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2011 DIGILAW 1297 (RAJ)

Kamlesh Chanwala v. Khema @ Khemchand

2011-07-05

PREM SHANKER ASOPA

body2011
Hon'ble ASOPA, J.—Heard learned counsel for the petitioner. 2. By this writ petition, the petitioner-plaintiff has challenged the order dated 11.2.2011 passed by the Distt. Judge, Tonk in Civil Suit No. 46/2006 by which the application filed by the petitioner under Order 11 Rule 12 CPC and Sec. 65 and 66 Evidence Act, has been rejected. 3. The first part of the application relating to Order 11 Rule 12 CPC of calling the notarized agreement dated 6.4.2004 was rejected on the ground that the respondent-defendants have denied possession of the original document. 4. The second part of the application for production of secondary evidence u/S. 65 and 66 of the Evidence Act with regard to the said notarized agreement was rejected on the ground that the original document in question, of which a photo stat copy has been produced, is on simple paper in which no stamp is affixed nor the same is registered and further, unstamped agreement of sale is not admissible in evidence, therefore, the agreement is not admissible in evidence. While rejecting the second part of the application, the trial Court has placed reliance on the judgment of this Court in Shankar Lal & Ors. vs. The Civil Judge (Jr. Division), Shahpura & Ors. ( 2006(3) WLC 421 = RLW 2006(3) Raj. 2049) which has been referred by the trial Court without referring the page number as 2006(3) RLW and Champa Lal vs. Panna Lal (1951 RLW 258). 5. Submission of counsel for the petitioner is that as per proviso (e) to Sec. 39 of the Act, copy of any instrument or of an oral account of the contents of any instrument, is admissible in evidence if the stamp duty or a deficient portion of the stamp duty and penalty as specified in clause (a) is paid. Counsel further submits that copy means photo stat copy, typed copy or any other copy, therefore, the said document could have been impounded for the purpose of payment of proper stamp duty and was further admissible in evidence. Although the said point has not been raised before the trial Court but the counsel submits that since it is a legal question, he may be allowed to raise this point before this Court. 6. I have gone through record of the writ petition and further considered the aforesaid submissions. 7. Although the said point has not been raised before the trial Court but the counsel submits that since it is a legal question, he may be allowed to raise this point before this Court. 6. I have gone through record of the writ petition and further considered the aforesaid submissions. 7. Before proceeding further, it is relevant to quote the provisions of Sec. 39 of the Rajasthan Stamp Act, 1988 (in short `the Act of 1988') as also Paras 23, 24, 28 of Shankar Lal and others V. The Civil Judge and others 2006 (3) WLC 421 . The same are as under: Sec. 39 "39. Instruments not duly stamped inadmissible in evidence, etc.- No instrument chargeable with duty under this Act shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped: Provided that,- (a) any such instrument shall, subject to all just exceptions, be admitted in evidence on payment of,- (i) the duty with which the same is chargeable, or in the case of an instrument insufficiently stamped, of the amount required to make up such duty, and (ii) a penalty of one hundred rupees, or, ten times the amount of deficient portion thereof, whichever is higher. (b) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped; (c) nothing herein contained shall prevent the admission of any instrument as evidence in any proceeding in a criminal court, other than a proceedings under Chapter IX or Part D of Chapter X of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974). (d) nothing herein contained shall prevent the admission of any instrument in any court when such instrument has been executed by or on behalf of the Government or where it bears the certificate of the Collector as provided by section 36 or any other provision of this Act; (e) nothing herein contained shall prevent the admission of a copy of any instrument or of an oral account of the contents of any instrument, if the stamp duty or a deficient portion of the stamp duty and penalty as specified in clause (a) is paid; (f) nothing herein contained shall prevent the admission of any instrument in evidence in any court when stamp duty on such instrument has already been paid in advance in the form a consolidated lump sum; (f) nothing herein contained shall prevent the admission of any instrument in evidence in any court when stamp duty on such instrument has already been paid in advance in the form consolidated lump sum; (g) nothing herein contained shall prevent the admission of any instrument in any court when such document has been executed by or on behalf of the Government or where it bears the Certificate of the Collector as provided by section 36 or any other provision of this Act. Paras 23, 24, 28 of Shankar Lal and others vs. The Civil Judge and others 2006 (3) WLC 421 . "23. Here in the instant case, there is no mention of the said document of the year 1929 in the plaint and further no FIR was lodged for lost of the same and the case of the defendants-respondents is that the same is forged. (1) Whether when the original document is inadmissible in evidence on account of insufficiently stamped and unregistered conveyance sale, secondary evidence can be allowed to prove title: