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2008 DIGILAW 812 (AP)

Achuta Nageswara Rao v. Chundru Krishna Murthy

2008-09-23

P.S.NARAYANA

body2008
JUDGMENT: On 31.01.2006 the following order was made by this Court: "Ground Nos.8 (a) to (e) raised substantial question of law. Admit." The said grounds read as hereunder:- (1) Whether the original agreement of sale stood proved through the secondary evidence in the form of Ex.A-2 and the question of stamp duty on the original does not arise? (2) Whether the bar against receiving secondary evidence of unstamped documents extends to cases where the document is lost from the custody of the Court? (3) Whether the plaintiff can be made to suffer on account of the loss of the document, which has been sent to the Revenue Divisional Officer from the custody of the court on the principle of actus curiae neninem gravabit? (4) Whether the defendant can raise an objection with regard to insufficiency of stamp having acquiesced in stamping the copy of the document on consent of both the counsel? (5) Whether Ex.A-2 copy of the original document impounded can be looked into in view of the judgment reported in 1992(3) ALT 575 ? 2. This second appeal is filed by the unsuccessful plaintiff in O.S.No.140 of 1990 on the file of the Senior Civil Judge, Tadepalligudem, and A.S.No.83 of 2000 on the file of I Additional District Judge, West Godavari, Eluru. 3. Defendant No.1-respondent No.1 died even during pendency of the suit and the legal representatives were brought on record. Appellant-plaintiff instituted the suit praying for the relief of specific performance of contract of sale, dated 28.9.1987, and for an alternative relief for refund of sale consideration of Rs.36,000/- with interest at the rate of 18% per annum from the date of suit till realization. The learned Senior Civil Judge, Tadepalligudem, in the light of the respective pleadings of the parties having settled issues and additional issues, recorded the evidence of P.Ws.1 to 8, D.W.1, marked Exs.A-1 to A-4, Exs.B-1 to B-10 and came to the conclusion that the appellant- plaintiff is not entitled to any of the reliefs prayed for and accordingly dismissed the suit with costs. Aggrieved by the same, the matter was carried by way of appeal A.S.No.83 of 2000 on the file of I Additional District Judge, West Godavari, Eluru, and the appellate court having formulated points for consideration at para 14, recorded reasons in detail at paras 15 to 47 and ultimately dismissed the appeal with costs. Aggrieved by the same, the matter was carried by way of appeal A.S.No.83 of 2000 on the file of I Additional District Judge, West Godavari, Eluru, and the appellate court having formulated points for consideration at para 14, recorded reasons in detail at paras 15 to 47 and ultimately dismissed the appeal with costs. Aggrieved by the same, the present second appeal had been preferred. 4. The substantial questions of law on the strength of which the second appeal had been admitted already had been specified supra. 5. Contentions of Sri Venkateswarlu representing Sri Nimmagadda Satyanarayana: Sri Venkateswarlu learned counsel representing Sri Nimmagadda Satyanarayana, had taken this Court through the findings recorded by the trial court and also the appellate court and would maintain that appellant-plaintiff placed voluminous oral and documentary evidence, the evidence of P.Ws.1 to 8, Exs.A-1 to A-4 and as against this evidence, the evidence of D.W.1, the second defendant, alone is available on record and no doubt Exs.B-1 to B10 had been marked. The learned counsel also would maintain that the execution of the agreement of sale is not in serious controversy. The defence taken is one of coercion. The same had not been established, since the details and particulars relating to coercion also had not been pleaded in accordance with Order VI Rule 4 of the Code of Civil Procedure. The learned counsel also would maintain that the fact of non-giving of the reply had been taken as a serious ground, but in the light of the explanation offered this ground also is unsustainable. The counsel also would further maintain that the main ground on which the suit for specific performance had been dismissed is that Ex.A-2, the photostat copy of agreement, executed by defendant No.1 in favour of plaintiff is inadmissible in evidence and, hence, the suit for specific performance or the alternative relief on the strength of such document cannot be maintained. The learned counsel would maintain that this is not a case where the very suit was instituted on the strength of secondary evidence. This is a suit where the plaintiff instituted the suit for the relief of specific performance and the alternative relief of refund of consideration on the strength of original agreement of sale. The learned counsel would maintain that this is not a case where the very suit was instituted on the strength of secondary evidence. This is a suit where the plaintiff instituted the suit for the relief of specific performance and the alternative relief of refund of consideration on the strength of original agreement of sale. At the stage of impounding, the learned Senior Civil Judge, Tadepalligudem, was informed that the document was lost in the revenue office and a request was made to send a copy of the said document for the purpose of impounding and further it was stated that appropriate disciplinary action would be taken as against the erring personnel in this regard. The learned counsel also would maintain that it is also pertinent to note that even at the time of marking this document, no objection had been taken by the respondents and having consented for marking of the document, since the respondents also were conscious of these events, now such objection cannot be taken and both the court of first instance and also the appellate court totally erred in coming to the conclusion that the suit for specific performance cannot be maintained on the strength of Ex.A-2, the same being a photostat copy of agreement-secondary evidence. This is impermissible in law. The learned counsel also would maintain that it is not as though the fault was on the part of the party. When the fault was otherwise, that cannot be put as against the plaintiff and the plaintiff cannot be non-suited on that ground. While further elaborating his submissions, the learned counsel also pointed out to the findings recorded by the court of first instance