due to inadvertence, the same could not be proved. Accordingly, the prayer was made to allow the P. W. 1 to be recalled to prove the said document as per law. ( 6 ) THE said petition was opposed by the defendant by filing written objection. ( 7 ) THE learned Trial Judge by order No. 41 dated 7. 9. 2004 rejected the said application for recalling the P. W. 1. ( 8 ) AGAINST that order, the plaintiff preferred one revision before the hon'ble Court which was numbered as C. O. No. 3071 of 2004. ( 9 ) THE learned Single Judge by order dated 27. 9. 2004 allowed the revision and set aside the order passed by the learned Trial Judge. The learned Single Judge directed the learned Trial Judge to decide whether he will mark the document in question as exhibit on the basis of evidence that will be produced and at the same time, the learned Trial Judge shall give opportunity to the defendant to lead further evidence for the purpose of contradicting evidence sought to be produced. ( 10 ) ON the basis of the same, P. W. 1 was allowed to be recalled. A separate affidavit of evidence was filed. ( 11 ) THE learned Trial Judge by the order impugned allowed the document to be marked as exhibit as secondary evidence. ( 12 ) THE learned Trial Judge further opined that the same would not preclude the plaintiff from exempting him from payment of any stamp duty which would be decided later on. ( 11 ) THE learned Trial Judge by the order impugned allowed the document to be marked as exhibit as secondary evidence. ( 12 ) THE learned Trial Judge further opined that the same would not preclude the plaintiff from exempting him from payment of any stamp duty which would be decided later on. The learned Trial Judge fixed a date for further cross-examination of P. W. 1 after recall. ( 13 ) BEING dissatisfied and aggrieved by the said order, the instant revisional application has been preferred by the defendant. ( 14 ) MR. Bidyut Banerjee, learned Senior Counsel for the present petitioner challenged the order impugned on the following grounds: - (i) That the Court ignored the fact that xerox copy of alleged deed of agreement can never be accepted as evidence. (ii) That the Court ignored the fact that on the basis of interpretation of statute, the Apex Court decided that under no circumstances copy of a deed of agreement can be marked as exhibit unless the original is properly stamped. (iii) That the Court committed error in accepting the document as secondary evidence. ( 15 ) THE said pleas were vehemently opposed by Mr. Ashok Banerjee, learned Counsel for the opposite parties. It was the contention of Mr. Banerjee that the law is very clear in this regard. He took the specific plea that in the case of loss/theft of the original etc. , the copy of the said document can be marked as exhibit and the said evidence is to be treated as secondary evidence. ( 16 ) IT was the further contention of Mr. Banerjee that the Court rightly passed the order and in the said order provision has been made for realization of proper stamp duty subsequently. As such, Mr. Banerjee contended that there was no error on the part of the learned Trial Judge in accepting the said document as secondary evidence by marking the same. ( 17 ) MR. Banerjee that the Court rightly passed the order and in the said order provision has been made for realization of proper stamp duty subsequently. As such, Mr. Banerjee contended that there was no error on the part of the learned Trial Judge in accepting the said document as secondary evidence by marking the same. ( 17 ) MR. Bidyut Banerjee, learned Senior Counsel appearing for the present petitioner/defendant took the specific plea that the alleged deed of agreement was executed after West Bengal Amendment of the Stamp act came into effect and the said amended provision of the Act clearly provides that stamp duty is to be paid at the market price with respect to execution of any deed of agreement for sale which is payable with respect to deed of sale. ( 18 ) MR. Banerjee contended that as per Schedule-'1a' of the amended portion of the Stamp Act, a deed of agreement for sale is to be treated as an "instrument". As the said deed of agreement comes within the purview of "instrument", proper stamp duty is to be affixed in the said deed of agreement and unless the same is done, the copy of the said deed can neve. r be marked as exhibit. ( 19 ) MR. Banerjee further contended that the copy of the un-stamped document can never be accepted as evidence and as such, the question of accepting the said document as secondary evidence does not arise. ( 20 ) I have already mentioned that after argument of the parties was over before the Court below, the plaintiff filed one application for recalling p. W. 1 to prove the xerox copy of the agreement for sale which is the subject-matter of the suit. ( 21 ) THE learned Trial Judge rejected the said application and against that order, the plaintiff moved before the Hon'ble High Court by filing one