Judgment :- C.R.P.M.P.No.1321/2007 is filed to vacate the interim stay granted by this Court in C.R.P.M.P.No.8792/2006 in C.R.P.No.6416/2006 dt.19-12-2006 and pass such other suitable orders. When the vacate application came up for hearing, the Counsel representing the parties made a request for the final disposal of the Civil Revision Petition and made elaborate submissions. Hence, the Civil Revision Petition itself is being disposed of finally. 2. This Court on 19-12-2006 while admitting the Civil Revision Petition, in C.R.P.M.P.No.8792/2006 made the following Order:- “Before receiving a document as a secondary evidence, the Court is under obligation to satisfy itself as to whether the steps contemplated under Sections 65 and 66 of the Evidence Act are complied with, and from a perusal of the order under revision, it is not prima facie evident that such an exercise was undertaken. Further, the payment of stamp duty must precede the admission of the document. The matter needs to be examined. There shall be interim stay as prayed for, to be in force, for a period of six weeks. Post after four weeks.” Subsequent thereto, on 25-1-2007 the interim order already granted was extended until further orders. An application to vacate the interim stay granted had been filed, as already aforesaid. 3. Sri Ch. Pushyam Kiran, the learned Counsel representing the revision petitioner had taken this Court through the contents of the Order under challenge in the present Civil Revision Petition and would maintain that the learned Principal Junior Civil Judge, Rajahmundry, erred in allowing the Xerox copy of the alleged lease deed be received as secondary evidence subject to the condition of the payment of stamp duty and penalty. The learned Counsel also pointed out that the alleged lease deed was not even pleaded in the plaint. The Counsel also incidentally had drawn the attention of this Court to Sections 17 and 49 of the Indian Registration Act and also the relevant provisions of the Indian Stamp Act and would maintain that in the light of the decided cases, the impugned order cannot be sustained and the same is liable to be set aside. 4. Per contra, Sri S.R. Sanku, the learned Counsel representing the respondent in Civil Revision Petition, would maintain that as per the instructions received, the stamp duty and penalty already had been decided by impounding the document and in a way the present Civil Revision Petition became infructuous. 4. Per contra, Sri S.R. Sanku, the learned Counsel representing the respondent in Civil Revision Petition, would maintain that as per the instructions received, the stamp duty and penalty already had been decided by impounding the document and in a way the present Civil Revision Petition became infructuous. The learned Counsel also would maintain that it is not as though on the strength of this document alone, the rights of the parties are going to be decided and in the light of the same, and also in the light of Section 65 of the Indian Evidence Act, 1872, the Xerox copy of the document can be received as secondary evidence, the impugned order cannot be found fault. The learned Counsel also would maintain that even otherwise this document can be tentatively marked at present leaving all questions open to be decided at the appropriate stage i.e., final disposal of the suit. The learned Counsel placed reliance on certain decisions to substantiate his submissions. 5. Heard the Counsel. 6. The Civil Revision Petition is filed as against an order dt.13-11-2006 made in O.S.No.216/2000 on the file of the Principal Junior Civil Judge, Rajahmundry. The learned Principal Junior Civil Judge, Rajahmundry while deciding the admissibility of Xerox copy of unregistered lease deed dt.21-2-95, came to the conclusion that the secondary evidence be received subject to the condition of the payment of stamp duty and penalty and the learned Judge also further observed that for payment of stamp duty and penalty if any and to mark the said document, the matter be posted to 21-11-2006. 7. The suit is for eviction and recovery of arrears of rent and also for permanent injunction restraining the defendant from committing acts of waste or dealing with the plaint schedule premises in any manner prejudicial or detrimental to the interest of plaintiff. The matter was coming up for cross-examination of P.W.1 and at that stage, the plaintiff wanted to mark the Xerox copy of the agreement of lease dt.21-2-95 and the same was resisted by the learned Counsel representing the defendant on the ground that the said document is a fabricated one. Further objection had been taken that without producing the original, Xerox copy cannot be marked and yet another objection had been raised that the plaintiff has to pay the stamp duty and penalty and the said document also requires registration. 8. Further objection had been taken that without producing the original, Xerox copy cannot be marked and yet another objection had been raised that the plaintiff has to pay the stamp duty and penalty and the said document also requires registration. 8. The said document is a Xerox copy of unregistered lease agreement dt.21-2-95 and the rent stipulated is Rs.1500/- per month and it appears the plaintiff and the defendant entered into an agreement of lease for a period of six years from 1-1-92 to 31-12-97 with certain terms and conditions. The learned Judge recorded reasons at paras 5 and 6, referred to Amangenti Prameela V. Venkat Reddy (Died) L.Rs. (2004 (3) ALD 66), S.P. Bharucha V. R.C. Lahoti (1999 (3) ALD (S.C.S.N.) 27), Nawab Singh V. Inderjit Kaur (AIR 1999 S.C., 1668) And Dwarika Prasad Bajpai V. Kedar Prasad Bajpai (AIR 2004 Calcutta 204), and ultimately came to the conclusion that the said document be received as secondary evidence under Section 65(a) of the Indian Evidence Act, 1872 subject to the condition of the payment of stamp duty and penalty. 