and also the findings recorded by the appellate court, the learned counsel in all fairness would submit that no doubt there is some discussion relating to the oral evidence by the court of first instance, but the appellate court had not touched the oral evidence at all, may be, for the reason that the appellate court was of the opinion that on the strength of Ex.A-2 the suit itself is not maintainable and, hence, without appreciating the other oral and documentary evidence available on record in elaboration, findings had been recorded by the appellate court confirming the findings of the trial court. The learned counsel also would maintain that the other reason, which had been recorded, is non-giving of reply to the notice. Except this fact, though voluminous oral and documentary evidence is adduced on behalf of appellant-plaintiff, the same had been left untouched. The counsel also emphasizes that as against this evidence, the evidence of D-2 and D-2 alone is available. No doubt, the documents Exs.B-1 to B-10 also had been marked. The learned counsel also placed strong reliance on several decisions and made certain further submissions distinguishing the decisions, which had been relied upon by the respondents in this regard. 6. Contents of the counsel for respondents Sri Chalapati Rao, representing Sri V. Brahmaiah Chowdary:- Sri Chalapati Rao, learned counsel representing Sri V. Brahmaiah Chowdary, the counsel for respondents would maintain that this is a suit for specific performance and no doubt alternative relief of refund also had been prayed for. Concurrent findings had been recorded by both the trial court and the appellate court as well and, hence, normally in a suit for specific performance the discretion was exercised by the courts below in refusing the relief, as such concurrent findings not to be disturbed in a second appeal. While further elaborating his submissions the learned counsel also would maintain that whatever may be the reasons in the light of the definition of the "instrument" the question of impounding a copy of the document would not arise at all in the light of the even Indian Stamp Act and, hence, the mere fact that such copy had been obtained by the revenue officials for the purpose of impounding would not alter the situation in any way, since such document is inadmissible. Whether an objection had been taken in this regard or not, it would not seriously alter the situation, since this is not a curable defect and it is an illegality and, hence, the courts below arrived at the correct conclusion in recording findings that the suit for specific performance cannot be maintained on the strength of such document Ex.A-2. While further elaborating his submissions the learned counsel also would maintain that it is not as though the relief of specific performance had been negatived only on the ground of inadmissibility of Ex.A-2 other factual findings also had been recorded the trial court recorded findings in detail inclusive of non-giving of any reply. While further elaborating his submissions the learned counsel also would maintain that it is not as though the relief of specific performance had been negatived only on the ground of inadmissibility of Ex.A-2 other factual findings also had been recorded the trial court recorded findings in detail inclusive of non-giving of any reply. The appellate court while confirming the findings, no doubt, had not dealt with all the aspects in detail, but however, inasmuch as the appellate court had recorded the concurrent findings, the approach adopted by the trial court in this regard cannot be found fault. While further elaborating his submissions, the learned counsel had drawn attention of this Court to the definition of instrument and Indian Stamp Act and relied on several decisions and would maintain that in the light of the same, the findings recorded by the courts below not to be disturbed in second appeal. The learned counsel also made serious attempt to distinguish the decisions relied upon by the counsel representing the appellant-plaintiff on facts. 7. Heard the counsel, perused the oral and documentary evidence available on record, the findings recorded by the court of first instance and also the findings recorded by the appellate court as well. 8. For the purpose of convenience, the parties hereinafter would be referred to as plaintiff and defendants as shown in O.S.No.140 of 1990 on the file of the Senior Civil Judge, Tadepalligudem. 9. The plaintiff filed the suit for the relief of specific performance of agreement of sale, dated 28.9.1987, and also for the alternative relief of refund of sale consideration. The averments made in the plaint are as hereunder. Defendant No.1 represented to the plaintiff that he purchased the schedule property in court auction in execution of a decree in E.P.No.297 of 1983 in O.S.No.263 of 1977 on the file of the District Munsif Court, Tadepalligudem and obtained a sale certificate on 26.10.1984 and that he was in need of money for agricultural investment and offered to sell the schedule property. The plaintiff agreed to purchase the schedule property and bargain was settled at Rs.36,000/-In the presence of elders, the first defendant executed an agreement of sale on 28.9.1987 in favour of the plaintiff for a sum of Rs.36,000/- which was scribed by Zilla Seetharamarao and attested by other persons including defendant No.2, son of defendant No.1, and delivered possession of the same. It was agreed that the first defendant shall execute the sale deed at the expenses of the plaintiff and get the same registered by 09.10.1987 in the name of the plaintiff or his nominee. Ever since the date of agreement of sale, the plaintiff was cultivating Paddy Ac.2-00 raising other crops. It is further averred that the first defendant with ulterior motive got the notice issued stating that the first defendant was forced to sign on stamp papers under threat of his life on 15.11.1987. After giving instructions to his previous advocate to give reply to the said legal notice and after efforts of mediation, which proved futile, the plaintiff filed the suit for specific performance of the suit contract dated 28.9.1997. 