revisional application. ( 22 ) THE learned Single Judge allowed the said application and directed the learned Trial Judge to allow the plaintiff to prove the document in question. The learned Single Judge also opined "whether the Court will rely upon such evidence is altogether a different question, but in my view the plaintiffs have made out a case for giving an opportunity to prove such case. The learned Single Judge also opined "whether the Court will rely upon such evidence is altogether a different question, but in my view the plaintiffs have made out a case for giving an opportunity to prove such case. It is need less to mention that once P. W. 1 be recalled, the defendant will be free to give further evidence and also to cross-examine p. W. 1 for the purpose of opposing the evidence sought to be produced. " ( 23 ) RELYING upon the said observation of the learned Single Judge, mr. Ashok Banerjee learned Counsel for the opposite parties contended that Court below complied with the said direction by allowing the P. W. 1 to prove the document on recall and the learned Trial Judge marked the said document by coming to the clear conclusion that the said document is to be treated as secondary evidence. ( 24 ) IT is needless to mention that the case of the plaintiff is hanging around the agreement, xerox copy of which was filed earlier and was accepted by the learned Trial Judge as secondary evidence on proof. ( 25 ) MR. Bidyut Banerjee, learned Counsel appearing for the petitioner challenged the impugned order on the ground that the Court totally ignored the provision of Section 35 of the Stamp Act and also relied upon the west Bengal Amendment of the said Act. Mr. Banerjee, on the basis of the said amendment of the Stamp Act contended that as per Schedule-1 A clause 5 (d), an agreement for sale is to be stamped as if the same is a deed of conveyance and it is to be stamped on the market value. ( 26 ) MR. Banerjee, contended further that the said xerox copy of the deed can never be treated as "evidence" as the original of the said document was never stamped properly. ( 27 ) MR. Bidyut Banerjee, learned Counsel appearing for the petitioner drew the attention of Section 2 (14) of the Indian Stamp Act and on the basis of the same he contended that an "instrument" includes every document by which any right or liability is or purports to be created, transferred, limited, extended, extinguished or record. ( 28 ) MR. Banerjee, further referred to Section 39 of the Stamp Act. ( 28 ) MR. Banerjee, further referred to Section 39 of the Stamp Act. ( 29 ) WE are not concerned with the power of the Collector and as such there is no need to discuss the said section. ( 30 ) MR. Bidyut Banerjee, in course of his argument referred to Section 34 of the Transfer of Property Act and on the basis of the same he contended that some right is created on the basis of an instrument by which one party agrees to transfer his property. ( 31 ) MR. Banerjee, further contended that as per the Indian Stamp act (West Bengal Amendment) Section 3 clearly provides that an agreement for sale is to be treated as instrument and the moment the alleged deed of sale is accepted as instrument, the Court is duty bound to consider whether proper stamp duty has been paid or not. It was the contention of Mr. Bidyut Banerjee, that as the original agreement for sale was not properly stamped, xerox copy of the same under no circumstances can be accepted by a Court even as a secondary evidence. Accordingly, mr. Banerjee, challenged the order and prayed before this Court for setting aside the said order. ( 32 ) MR. Bidyut Banerjee, further contended that the learned Trial judge relied upon the case reported in AIR 2002 Madras 278 but ignored the findings of the Hon'ble Supreme Court reported in AIR 1971 SC 1071. ( 33 ) MR. Banerjee, challenged the order impugned also on the ground that though the Court discussed about the case reported in AIR 2002 madras 278, the learned Trial Judge did not discuss the details of the ease reported in AIR 1971 SC 1071. ( 34 ) RELYING upon the said case, Mr. Banerjee, contended that the hon'ble Supreme Court clearly came to the conclusion that xerox copy of a document, original of which was not properly stamped, can never be accepted as a secondary evidence and the learned Trial Judge ignoring the said finding passed the order impugned. ( 35 ) THE said pleas were opposed by Mr. Ashok Banerjee, learned counsel for the Opposite Parties who took the specific plea that the xerox copy of the agreement for sale can never be called to be an "instrument". He challenged the plea of Mr. ( 35 ) THE said pleas were opposed by Mr. Ashok Banerjee, learned counsel for the Opposite Parties who took the specific plea that the xerox copy of the agreement for sale can never be called to be an "instrument". He challenged the plea of Mr. Bidyut Banerjee, that in the Stamp Act (West bengal Amendment), the definition of instrument clearly provides