JUDGMENT Mr. Rakesh Kumar Jain, J. (Oral) - This revision petition is directed against the order dated 27.03.2012 by which an application filed by the petitioner as defendant No.1 for leading secondary evidence of a receipt purported to have been executed in his favour by Balbir Singh as defendant No.2 as landlord in regard to the premises in dispute accepting the petitioner as a tenant therein, has been declined. 2. In brief, the plaintiff filed a suit for possession of a house bearing No.18-B, Udham Singh Nagar, measuring 380 square yards, also prayed for permanent injunction to restrain the defendants from making additions/alterations and for recovery of Rs.3,60,000/- as damages and compensation on account of illegal, unauthorized and forcible occupation at the rate of Rs.20,000/- per month as mesne profits. 3. The defendant No.1/petitioner in his written statement has alleged at the preliminary objection No.2 that plaintiffs have filed the suit in connivance with defendant No.2, who had let-out the property to him in September, 1994 by way of an oral tenancy and issued a receipt of the rent paid by him on 18.09.1994 but the said receipt was lost on 27.08.1997 and a report thereof was lodged with the police on 30.08.1997. It was, thus, alleged that the possession of defendant No.1 in the demised premises is not illegal but permissive. 4. The petitioner filed an application on 01.03.2012 in order to lead secondary evidence of receipt of rent having been paid to defendant No.2 of an amount of Rs.18,000/- paid in advance as rent of 6 months at the rate of Rs.3,000/- per month and it was alleged therein that the receipt was lost on 27.08.1997 by the petitioner while he was coming from the hospital as the bag containing documents fell on the way. 5. The application was contested by the plaintiffs by filing their reply dated 15.03.2012 in which besides other objections, it was alleged that the receipt cannot be allowed to be produced by way of secondary evidence, as it is a photocopy and it does not carry requisite stamps. The learned trial Court dismissed the application on both accounts and hence the present revision petition. 6. Learned counsel for the petitioner has vehemently argued that as per Section 63 of the Indian Evidence Act, 1872 there are 5 circumstances in which the secondary evidence can be led. The learned trial Court dismissed the application on both accounts and hence the present revision petition. 6. Learned counsel for the petitioner has vehemently argued that as per Section 63 of the Indian Evidence Act, 1872 there are 5 circumstances in which the secondary evidence can be led. It is also submitted that whether the petitioner would be able to prove with the aid of the receipt that he is in permissive or unauthorized possession, would be a matter of decision after considering other evidence on record, but the learned trial Court has erred in declining the prayer of the petitioner for leading secondary evidence to produce the receipt which has been lost by him and as a proof thereof, he has lodged a police complaint immediately. It is also submitted that since the original receipt has been lost, therefore, he is unable to comply with the provisions of Indian Stamp Act,1899 for making up the deficiency good which can always be made good within a period of 5 years, whereas the receipt was lost only 3 years back. 7. Learned counsel for the respondents, however, argued that the photostat copy of the receipt cannot be led as a secondary evidence and also the receipt is inadmissible because it has insufficient stamp. In support of his contentions he has relied upon two judgments of the Supreme Court titled as “Smt. J. Yashoda Vs. Smt. K. Shobha Rani [2007(2) Law Herald (SC) 1686] : 2007(2) R.C.R. (Civil) 840” and “Hariom Agrawal Vs. Prakash Chand Malviya [2007(4) Law Herald (SC) 3239] : 2007(8) SCC 514 ”. 8. I have heard the learned counsel for the parties and has examined the record carefully. 9. The basic issue in this case is as to whether the petitioner can be allowed to lead secondary evidence by producing photocopy of a receipt executed by defendant No.2 in his favour. It is not in dispute that the photocopy of receipt bears a revenue stamp of Rs.20 paisa which was allegedly executed on 18.09.1994. As per Article No.53 of Schedule I of Indian Stamp Act, 1899, dealing with the receipt as defined under Section 2(23) of the Act, any money or other property amount or the value of which exceeds Rs.500/- has to bear a stamp of Rs.1 with immediate effect from 13.10.1994. As per Article No.53 of Schedule I of Indian Stamp Act, 1899, dealing with the receipt as defined under Section 2(23) of the Act, any money or other property amount or the value of which exceeds Rs.500/- has to bear a stamp of Rs.1 with immediate effect from 13.10.1994. Since, the receipt was executed after the amendment of 13.05.1994, therefore, it should have carried a receipt of Rs.1 instead of 20 paisa. It is not in dispute also that the amount involved in the receipt is more than Rs.500/- as according to the petitioner it was pertaining to rent having been paid to the tune of Rs.18,000/- to defendant No.2. In this regard, the judgment in the case of Hariom Agarwal (supra) has to be seen, in which the Hon’ble Supreme Court has held as under:- “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 within the meaning of Section2(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.” 10. Insofar as the photocopy of receipt is concerned the document is coming from the custody of the petitioner himself and has not been executed by the plaintiffs/petitioner. It is said to be executed by defendant No.2 in his favour having an authority of the plaintiffs. It is nowhere mentioned in the written statement as to how defendant No.2 is exercising the authority over the property in dispute on behalf of the plaintiffs, who are the residents of USA. It is said to be executed by defendant No.2 in his favour having an authority of the plaintiffs. It is nowhere mentioned in the written statement as to how defendant No.2 is exercising the authority over the property in dispute on behalf of the plaintiffs, who are the residents of USA. Had the document been coming from the custody of the Government, it could have been comparable, but it is a document which is coming from the possession of the petitioner who could have always send a notice under Section 66 of the Act to defendant No.2 to produce the counter-foil of the said receipt, but no action was taken by him in this regard. 11. In this view of the matter, I would rely upon the judgment titled as “Smt. J. Yashoda Vs. Smt. K. Shobha Rani” in which the following observations have been made:- “Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence “means and includes” and then follow the five kinds of secondary evidence.” 12. No other arguments have been raised. 13. In view of the aforesaid discussion, I do not find any merit in the present petition and the same is hereby dismissed. ---------0.B.S.0------------ ————————