9. Section 2 (14) of the Indian Stamp Act defines “instrument” as “instrument” includes every document by which any right or liability is, or purpose to be, created, transferred, limited, extended, extinguished, or recorded. 10. The learned Counsel representing respondent placed strong reliance on Guni Ram V. Kodai, AIR 1971 Allahabad 434, wherein the learned Judge while dealing with Section 35 of the Stamp Act observed at paras 7, 10 and 11 as hereunder:- “Now coming to the main argument mentioned above, the question that falls for determination is whether evidence in proof of due execution of a document which is produced before the Court unstamped, being a document required to be executed on stamped paper under the Indian Stamp Act, can be adduced without the Court first admitting it in evidence or acting upon it on payment of the requisite stamp duty and the penalty? The answer to this question would depend upon as to what is the meaning to be given to the words “admitted in evidence for any purpose” and the words “shall be acted upon” used in Section 35 of the Indian Stamp Act. Section 35 of the said Act makes instruments not duly stamped inadmissible in evidence. The answer to this question would depend upon as to what is the meaning to be given to the words “admitted in evidence for any purpose” and the words “shall be acted upon” used in Section 35 of the Indian Stamp Act. Section 35 of the said Act makes instruments not duly stamped inadmissible in evidence. Under Rule 3 of Order XIII, C.P.Code the Court is empowered at any stage to reject any document which is inadmissible. It may be within the power of the Court to reject a document which Section 35 of the Stamp Act makes inadmissible. But the appropriate course will be to impound it when produced. It cannot be said that the learned Munsif who tried the suit wrongly rejected from evidence paper No.30/A-1. But can it be said that the evidence as to the execution of the said document, that is, on the factum of Guniram having signed it after understanding its contents was inadmissible and the learned Munsif legally erred in law permitting such evidence to be adduced and in making it a part of the record? In other words, will the ultimate rejection of paper No.30/A-1 from evidence at a later stage make the evidence relating to its execution adduced at an earlier stage illegal and such evidence for any purpose could not be taken into consideration by the Court? Learned Counsel for the defendants-appellants contended that the evidence adduced by the plaintiffs relating to the execution of the agreement by Guniram cannot be deemed to be a part of the record thus in the eye of law there was no material before the lower appellate Court to prove its due execution by Guniram even though the lower appellate Court admitted the document paper No.30/A-1 in evidence on payment of requisite stamp duty and penalty by the plaintiffs. Reliance was placed on a Division Bench decision of the Bombay High Court in the case of Rustomji Aredeshir Irani v. Vinayak Gangadhar Bhat (1911) ILR 35 Bom.29). The learned Judges after noticing Section 35 of the Stamp Act observed that as an unstamped document cannot be admitted in evidence, it must, in the suit, be taken to be non-existent. Reliance was placed on a Division Bench decision of the Bombay High Court in the case of Rustomji Aredeshir Irani v. Vinayak Gangadhar Bhat (1911) ILR 35 Bom.29). The learned Judges after noticing Section 35 of the Stamp Act observed that as an unstamped document cannot be admitted in evidence, it must, in the suit, be taken to be non-existent. It was submitted by the learned Counsel on the basis of the said observations of the learned Judges of the Bombay High Court that when paper No.30/A-1 was non-existent, that is, was not a part of the record, no evidence to prove its execution could be adduced and admitted by the trial Court. This submission on behalf of the appellants was countered by the learned Counsel for the plaintiffs-respondents by putting reliance on Section 36 of the Stamp Act. It was submitted that when the document was produced in evidence after taking permission from the Court without demur on the part of the defendants, and evidence as to its execution was allowed to be adduced, it would be deemed that the document was duly admitted in evidence. Therefore, such admission cannot be called in question now on the ground that the instrument had not been duly stamped. A reference was made to the case of Brijraj v. Rajaram (AIR 1957 Hyderabad 35), in which Section 34 of the Hyderabad Stamp Act, which was similar to Section 36 of the Indian Stamp Act, was considered. I do not think the decision of that case is of any help as would appear from the facts of that case that in the trial Court itself on the promissory note in suit the requisite stamp duty and penalty was paid. I do not think the provisions of Section 35 of the Stamp Act serve as a sound foundation for accepting the contention of the learned Counsel for respondents. Section 36, to my mind, comes into play only when a Court admits an unstamped document or insufficiently stamped document on holding that it did