that it relates to original deed of sale-not xerox copy of the said deed. ( 36 ) MR. Ashok Banerjee, contended further that the learned Trial judge correctly relied upon the case reported in AIR 2002 Madras 278, S. Sadapopan (died) and Anr. v. K. S. Sabarinathan. ( 37 ) IT is to be mentioned here that Mr. Bidyut Banerjee relied upon the following cases : - (i) Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao and Ors. , reported in AIR 1971 SC 1070 . (ii) Dr. Swapnadin Lahiri v. Tridib Das Roy with Chitta Ranjan jana v. Arun Kumar Jana, reported in 1999 (II) CHN 369 . (iii) State of Bihar v. M/s. Karam Chand Thapar and Brothers ltd. , reported in AIR 1962 SC 110 . (iv) Biswajit Chakraborty v. Mira Sen Ray, reported in 2002 (2)CLJ 449 . ( 38 ) ON the other hand Mr. Ashok Banerjee relied upon the following cases : - (i) Marwari Kumhar and Ors. v. Bhagwanpuri Guru Ganeshpuri and Anr. , reported in AIR 2000 SC 2629 . (ii) The Chief Controlling Revenue Authority, Ahmedabad v. The Nutan Mills Ltd. . reported in AIR 1978 Gujarat 1. (iii) Sfate of Bihar v. M/s. Karam Chand Thapar and Brothers ltd. , reported in AIR 1962 SC 110 . (iv) Hindustan Steel Ltd. v. M/s. Dilip Construction Co. , reported in AIR 1969 SC 1238 . ( 39 ) I will now deal with the cases as referred by the learned Lawyer for the parties. ( 40 ) MR. Bidyut Banerjee relied upon Paragraph-9 of the case reported in AIR 1971 SC 1070 which runs as follows : - "9. Learned Counsel for the appellant Mr. Sen argued that the admissibility of secondary evidence, be it oral or in writing, must be primarily decided in terms of the Indian Evidence Act. ( 40 ) MR. Bidyut Banerjee relied upon Paragraph-9 of the case reported in AIR 1971 SC 1070 which runs as follows : - "9. Learned Counsel for the appellant Mr. Sen argued that the admissibility of secondary evidence, be it oral or in writing, must be primarily decided in terms of the Indian Evidence Act. Inasmuch as the original document which was insufficiently stamped was suppressed by the defendants in the suit for specific performance, secondary evidence of the contents of the document could be led in terms of Section 65 (a) of the Evidence Act. The Evidence Act imposed no bar to the reception of oral evidence by way of secondary evidence to prove the terms of the agreement to lease which was in writing and duly executed. According to counsel the Stamp Act did not create a bar with respect to the reception of secondary evidence to prove a document which was unstamped or insufficiently stamped in any case where the party seeking to rely upon the execution of the document and the terms thereof offered to pay the penalty in terms of Section 35 of the Stamp Act. According to Mr. Sen Section 35 raised a bar only in cases which were expressly excluded by proviso (a) to Section 35 and in others where the party seeking to rely on the document was not agreeable to pay the deficiency in the stamp together with the penalty in terms of the said proviso. Mr. Sen further argued that the whole object of Section 35 of the Stamp act was that the Government revenue due by way of stamp should be protected. But even then Section 36 carved out an exception thereto and allowed the reception of an insufficiently stamped instrument in evidence when it had been admitted without objection at the initial stage. It was not reasonable, according to counsel to limit the operation of Section 36 only to cases where the original instrument was admitted in evidence without objection and logically oral evidence to prove the contents of a document which was insufficiently stamped should be subject to the same but no further infirmity and once such oral evidence was recorded without objection of the party against whom it was tendered, particularly where such party was responsible for the suppression or non-production of the document, it should be acted upon by Courts of law. If the party tendering oral evidence was agreeable to make up the deficiency in the stamp and pay the penalty in terms of Section 35. " He also relied upon Paragraphs-20 and 21 which runs as follows : - "20. The decisions of different High Courts make it quite clear that the cause of the non-production of the original instrument is immaterial i. e. whether it was lost or whether it was destroyed or even if it was the allegation of the party seeking to prove its contents by alleging that the document written statement suppressed by his opponent. 