There is no dispute between the parties that as per the law in existence in the calendar year 1929 when the aforesaid transaction was reduced in writing for transfer of immovable property, it was required to be stamped as per Entry No. 13 of Schedule-1 of the Jaipur Stamp Act, which came into force on 1.3.1927 and the same is not stamped as per the said Act. Further the said document was also required to be compulsorily registered but the same was not registered under Hidayat No. 22 and Jaipur Registration Act, 1944. Further the said document was also required to be compulsorily registered but the same was not registered under Hidayat No. 22 and Jaipur Registration Act, 1944. Under the Stamp Law of Jaipur Stamp Act, the definition of instrument under Section 3(12) and the definition of instrument under Section 2(14) of the Indian Stamp Act, 1899 is same. As per the provision of law existed at the relevant time, the document in question was required to be stamped and compulsorily registered but the same is insufficiently stamped and unregistered, therefore, in view of the aforesaid position of law, settled in Champalal vs. Pannalal (supra), Sawa vs. Kuka (supra), Jupudi Kesava Rao vs. Pulavarthi Venkata Subbarao and others (supra) and Dr. Shiv Kant Pandey and another vs. Ishwari Singh (supra) that when the original is inadmissible in evidence and no secondary evidence can be allowed to be led, therefore, in my view, the trial Court has not committed any kind of error in rejecting the application for leading secondary evidence to prove title. (2) In case the aforesaid question No. 1 is answered in negative, then whether a photocopy of the unstamped and unregistered document can be considered for the purpose of impounding the document and further considered for the purpose of seeing the collateral purposes: 24. There is difference with regard to the admissibility of a unstamped and unregistered document of sale of immovable property unless the original document unstamped or insufficiently stamped is impounded and deficit stamp duty is paid with penalty, the same cannot be taken in evidence. The photocopy of the unstamped or insufficiently stamped document also cannot be impounded in view of the aforesaid judgment of the Supreme Court in Jupudi Kesava Rao vs. Pulavarthi Venkata Subbarao and others (supra). The definition of instrument under Sec. 2(14) of the Indian Stamp Act, 1899 will cover original instrument and not the photocopy of the instrument. The said definition is parameteria with the definition of instrument under Sec. 3(12) of the Jaipur Stamp Act. The definition of instrument under Sec. 2(14) of the Indian Stamp Act, 1899 will cover original instrument and not the photocopy of the instrument. The said definition is parameteria with the definition of instrument under Sec. 3(12) of the Jaipur Stamp Act. Therefore, under no circumstance a photocopy of the unstamped document can be admitted in evidence but as regards unregistered document, the original of which can be seen for the collateral purposes, then secondary evidence of unregistered document is admissible for collateral purposes as held by this Court in Rahim Bux vs. Illahi Bux and another (supra) wherein earlier judgments of this Court in Sawa vs. Kuka (supra) and Lachmi Narain vs. Kalya, AIR 1960 Raj. 1 have been considered on the ground that once primary evidence of unregistered document is receivable for collateral purpose of proving nature of possession, then after necessary condition for adducing secondary evidence of such document exists then the same can be taken. 28. The trial Judge has considered the fact that the alleged writing and 'patta' issued by Thikana Shahpura has not been mentioned in the plaint. He also considered that no justification has been given for not filing the original writing. Otherwise also, the defendants have come out with the categorical case that the document in question is forged and the entire story has been concocted to lead secondary evidence. In these facts and circumstances, the present photocopy of the document does not satisfy the requirement of Section 65 of the Evidence Act, therefore, I agree with the findings of the trial Judge." 8. Having considered the aforesaid submissions and considered the provisions of law quoted above, this Court is of the view that the defendant-respondent has denied possession of the document in question and further, the plaintiff-petitioner has not been able to make out existence of the document, therefore, secondary evidence was rightly refused after considering the aforesaid cases. As regards proviso (e) to Sec. 39 of the Act of 1988, the same is to be harmoniously considered with main Sec. 39 of the Act of 1988 and Sec. 65 and 66 of the Evidence Act, as interpreted by this Court in the aforesaid case of Shanker Lal. Otherwise also, law is well settled on the issue that proviso cannot be allowed to eat the main Section. Otherwise also, law is well settled on the issue that proviso cannot be allowed to eat the main Section. On consideration of the entire Section 39 of the Act of 1988, it is clear that the Legislature never intended to allow admissibility of un-stamped copy of the document. The trial Court acted within its parameters and has not committed any error in the exercise of its jurisdiction nor exceeded its jurisdiction and further acted within its parameters, therefore, no interference is called for under Article 227 of the Constitution of India. 9. The writ petition is dismissed.