not require any stamp or fell within the proviso of Section 35, though that decision may be faulty or erroneous. Here is a case where the learned Munsif trying the suit appears to have always been conscious of the fact that paper No.30/A-1 was an instrument requiring stamp duty and it was not stamped when produced before the Court on 17-9-65. Here is a case where the learned Munsif trying the suit appears to have always been conscious of the fact that paper No.30/A-1 was an instrument requiring stamp duty and it was not stamped when produced before the Court on 17-9-65. The learned Munsif did not consider the question whether any stamp duty was chargeable or the document was acquired to be executed on a stamped paper, or that the it was covered by any of the provisos to Section 35 but kept it on record and ultimately rejected it from evidence. Section 36, therefore, cannot be a sufficient answer to the problem posed on the arguments of the learned Counsel for the appellants. It would be noticed that while Section 33 of the Stamp Act uses the words “produced” in respect of the an instrument chargeable to stamp duty, in Section 35 it uses the words “admitted in evidence” or ‘acted upon’ in regard to an unstamped instrument. The law, therefore, makes a distinction between production of an instrument and its admission in evidence or in acting upon it. That is also the distinction made under the scheme of the Civil Procedure Code. Order XIII, Rule 1 lays down when the documentary evidence is to be produced. Then Rule 2 deals with the effect of non-production of documents. Then there is a catena of rules following dealings with inadmissible documents and documents being admitted in evidence. Rule 7 lays down that when a document had been admitted in evidence then it shall form part of the record of the suit and the documents not admitted in evidence shall not form part of the record and shall be returned to the persons producing them. Rule 8 empowers the Court to impound the document when produced. Thus the substantive law in the Stamp Act and the procedural law in the C.P.Code do make a clear distinction between production of a document and its admission in evidence. To my mind under Section 35 of the Stamp Act admitting an instrument in evidence or acting upon it mean the same thing and are synonymous. Thus the substantive law in the Stamp Act and the procedural law in the C.P.Code do make a clear distinction between production of a document and its admission in evidence. To my mind under Section 35 of the Stamp Act admitting an instrument in evidence or acting upon it mean the same thing and are synonymous. When a document is said to be admitted in evidence it would mean that the contents of it have become evidence in the suit or proceedings in which that document is evidence of the right or title founded on them and enforcing that right or title would amount to acting upon the document. The receiving of evidence in proof of the due execution of the document which would always be extraneous to the contents or recitals thereof and would not amount to acting upon the document as the evidence of its due execution by itself would not serve as a foundation for any right or title. Section 35 of the Stamp Act, therefore, does not place any embargo on the power of the Court to receive evidence of the circumstances under which a particular instrument was prepared and signed. The embargo is on the enforcement of rights or title or acting upon an instrument which is unstamped. Under para 42 of the General Rules (Civil) 1957 for Civil Courts a party desiring to produce any document in Court shall before producing it in Court obtain admission or denial recorded on the back of the document by the opposite party’s lawyer. Paper No.30/A-1 bears an endorsement “not admitted”. Presumably it is the endorsement by the defendants’ lawyer. When the said paper was produced before the Court by the plaintiffs as not admitted by the defendants, the plaintiffs were required to prove its due execution before they could rely on its contents evidencing an agreement to sell. Under para 53 of the General Rules (Civil) the duty of the Court upon production of a document is given. Documents which are not admitted by the party against whom they are produced in evidence are to be kept on the record pending proof and shall be rejected at the close of the evidence if not proved or admitted. The Court if it finds a document to be irrelevant or otherwise inadmissible in evidence will reject it forthwith. Documents which are not admitted by the party against whom they are produced in evidence are to be kept on the record pending proof and shall be rejected at the close of the evidence if not proved or admitted. The Court if it finds a document to be irrelevant or otherwise inadmissible in evidence will reject it forthwith. There is an injunction in the note appended to the said rule that no document unless admitted in evidence shall be marked as an exhibit. As the learned Munsif did not find paper No.30/A-1 irrelevant or otherwise inadmissible he did not reject it forthwith. He rightly kept it on record pending proof. It is only when a document is proved that it shall be admitted in evidence by the Court and marked as exhibit. The scheme under General Rules (Civil) is based on the scheme under Order XIII C.P.Code which requires certain endorsements on every document which has been admitted in evidence. The state of endorsing under Rule 4 of Order XIII arises when a document has been proved and is to