10. The first defendant filed written statement and the second defendant filed a memo of adoption adopting written statement of first defendant. Defendants 3 and 4 also filed a memo adopting the written statement of first defendant. It is needless to say that first defendant died during the pendency of the suit itself and the legal representatives were brought on record. It was pleaded by the first defendant in the written statement as hereunder. The material averments made in the plaint had been denied. It was also pleaded that it is true that the first defendant purchased the plaint schedule property in court auction and after obtaining sale certificate took delivery of the same. The first defendant never offered to sell the plaint schedule property to the plaintiff for Rs.36,000/- or any other amount. On 15.11.1987 at 4-00 p.m. when the defendants were at the suit land, Achuta Krishnarao, Zilla Sitarama Rao and nearly 30 to 35 persons formed into an unlawful assembly, armed with sticks and knives, caught hold of the first defendant, took him to a Tamarind tree on the canal bund, tied him to the tree, pulled the record bag out and forcibly obtained signatures of the defendants with ante-date on a prepared matter as if the first defendant sold the property to the plaintiff. After some time defendant No.1 gave a report to the Station House Officer, Ananthapalli by registered post and the investigation particulars were not known till now. The defendants had not received any money from the plaintiff and never executed any sale agreement on 28.9.1987 and the first defendant never delivered possession of the schedule property. After some time defendant No.1 gave a report to the Station House Officer, Ananthapalli by registered post and the investigation particulars were not known till now. The defendants had not received any money from the plaintiff and never executed any sale agreement on 28.9.1987 and the first defendant never delivered possession of the schedule property. The plaintiff had no capacity to pay such huge amount. The plaintiff was not in possession and enjoyment of the plaint schedule property. Defendant No.1 filed O.S.No.162 of 1989 against the plaintiff and five others for permanent injunction restraining them from ever interfering with his possession of the schedule property. All of them, including the plaintiff, remained ex parte and a decree for permanent injunction was passed on 01.12.1985. The plaintiff got filed A.T.C.No.14 of 1985 by Sri Ayanaparthy Gangayya, who claimed as cultivating tenant of the suit schedule land, and the said tenancy petition was also dismissed on 23.7.1987. There was no demand by the plaintiff to execute any sale deed. The plaintiff approached the Collector for a certificate and his visits to Collector's office were all false and concocted. As the plaintiff had received notice on 25.11.1987, which was issued on his behalf, the suit itself was barred by time. There was no cause of action for the plaintiff to file the suit. 11. On the strength of these pleadings, the following issues were settled. (1) Whether the suit agreement dated 28.9.1987 is true and is supported by consideration and is valid? (2) Whether the plaintiff is in possession of plaint schedule property? (3) Whether the plaintiff is entitled for specific performance of the agreement dated 28.9.1987 or for the refund of Rs.36,000/- and interest thereon and at what rate of interest? (4) Whether the plaintiff is entitled for the relief of permanent injunction? (5) To what relief? As per the order made in I.A.No.1462 of 1999, dated 16.12.1999, an additional issue also had been framed. "Whether the suit is barred by limitation?" 12. On behalf of plaintiff P.Ws.1 to 8 were examined, Exs.A1 to A-4 were marked. On behalf of defendants D.W.1 was examined, Exs.B-1 to B-10 were marked. 13. (5) To what relief? As per the order made in I.A.No.1462 of 1999, dated 16.12.1999, an additional issue also had been framed. "Whether the suit is barred by limitation?" 12. On behalf of plaintiff P.Ws.1 to 8 were examined, Exs.A1 to A-4 were marked. On behalf of defendants D.W.1 was examined, Exs.B-1 to B-10 were marked. 13. The trial court on appreciation of the evidence available on record had referred to Sections 35 and 36 of the Indian Stamp Act and also Section 65 of the Indian Evidence Act and further relied upon several decisions which had been cited by the counsel on record and observed at para 21 that since Ex.A-2 is inadmissible in evidence, the evidence of P.Ws.1 to 6 cannot be considered and further held that the plaintiff is not entitled to claim the relief of specific performance. However, having observed so, the trial court also further recorded reasons in detail commencing from paras 22 to 40 and ultimately dismissed the suit with costs. The plaintiff, aggrieved of the same, carried the matter by way of appeal A.S.No.83 of 2000 on the file of I Additional District Judge, West Godavari, Eluru. The appellate court at para 14 formulated the following points for consideration. (1) Whether the suit agreement dated 28.9.1987 is true, valid and supported by consideration? (2) Whether the lower court is justified in holding that the Xerox copy of the suit agreement of sale (Ex.A-2) dated 28.9.1987 is not admissible under Sections 35 and 36 of the Indian Stamp Act? (3) Whether the plaintiff is entitled to the decree for specific performance of the suit agreement Ex.A-2 dated 28.9.1987? (4) Whether the plaintiff is entitled to the alternative relief for the refund of Rs.36,000/- and interest thereon as prayed for? (5) Whether the plaintiff is entitled to perpetual injunction in respect of the suit property against the defendants? (6) To what relief? (4) Whether the plaintiff is entitled to the alternative relief for the refund of Rs.36,000/- and interest thereon as prayed for? (5) Whether the plaintiff is entitled to perpetual injunction in respect of the suit property against the defendants? (6) To what relief? The appellate court recorded reasons in detail, referred to the relevant provisions of the Indian Stamp Act and also the Indian Evidence Act, relied on several decisions and ultimately came to the conclusion that Ex.A-2 being inadmissible, on the strength of such document a suit for specific performance cannot be maintained, but however, the appellate court also recorded certain further reasons that the plaintiff had not chosen to give any reply notice to Ex.A-3 dated 16.11.1987 and ultimately confirmed the findings of the court of first instance. Though the appellate court had referred to the interested testimony of P.W.7 while answering point No.5 and also referred to the evidence of P.W.6 and P.W.3 in the context of Ex.A-3 legal notice and other circumstance, it is not in serious controversy between the parties that the voluminous oral evidence available on record had not been discussed at length for the reason that the appellate court was of the opinion that the suit itself is not maintainable on the strength of Ex.A-2. In such circumstances, the present second appeal had been preferred. Sri Chalapati Rao learned counsel representing contesting respondents also placed written submissions before this Court apart from making oral submissions. 