21. In Chidambaram v. Mayyappan, AIR 1946 Mad 298 the plaintiffs produced an unstamped document as the basis of their claim. Before the trial commenced a mob invaded tho Court and set fire to it with the result that records of many cases including the record of the above case were destroyed. When the trial commenced the plaintiff sought to put in a copy of the, document and it was objected to on the ground that the copy could not be stamped even on payment of penalty. The Subordinate Judge without admitting the document but leaving the question of its admissibility open until he had heard the arguments of counsel, marked it as an exhibit. In rejecting the plaintiffs' appeal the learned Judges of the Madras high Court referred to the decision of the Privy Council in Raja of bobbli's case, 1900 ILR 23 Mad 49 (supra) and observed that the destruction by the mob's action put the plaintiffs in no better position. " ( 41 ) ON the basis of the same, learned Counsel for the petitioner contended that the trial Judge committed error in accepting the xerox copy of the document in question as secondary evidence though the Hon'ble supreme Court clearly opined that no such document can be accepted as evidence. ( 42 ) IN the case in between State of Bihar v. M/s. Karam Chand Thapar and Brothers Ltd. , reported in AIR 1962 SC 110 , the Court considered the acceptance of a report submitted by the Arbitrator, copy of which was produced before the Court. ( 43 ) IN my opinion the said case will not help Mr. Bidyut Banerjee's client. ( 44 ) IN the case in between Dr. ( 43 ) IN my opinion the said case will not help Mr. Bidyut Banerjee's client. ( 44 ) IN the case in between Dr. Swapnadin Lahiri v. Tridib Das Roy with Chitta Ranjan Jana v. Arun Kumar Jana, reported in 1999 (II) CHN 369 , the learned Single Judge of this Court opined about the duty payable on an agreement for sale of immovable property in terms of Schedule-IA item 5 (d) as inserted by the West Bengal Amendment of the Act. We are not concerned with the said reported case and the principle as laid down in that case is also not attracted in the instant case. ( 45 ) IN the case in between Biswajit Chakraborty v. Mira Sen Ray, reported in 2002 (2) CLJ 449 the Single Judge of this Court came to the conclusion that xerox copy or photocopy of a document can be accepted only as secondary evidence. ( 46 ) IN the instant case the learned Trial Judge after considering the pleas as raised before him clearly came to the conclusion that the document in question, which has been produced and proved is to be accepted as a secondary evidence. ( 47 ) LET me deal with the cases as referred by Mr. Ashok Banerjee. ( 48 ) IN the case in between The Chief Controlling Revenue Authority, ahmedabad v. The Nutan Mills Ltd. , reported in AIR 1978 Gujarat 1, the hon'ble Court came to the conclusion that copy of an instrument creating charge is not an instrument and copy cannot be impounded and neither duty nor penalty can be recovered. Head Note 'c'. ( 49 ) IN the case in between Hindustan Steel Ltd. v. M/s. Dilip construction Co. , reported in AIR 1969 SC 1238 , Head Note 'a' runs as follows : ( 50 ) STAMP Act 1899, Sections 35 and 36- provision of Section 36 do not create any bar against an instrument not duly stamped being acted upon AIR 1952 Allahabad 1996 overruled. Head Note 'b' runs as follows: ( 51 ) SECTION 1- scope-provision are not meant to remand a litigant with technicalities to defeat claim of opponent. ( 52 ) IN the case in between Marwari Kumhar and Ors. v. Bhagwanpuri guru Ganeshpuri and Anr. Head Note 'b' runs as follows: ( 51 ) SECTION 1- scope-provision are not meant to remand a litigant with technicalities to defeat claim of opponent. ( 52 ) IN the case in between Marwari Kumhar and Ors. v. Bhagwanpuri guru Ganeshpuri and Anr. , reported in AIR 2000 SC 2629 , the Apex Court dealt with Public document-proof-Secondary evidence in form of ordinary copy-Admissible when both original and certified copy is lost (Head Note A ). ( 53 ) THE said case will not help Mr. Ashok Banerjee's client as we are not concerned with a public document. ( 54 ) IT should be stated here that the learned Trial Judge by the order impugned accepted the evidence as secondary evidence. ( 55 ) AT the same time, the learned Trial Judge kept the option open regarding payment of the stamp duty along with penalty subsequently. ( 56 ) I am to State here further that Mr. Bidyut Banerjee learned counsel for the petitioner challenged the order on the ground that the intention of the legislature has been violated as the question of earning of revenue to the State exchequer is also involved. ( 57 ) THE said plea was opposed by Mr. Ashok Banerjee, learned counsel for the Opposite Parties who contended that the learned Trial judge kept in his mind regarding, the said intention of the legislature and accordingly came to the conclusion that the proper stamp duty along with penalty can be realized subsequently. ( 58 ) IT is to be mentioned here also that accepting the document in question, as secondary evidence will not debar the present petitioner in challenging the evidential value of the same at the time of argument. ( 59 ) IN view of the discussions as made above and on the basis of materials-on-record, I am of clear opinion that there was no error in the impugned order and accordingly, there is no need to interfere with the said order. ( 60 ) AS such, the instant revisional application is dismissed on contest but without any cost.