be admitted in evidence by the Court. The due execution of a document is the proof thereof. It cannot be admitted in evidence unless proved. Thus the evidence in proof of due execution of a document is a stage which is prior to the stage of admitting it in evidence. In the case of Gordhansingh V. Suiwalal and Kalyanbux (AIR 1959 Raj.156) it has been held that a document can only be said to be admitted in evidence when it is formally proved and tendered in evidence. There are two stages relating to documents filed in Court. One is the stage when all the documents are filed by the parties in Court. The next stage is when the documents are formally proved and tendered in evidence. It is after the document is formally proved that the endorsement referred in Rule 4 of Order XIII of the Code of Civil Procedure is to be made. One is the stage when all the documents are filed by the parties in Court. The next stage is when the documents are formally proved and tendered in evidence. It is after the document is formally proved that the endorsement referred in Rule 4 of Order XIII of the Code of Civil Procedure is to be made. I am clear in my mind that the admission of evidence by a Court to prove due execution of an instrument chargeable to duty under the Stamp Act, though produced unstamped, is permitted to be received by the Court but such instrument will not be admitted in evidence or acted upon, that is to say, its recitals cannot be used either in favour of the party relying on it or against his adversary. Under Section 5 of the Stamp Act there is a prohibition that no Court shall admit in evidence an instrument chargeable with duty. The argument of the learned Counsel for the defendants-appellants that the learned Munsif erred in law in allowing the plaintiffs to adduce evidence for proving the signature of Guniram on paper No.30/A-1 and for establishing the circumstances in which it was written out and signed by Guniram, has no substance and is not acceptable. It was then urged for the appellants that as paper No.30/A-1 does not bear any endorsement and exhibit number even though the requisite duty and penalty was paid by the plaintiffs, it would be deemed not to have been admitted in evidence as that is the requirement of the procedural law, hence the plaintiffs’ suit ought to be dismissed as paper No.30/A-1 cannot be read in evidence. I am unable to appreciate this argument. An omission to mark a document admitted in evidence as exhibited and giving it a number will be a mere omission would not amount to any illegality. It appears to me that it was a mere oversight on the part of the learned Judge of the Court below that he did not direct the requisite endorsement to be made and exhibit number marked on paper No.30/A-1. For the omission or mistake of a Court a party ought not to be penalized. Moreover, the learned Counsel for the appellants has not been able to show what prejudice was caused to the defendants merely because paper No.30/A-1 does not bear any exhibit number.” 11. For the omission or mistake of a Court a party ought not to be penalized. Moreover, the learned Counsel for the appellants has not been able to show what prejudice was caused to the defendants merely because paper No.30/A-1 does not bear any exhibit number.” 11. Reliance also was placed on Channamma V. Shantkumar, AIR 2004 Karnataka 266, wherein the learned Judge at paras 7 and 8 observed as hereunder:- “A reading of Section 2(1)(j) makes clear where a document creates some right or liability between the parties transferring certain rights, then it comes within the meaning of definition of an “instrument” and is chargeable. Section (1)(k) makes clear that where parties agreed to divide certain properties in a partition under an “instrument”, then it is liable to be duly stamped. It is in respect of the those documents if proper stamp duties are not paid, such documents have to be impounded and the duty and penalty has to be charged, if it is to be admitted in evidence. In the present case, what is required to be produced is the certified copy of the map, only for the purpose of identifying the properties described in an “instrument”. Therefore, I am of the opinion that the certified copy of the map does not come within the meaning of Section 2(1)(j) and (k) of the Act so as to direct to pay the duty and penalty. In the case of Hanumanumul Baid v. Ananthapadmanabha (ILR 1992 Kar1133), the documents referred to is a partition deed, which is unstamped. Therefore, unless the document is stamped, it cannot be admitted in evidence. But, the facts of the present case are entirely different. The Stamp Act does not provide for paying the duty and penalty in respect of the sketches, maps, etc. If such thing were to be allowed, there will be no end to the litigation and that the is also not the intention of the legislation in enacting the Stamp Act. If the transaction takes between two or three persons under the instrument and is not charged properly, in respect of the such instrument the Court can direct the party to pay the duty and penalty as the case may be. But, mere production of the certified copy of the map does not come within the meaning of definition of an “instrument”. 12. But, mere production of the certified copy of the map does not come within the meaning of definition of an “instrument”. 