14. The respective pleadings of the parties, the issues and the additional issue settled by the court of first instance and also the point for consideration formulated by the appellate court and the findings recorded by the courts below in brief already had been referred to above. 15. The plaintiff originally filed the suit for the relief of specific performance of agreement of sale and also alternative relief of refund of sale consideration in relation to the plaint schedule property as against defendants 1 and 2 and during the pendency of the suit, as already referred to above, the first defendant died and the wife and daughter, defendants 3 and 4, were also impleaded as legal representatives and, thus, at present the legal representatives of the deceased first defendant are prosecuting the litigation. 16. 16. There is no dispute that the first defendant purchased the plaint schedule property in auction held in court in execution of decree in E.P.No.297 of 1983 in O.S.No.263 of 1977 on the file of the District Munsif Court, Tadepalligudem and obtained sale certificate in his favour on 26.10.1984. It is also the case of the plaintiff that the first defendant offered to sell the plaint schedule property to him as the plaint schedule property is at another village other than his residential village and money is required for his agricultural investment and, therefore, agreed to purchase the entire plaint schedule property for a total consideration of Rs.36,000/- and accordingly the first defendant having received Rs.36,000/- from him and executed an agreement of sale in his favour on 28.9.1987 under the original of Ex.A-2. P.W.3 was the scribe; P.W.2, P.W.4, P.W.5 and P.W.6 are the attestors of original of Ex.A-2. It is also the case of the plaintiff that on the date of original of Ex.A-2 itself possession had been delivered. It is no doubt true that when the total consideration as such had been paid, why P.W.1, the plaintiff, had not obtained a registered sale deed. This aspect is more concerned with the merits and demerits of the matter. However, the principal question which had been argued in elaboration by the counsel on record is in relation to the dismissal of the suit on the ground that the Xerox copy of agreement of sale, Ex.A-2, which had been impounded by the Revenue Divisional Officer, is not admissible in evidence in the light of the provisions of Sections 35 and 36 of the Indian Stamp Act. 17. It may be appropriate to have a look at what had been observed by the appellate court in this regard. "Now turning to the point, result of the suit for specific performance, based on the Xerox copy of the suit agreement of sale (Ex.A-2) dated 28.9.1987, mainly rests on the admissibility or otherwise of Ex.A-2 with reference to the Sections 35 and 36 of the Indian Stamp Act. "Now turning to the point, result of the suit for specific performance, based on the Xerox copy of the suit agreement of sale (Ex.A-2) dated 28.9.1987, mainly rests on the admissibility or otherwise of Ex.A-2 with reference to the Sections 35 and 36 of the Indian Stamp Act. It is the claim of the appellant (plaintiff) that along with the plaint, the original of Xerox copy of agreement of sale dated 28.9.1987 (Ex.A-2) was filed, that as the original agreement of sale was not duly stamped, the said document was sent to the District Collector for purpose of impounding the said document; that at the time of trial, when the said original agreement of sale was sought to be returned, the office of the District Collector, W.G. District, Eluru, under its letter dated 16.1.1999, informed the Senior Civil Judge, Tadepalligudem that the said agreement of sale was misplaced, for which the disciplinary action was being initiated against the concerned and requested the court to send duplicate copy of the sale agreement dated 28.9.1987 for impounding and levy of the deficit stamp duty and that therefore, the Xerox copy of the suit agreement of sale (Ex.A-2), which was also filed along with the plaint, was sent to the Revenue Divisional Officer for purpose of stamp duty and penalty in pursuance of the orders of this court, that accordingly Ex.A-2 document was impounded and that the said Xerox copy of the suit agreement of sale, which was impounded, was marked as Ex.A-2 during the evidence and that having not raised any objection for marking Xerox copy of the suit agreement of sale (Ex.A-2), which was impounded, it cannot be subsequently contended that the suit document (Ex.A-2) is not admissible under law and that, therefore, he lower court erred in holding that Ex.A-2 is hit by Sections 35 and 36 of the Indian Stamp Act and consequently the suit based thereon is not maintainable." 18. No doubt, several decisions had been relied upon by the appellate court and except referring to certain witnesses and making stray observations, the voluminous oral evidence available on record had not been considered in elaboration, may be for the reason that the appellate court though that it may not be necessary to deal with other evidence available on record in elaboration, since the suit itself is not maintainable on the strength of Ex.A-2. 19. 19. Here is a case where the suit was instituted on the strength of the original of agreement of sale. It is no doubt true that it is the case of the plaintiff that the total consideration was paid and agreement of sale was obtained as already observed above, why a registered sale deed was not obtained by the plaintiff; it is a matter to be gone into at the time of deciding the matter on merits. The plea of coercion had been taken. Except the evidence of D.W.1 and relying upon certain documents (Exhibits B-series) no further evidence had been adduced. Voluminous oral evidence had been adduced on behalf of the plaintiff. 