12. Further strong reliance was placed on the decision of the Apex Court in Nawab Singh V. Inderjit Kaur, AIR 1999 S.C., 1668 wherein the Apex Court at paras 3, 4 and 5 observed as hereunder:- “Having heard the learned counsel for the parties, we are of the opinion that the trial Court was not justified in rejecting the prayer seeking leave of the Court for production of secondary evidence. The prayer has been rejected mainly on the ground that the copy of the rent note sought to be produced by the appellant was of doubtful veracity. The trial Court was not justified in forming that opinion without affording the appellant an opportunity of adducing secondary evidence. The appellant has alleged the original rent note to be in possession of the respondent. The case was covered by Clause (a) of Section 65 of the Indian Evidence Act, 1872. Learned counsel for the respondent submitted that the appellant was protracting the trial and being in possession of the premises was interested in delaying the hearing of the suit. That may or may not be true but the fact remains that that is not the reason on which the rejection by the trial Court is founded. In our opinion, the ends of justice would be satisfied if the appellant is allowed an opportunity of adducing secondary evidence but subject to terms. The appeal is allowed. The impugned order of the trial Court dated 3-2-98 and the order of the High Court dated 16-9-98 passed in revision are both set-aside. The appellant is granted leave of adducing secondary evidence of the existence, condition and contents of the rent note dated 23-9-1994. The trial Court shall appoint a date on which the appellant shall have the liberty of adducing such secondary evidence as he may choose to do but if he fails to adduce such evidence on the appointed date, he shall not be entitled to an adjournment for the purpose. The appellant shall also be liable to pay costs quantified at Rs. 5,000/- (Rupees five thousand only) to the respondent, having regard to all the circumstances.” 13. The appellant shall also be liable to pay costs quantified at Rs. 5,000/- (Rupees five thousand only) to the respondent, having regard to all the circumstances.” 13. The Counsel for revision petitioner placed reliance on the decision of the Apex Court in Jupudi Kesava Rao V. Pulavarthi Venkata Subba Rao and Others, AIR 1971 S.C., 1070, where the Apex Court while dealing with Sections 35 and 36 of the Indian Stamp Act held as hereunder. “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. 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. 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 Section 35 in cases where 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.” 14. Reliance also was placed on the decision Mulla Alamsabgari Dastagiri V. B. Pullamma 2004 (2) ALT 271 . In Akkam Laxmi V. Thosha Bhoomaiah and Others 2002 (4) ALD 808 = 2002 (5) ALT 624 the learned Judge at para 8 observed as hereunder:- “A perusal of Section 35 shows that the said Section is in two parts. The first limb pertains to the reception of the document in evidence when the document is not duly stamped. The second limb, however, pertains to acting upon the said document. The bar contained in Section 35 of the Act is an absolute bar and it is two fold-firstly it prohibits the reception of an instrument which has not been duly stamped and secondly it inhibits the authority which is expected to receive the same to act upon the same. Section 36 of the Act, however, reads that when an instrument has been admitted in evidence without taking any objection in accordance with Section 35, such admission shall not be called in question at any stage of the suit or proceeding on the ground that the instrument has not been duly stamped. Section 36 of the Act, however, reads that when an instrument has been admitted in evidence without taking any objection in accordance with Section 35, such admission shall not be called in question at any stage of the suit or proceeding on the ground that the instrument has not been duly stamped. A combined reading of both the Sections would show that what was not admissible under the mandatory provisions of Sec. 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 proceeding subsequently. Therefore, what section 36 speaks of, in my considered view, is in regard to the original document itself. A combined reading of Section 35 and 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.” 15. In C. Sreedhara Raju V. S. Vittoba Rao AIR 2005 A.P., 322 the decision Akkam Laxmi (cited 6 supra) was followed. The learned Judge of this Court while dealing with the aspect whether the Court is under an obligation to send the Xerox copy of the document to the competent Authority i.e., the R.D.O., upon an application under Section 32 of the Indian Stamp Act, came to the conclusion that the document in dispute would not fall under the definition of “instrument” within the meaning of Section 2 (14) of the Indian Stamp Act. 16. In the light of the view expressed by this Court in the decisions referred to supra, inasmuch as, the Xerox copy of the document in question would not fall within the meaning of instrument, the said document cannot be received as evidence even on condition of the payment of Stamp Duty and Penalty for the reason that there is no question of such document being sent either for the purpose of impounding or collecting the stamp duty and penalty on such document, since such document would not fall within the definition of instrument. 17. 17. Hence, the order impugned in the present Civil Revision Petition cannot be sustained and accordingly, the impugned Order is hereby set aside. The Civil Revision Petition is allowed. No order as to costs.