20. Reliance was placed on the decision in P. Balraj and others V. A. Pochaiah and others1 wherein the learned Judge of this Court held that original agreement of sale filed by the party sent to Sub-Registrar by Court for ascertaining the value of the suit property for impounding document, levying stamp duty and penalty, document lost in Sub-Registrar's Officer, loss not attributable to parties default, photostat copy of document may be received as secondary evidence subject to payment of requisite stamp duty and penalty. 21. It is pertinent to note that the suit was instituted on the strength of original agreement of sale and the same was lost in the Revenue Office and on a request made by the Revenue Office at the time of impounding a copy had been submitted and the said copy was impounded and while marking the document Ex.A-2 no objection had been taken. When already a document had been marked without any objection, in the light of Sections 35 and 36 of Indian Stamp Act whether such objection on the ground that this is only secondary evidence and the same is inadmissible can it be raised at a later stage. Reliance was placed on the decision in Isra Fatima Vs. Bismillah Begum2 wherein this Court at paras 8, 9, 10 and 11 observed as hereunder. "It is settled principle of law that once a document is admitted in evidence without objection, there cannot be any challenge as to its admissibility subsequently. In this context, it is necessary to extract section 36 of the Indian Stamp Act, 1899, which runs as follows: "36. "It is settled principle of law that once a document is admitted in evidence without objection, there cannot be any challenge as to its admissibility subsequently. In this context, it is necessary to extract section 36 of the Indian Stamp Act, 1899, which runs as follows: "36. Admission of instrument where not to be questioned: Where an instrument has been admitted in evidence such admission shall not except as provided in Section 61 be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped." Explaining the scope of Section 36 of the Stamp Act. The Supreme Court in Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655 , held as follows: "....Where a question as to the admissibility of a documents is raised on the ground that it has not been stamped, or has not been properly stamped it has to be decided then and there when the document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document in evidence, the matter is closed. Section 35 is in the nature of a penal provision and has far-reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case.................. Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of the witnesses, Section 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial Court itself or to a Court of Appeal or revision to go behind that order. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial Court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction." In P.C. Purushothama v. S. Perumal, AIR 1972 SC 608 , the Supreme Court while considering a similar question held that it is not open to a party to object to the admissibility of documents, which are marked as exhibits without any objection from such party. It is further observed that once a document is properly admitted, the contents of that document are also admitted in evidence though those contents may not be conclusive evidence. Similar view has been expressed by this Court in L. Sambasiva Rao v. Balakotaiah, AIR 1973 AP 342 , in the said case a small cause suit was filed on the basis of a promissory note which was not sufficiently stamped. No objection was taken by the office and the husband of the plaintiff went into the witness box as P.W.1 and the promissory note was marked as an exhibit during the course of his examination in chief without any objection. It was duly endorsed by the Presiding Officer as required by the Code of Civil Procedure. Thus it became an exhibit and part of the record. Thereafter during the course of examination of P.W.1, the insufficiency of the stamp on the promissory note was noticed and then an objection was raised as to the maintainability of the suit basing on such promissory note. The lower court found that the 1st defendant did in fact receive the consideration and held that Section 35 was only a bar to the admissibility of the unstamped or insufficiently stamped document and when it was admitted in evidence it cannot after wards be withdrawn. Consequently the suit was decreed. On a revision by the 2nd defendant this Court after referring to Section 36 of the Stamp Act held that in view of undoubted fact that the promissory note had been admitted in evidence, no objection could be raised at any stage of the suit that it was not duly stamped. Consequently the suit was decreed. On a revision by the 2nd defendant this Court after referring to Section 36 of the Stamp Act held that in view of undoubted fact that the promissory note had been admitted in evidence, no objection could be raised at any stage of the suit that it was not duly stamped. It is also held that since the promissory note had already become part of the record as one of the exhibits, the lower Court is right in decreeing the suit when it came to the conclusion that the promissory note was supported by consideration." 22. Reliance also was placed on the decision in Javer Chand Vs. Pukhraj Surana3 wherein the Apex Court observed as hereunder. "In our opinion, the High Court misdirected itself, in its view of the provisions of Section 36 of the Stamp Act. S.36 is in these terms:- "Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped." That section is categorical in its terms that when a document has once been admitted in evidence, such admission cannot be called in question at any stage of the suit or the proceeding on the ground that the instrument had not been duly stamped. The only exception recognized by the section is the class of cases contemplated by S.61 which is not material to the present controversy. S.36 does not admit of other exceptions. Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped it has to be decided then and there when the document is tendered in evidence. Once the Court rightly or wrongly, decides to admit the document in evidence so far as the parties are concerned the matter is closed. S.35 is in the nature of a penal provision and has far- reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. S.35 is in the nature of a penal provision and has far- reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. The record in this case discloses the fact that the hundis were marked as Exs.P-1 and Petitioner-2 and bore the endorsement 'admitted in evidence' under the signature of the Court. It is not, therefore, one of those cases where a document has been inadvertently admitted, without the Court applying its mind to the question of its admissibility. Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, S.36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction." 23. Reliance also was placed on the decision in Shyamal Kumar Roy Vs. Sushil Kumar Agarwal4 wherein the Apex Court at paras 12 and 19 observed as hereunder. "The agreement, as noticed hereinbefore, was executed in the year 1995. The applications purported to be under Section 151 of the Code of Civil Procedure, 1908 were filed by appellant only on 16.2.2005. The Development Agreement, as noticed hereinbefore, was admitted in evidence on 17.2.2003. The learned Trial Judge as also the High Court relied upon a decision of this court in Javer Chand (supra). The applications purported to be under Section 151 of the Code of Civil Procedure, 1908 were filed by appellant only on 16.2.2005. The Development Agreement, as noticed hereinbefore, was admitted in evidence on 17.2.2003. The learned Trial Judge as also the High Court relied upon a decision of this court in Javer Chand (supra). An attempt to distinguish the said decision of this Court was made, inter alia, on the premise that therein this Court was concerned with interpretation of the provisions of Marwar Stamp Act, 1947 in respect of two mudatti hundis, which have been admitted in evidence on payment of duty and penalty, but sought to be made inadmissible in evidence in terms of the provisions contained in the 1947 Act. This Court opined that once the said document was admitted in evidence, the new Act i.e., the 1947 Act would be inapplicable, stating: "Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial court itself or to a court of appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same court or a court of superior jurisdiction." What was necessary was that the document should be marked in presence of the parties and they had an opportunity to object to the marking of the document. The question of judicial determination of the matter would arise provided an objection is taken what document is tendered in evidence and before it is marked as an exhibit in the case. Before the learned Trial Judge, reliance was placed on a decision of a learned Single Judge of the Andhra Pradesh High Court in Vemi Reddy Kota Reddy v. Vemi Reddy Prabhakar Reddy. In that case there was nothing on record to show that the document was marked as an exhibit after an objection has been raised. The said case, therefore, has also no application to the facts of the present case." 24. In that case there was nothing on record to show that the document was marked as an exhibit after an objection has been raised. The said case, therefore, has also no application to the facts of the present case." 24. Reliance also was placed on the decision in Manepalli Udaya Bhaskara Rao Vs. K. Dharmaraju. 25. No doubt the counsel representing respondents had placed strong reliance on the decision of the Apex Court in Jupudi Kesava Rao Vs. Pulavarthi Venkata Subba Rao and others6 wherein it was held that in view of Sections 35 and 36, secondary evidence by way of oral evidence or copy of document insufficiently stamped is not admissible in a suit even though objection to its admissibility cannot be taken under Evidence Act. 26. This is a case where the suit itself was instituted on the strength of such document. In the present case the suit was instituted on the strength of original of agreement of sale, but the same was lost in the Revenue Office when the same was sent for impounding. Hence, the fault, if any, cannot be attributed to the party. The counsel also placed strong reliance on the decision in V. Chidambaram Chettiar and another v. M.A. Meyyappan Ambalam and others a Division Bench of Madras High Court while dealing with Section 35 of the Indian Stamp Act held that the section applies to stamping of original document and unstamped document produced in Court, mob setting fire to court and record destroyed, copy of document is not admissible even on payment of penalty. 27. In State of Bihar v. M/s. Karam Chand Thapar and Brothers Ltd., while following 26 Ind App 262 (PC) the Apex Court observed that under Section 35 of the Stamp Act there can be validation only of the original, when it is unstamped or insufficiently stamped. It is now well settled that the copy of an instrument cannot be validated. 28. Reliance also was placed on the decision in Hariom Agrawal v. Prakash Chand Malviya wherein the Apex Court at paras 8 and 13 observed as hereunder. It is now well settled that the copy of an instrument cannot be validated. 28. Reliance also was placed on the decision in Hariom Agrawal v. Prakash Chand Malviya wherein the Apex Court at paras 8 and 13 observed as hereunder. "It is clear from the decisions of this Court and a plain reading of Sections 33, 35 and 2 (14) of the Act that an instrument which is not duly stamped can be impounded and when the required fee and penalty has been paid for such instrument it can be taken in evidence under Section 35 of the Stamp Act. Sections 33 or 35 are not concerned with any copy of the instrument and party can only be allowed to rely on the document which is an instrument within the meaning of Section 2(14). There is no scope for the inclusion of the copy of the document for the purposes of the Indian Stamp Act. Law is now no doubt well settled that copy of the instrument cannot be validated by impounding and this cannot be admitted as secondary evidence under the Indian Stamp Act, 1899. Section 37 of the Act would be attracted where although the instrument bears a stamp of sufficient amount but such stamp is of improper description, as in the present case where the proper stamp duty of Re.1/- under the Act has not been paid but a notarized stamp of Rs.4/- was affixed on the document. The sufficient amount of the stamp duty has been paid but the duty paid by means of affixture of notarized stamp is of improper description. By virtue of Rule 19 of the Madhya Pradesh Stamp Rules, 1942, the Collector of Stamp is authorized to receive the proper stamp duty on an instrument which bears a stamp of proper amount but of improper description, and on payment of the adequate duty chargeable under the Act he would certify by endorsement on the instrument that the instrument is duly stamped. Under the proviso to the Rule, the Collector may pardon the further payment of duty prescribed in this Rule provided the person holding the original instrument moves the Collector within three months of the execution of the instrument for certification by endorsement and the "Collector is satisfied that the stamp of improper description was used solely on the account of the difficulty or inconvenience of the holder of the instrument to procure the adequate stamp duty required to be paid on the instrument. But the power under Section 37 and Rule 19, even after framing the rules by the State Government, could only be exercised for a document which is an instrument as described under Section 2(14). By various authorities of this Court, an instrument is held to be an original instrument and does not include a copy thereof. Therefore, Section 37 and Rule 19 would not be applicable where a copy of the document is sought to be produced for impounding or for admission as evidence in a case." 29. In Sri Yarlagadda Venkata Ramalinga Prasad Bahadur Zamindar v. Srimanthu Rajah Yarlagadda Sivaram Prasad Bahadur Zamindar10 it is held that Ex.B-7 which purports to be a copy had therefore to be stamped as an acknowledgment of receipt for the consideration of Rs.1,25,000/- as an agreement in respect of the distribution of the amount among the persons to whom it was paid and as document evidencing renunciation of the rights in the impartible estate. But it was not stamped. If the original document was produced in court it could have been rectified by payment of penalty. It is now settled law that the document which may be admitted in evidence on payment of penalty is the original document and not a copy thereof. 30. Reliance also was placed on the decision in Pulavarthi Venkata Subba Rao and another v. J. Kesavarao and others11 wherein the learned Judge of this Court while dealing with Sections 35 and 36 of the Indian Stamp Act observed as hereunder. "For the purpose of the first limb of section 35 of the Stamp Act, the document should be before the person authorized to receive evidence and only in such a case that the original can be admitted in evidence provided deficit stamp duty is made up and the penalty is, paid and the procedure laid down in the above said sections is followed. It is only then that the document can be admitted in evidence. It is not necessary in all cases for the purpose of the second limb of section 35 that the document in original must be before the Court. The expressions "acted upon" and "for any purpose" are emphatically clear. They clearly point out that in no case if the document is insufficiently stamped, it can be acted upon unless the requirements of section 35 are fulfilled. Such an acting upon the instrument may be when the document is before the Court or even when it is not before the Court. In either case, it cannot be acted upon whether that instrument is proved by primary evidence by production of the document itself or by secondary evidence such as admissible under section 65 of the Evidence Act. In the first case, when the document is produced it can be admitted provided the requirements of section 35 are fulfilled. But if the document is not before the Court, when it is found that it is insufficiently stamped, admission of secondary evidence would practically amount to acting upon an insufficiently stamped document which is quite contrary to the imperative language of section 35. There are some circumstances under which section 65 of the Indian Evidence Act secondary evidence may be given in regard to the documents. But where the original is not duly stamped, it is now clear that no stamp duty or penalty can be levied upon any kind of secondary evidence. Section 35 of the Stamp Act requires the levy of penalty and stamp duty only in a case where the original is before the Court, that is to say, the stamp duty and penalty are leviable only on the original and not on secondary evidence. When that is not possible, when the original is either destroyed or even suppressed by anyone of the parties, no secondary evidence is possible in regard to such an unstamped or insufficiently stamped document. The reason is that the secondary evidence is only admissible where primary evidence is admissible. Furthermore, the admitting of secondary evidence of a document not only stamped would be equivalent to "acting upon" such documents which is prohibited by section 35. The reason is that the secondary evidence is only admissible where primary evidence is admissible. Furthermore, the admitting of secondary evidence of a document not only stamped would be equivalent to "acting upon" such documents which is prohibited by section 35. When once it is realized hat it is only the original of an instrument which can be admitted in evidence on payment of deficit duty and penalty, then it present no difficulty in reaching he conclusion that if the original is not before the Court and if it is insufficiently stamped no secondary evidence can be admitted even on payment of deficit duty and penalty. When the agreement was insufficiently stamped and was not before the Court and when no question of curing its defect by payment of deficit court-fee and penalty could arise, no parole secondary evidence was admissible. A reading of Section 36 would indicate that in order that this section may apply the instrument must have been admitted in evidence. "Admitted in evidence" means that the document must have been "let in" as part of the evidence. If the document is not at all produced, no question of its admission in evidence arises. Section 36 is an exception to section 35 in so far as the first limb of section 35 is concerned and in some respects even in so far as second limb is also concerned. But if the original document is not before the Court and if it is found that it was insufficiently stamped and when no deficit duty or penalty can be realized admission of any oral secondary evidence merely on the ground that no objection was raised would practically amount to acting upon such a document, which is precluded by section 35. Section 36 therefore applies to a case where an instrument is actually produced and is admitted in evidence and not to a case where secondary evidence of an insufficiently stamped document is given without any objection." 31. Section 36 therefore applies to a case where an instrument is actually produced and is admitted in evidence and not to a case where secondary evidence of an insufficiently stamped document is given without any objection." 31. As can be seen from the findings recorded by the trial court and the appellate court though the trial court specifically recorded a finding that the plaintiff is not entitled to claim specific performance in view of the fact that Ex.A-2 is not admissible in evidence and it was observed that the evidence of P.Ws.1 to 6 need not be considered, certain details had been referred to and certain further findings as well had been recorded. The appellate court having formulated points for consideration after referring to several decisions which had been cited came to the conclusion that Ex.A-2 which is only a Xerox copy of original document though was impounded cannot be looked into for any purpose and cannot be acted upon. Just after referring to the oral evidence, without considering the oral evidence in detail came to the conclusion that the appeal is liable to be dismissed and accordingly dismissed the same. 32. Relating to the findings recorded by the trial court and the appellate court on the aspect of maintainability of the suit since Ex.A-2 is only a Xerox copy of the original document, the following under noted aspects may have to be taken into consideration. (1) It is not in serious dispute that the plaintiff filed original of Ex.A-2 into court. (2) It is also not in dispute that it was reported by the Revenue office to the effect that the same was lost or misplaced when such original agreement of sale had been sent for the purpose of impounding. (3) It is also not in controversy that at the request of Revenue Office, the Court had furnished the copy of the same and the same was duly impounded. (4) It is also not in controversy that no objection relating to the admissibility of Ex.A-2 on the ground that it is Xerox of original document even if it was impounded, the same cannot be marked, had not been taken by the respondents-defendants, may be for the reason that the respondents-defendants also were conscious of all the happenings. (4) It is also not in controversy that no objection relating to the admissibility of Ex.A-2 on the ground that it is Xerox of original document even if it was impounded, the same cannot be marked, had not been taken by the respondents-defendants, may be for the reason that the respondents-defendants also were conscious of all the happenings. (5) When the plaintiff-party was not at fault, such party cannot be penalized for the fault of the court or the Revenue Office. (6) It is also not in controversy that the lands are located in different village. 33. In the light of the aforesaid aspects specified above, this Court is of the considered opinion that the findings recorded both by the court of first instance and also the appellate court to the effect that the suit for specific performance on the strength of Ex.A-2 Xerox copy of original agreement of sale cannot be maintained, inasmuch as the same had been marked without any objection, whatsoever, and after marking such contention cannot be put forth or such findings cannot be recorded. It is needless to say that it is one thing to say that the suit itself is not maintainable on the strength of a document, since the document is inadmissible in evidence. It is another thing to say that the relief cannot be granted on the strength of such document or such document cannot be believed in the facts and circumstances in a given case. 34. In the light of the facts and circumstances the following under noted aspects may have to be considered. (1) When the total consideration had been paid, why a registered sale deed could not be obtained by the plaintiff. (2) In the suit the alternative relief of refund also had been prayed for apart from the main relief of specific performance. (3) Why so many attestors had attested the original of Ex.A-2 also may have to be considered. (4) The plea of coercion had been spoken to by D.W.1. (5) The non-giving of reply was made a ground by both the courts. (6) The oral and documentary evidence had not been considered in elaboration, may be for the reason that view had been taken Ex.A-2 is inadmissible in evidence. (4) The plea of coercion had been spoken to by D.W.1. (5) The non-giving of reply was made a ground by both the courts. (6) The oral and documentary evidence had not been considered in elaboration, may be for the reason that view had been taken Ex.A-2 is inadmissible in evidence. (7) Merely because the execution of an agreement of sale had been pleaded always necessarily the relief of specific performance need not be granted the same being discretionary relief. 35. Be that as it may, inasmuch as on the principal ground that Ex.A-2 being only a Xerox of original document though subsequently impounded, that cannot be looked into for any purpose, the relief had been negatived by both the court of first instance and also the appellate court and in the light of the fact that trial court had considered other aspects also, but however, the appellate court had not discussed the other oral and documentary evidence in detail, this Court is inclined to set aside the decree and judgment made by the appellate court and make an order of remand. 36. On a careful analysis of the respective stands taken by the parties and also in view of the fact that the first defendant who had put in written statement being no more and the second defendant alone had entered into the witness box and examined himself as D.W.1, especially in the light of the plea of coercion, this Court is of the considered opinion that the parties be permitted to amend their respective pleadings if the parties choose to do so. In the light of the peculiar facts and circumstances and also in the light of the findings recorded, this Court also is of the opinion that liberty is given to both the counsel to let in further evidence on all the aspects, inclusive of the plea of coercion, if the parties choose to do so. 37. Accordingly, the decree and judgment of the appellate court are hereby set aside and the matter is remanded for the purposes specified above. Inasmuch as an order of remand is being made, the parties to bear their own costs. Let the appellate court decide the matter at the earliest point of time, preferably within a period of six months, from the date of receipt of a copy of this judgment.