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2022 DIGILAW 2042 (RAJ)

Laxmi Narayan v. Ranveer

2022-07-18

VINIT KUMAR MATHUR

body2022
JUDGMENT Vinit Kumar Mathur, J. - The present writ petition has been filed against the order dated 21.03.2017 passed by learned Additional District Judge No. 2, Hanumangarh, whereby the application preferred by the petitioner under Section 65 of the Indian Evidence Act, 1872 was rejected. 2. The facts of the present case in short are that the petitioner entered into an agreement to sale with the respondent on 24.04.2014. Since, the respondent failed to honour his commitment as agreed on 24.04.2014, the petitioner preferred a suit for specific performance of the contract. During the pendency of the suit, an application under Section 65 of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Act') was preferred by the petitioner for taking on record the photocopy of the agreement to sale which was executed between the petitioner and the respondent on 24.04.2014. This application for bringing on record photocopy of agreement to sale dated 24.04.2014 was rejected by the learned trial court on the ground that the original document was not properly stamped and, therefore, the photocopy of agreement to sale cannot be placed on record as secondary evidence. 3. Learned counsel for the petitioner submits that the learned trial court committed an error while rejecting the application preferred by the petitioner under Section 65 of the Act. He submitted that the application preferred by the petitioner squarely comes within the ambit of Clause (C) of Section 65 of Indian Evidence Act and, therefore, the learned trial court committed an error while rejecting the application on the ground that the original document was not properly stamped. He submits that even as per Section 49 of Indian Registration Act there is no requirement of the document to be registered as Section 49 carves out an exception of the document such as the document "Agreement to Sale" filed in the suit for specific performance. Learned counsel submits that even after taking on record the photocopy of the original agreement to sale dated 24.04.2014, the learned trial court is free to take the appropriate proceedings for sending the document for impounding, if the law permits. He submits that if this document is not brought on record, then the suit preferred by the petitioner itself will be redundant and the petitioner will be remediless. He submits that if this document is not brought on record, then the suit preferred by the petitioner itself will be redundant and the petitioner will be remediless. He, therefore, prays the writ petition may be allowed and order dated 21.03.2017 may be quashed and set aside and the learned trial court may be directed to take the photocopy of the agreement to sale dated 24.04.2014 on record. 4. Per contra, the learned counsel for the respondent while supporting the judgment dated 21.03.2017 passed by the learned trial court submits that no infirmity has been committed by the trial court while rejecting the application preferred by the petitioner as the original document was not sufficiently stamped and, therefore the lacuna of non-filing of the required stamped duty cannot be fulfilled by the photocopy of the document which is being filed on record. He submits that the deficiency which has been incurred is beyond repair and, therefore no interference is warranted by this court in the order dated 21.03.2017 passed by learned trial court. In support of his contention, he has relied upon the judgments of this court reported in 2008 (1) DNJ (Raj.) 217 Bhanwarlal v. the District Judge, Sirohi and 2008 (2) DNJ (Raj.) 1057 Kunnaram v. Civil Judge Parbatsar & Ors. 5. I have considered the submissions made at the bar and have gone through the relevant record of the case including the impugned order dated 21.03.2017. 6. The undisputed facts in the case are that the petitioner entered into an agreement to sale with the respondent on 24.04.2014 and since, the respondent failed to complete his commitment, the suit for specific performance of contract was filed by the petitioner before the learned trial court against the respondent. During the pendency of the suit, the original document of agreement to sale dated 24.04.2014 was lost by the petitioner for which a missing report was also filed by the petitioner in the Police Station at Ravatsar on 17.08.2014. In these circumstances, an application was preferred by the petitioner under Section 65 of the Indian Evidence Act for taking on record the photocopy of the agreement to sale dated 24.04.2014. The original document was on stamp of Rs. 100/-. In these circumstances, an application was preferred by the petitioner under Section 65 of the Indian Evidence Act for taking on record the photocopy of the agreement to sale dated 24.04.2014. The original document was on stamp of Rs. 100/-. The case of the petitioner will fall under Section 65(C) of the Indian Evidence Act which provides that the secondary evidence in relation to the documents may be given, if the original document has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. 7. Since the fact of the original document i.e. agreement to sale dated 24.04.2014 having being lost, is not disputed, therefore, the application preferred under Section 65 of the Act was perfectly in consonance with the law for bringing on record the photocopy of the agreement to sale dated 24.04.2014 and thus, the same should have been taken on record. It is also noted that if this document is not brought on record as secondary evidence, the suit of the petitioner will be frustrated, eventually putting the petitioner remediless. This court also feels that impounding of documents can also be done once the same is taken on record as a secondary evidence as the purpose of impounding of the document is to have the document properly stamped causing no loss to the public exchequer, therefore, looked at from any angle, if the application preferred by the petitioner is allowed and the photocopy of the document dated 24.04.2014 is brought on record, no prejudice will be caused to the respondent. 8. The judgment relied upon by the learned counsel for respondent is not applicable in the present set of facts, as the application so preferred by the petitioner under Section 65 is for the purpose of bringing on record the photocopy of the original document which was on the stamp of Rs. 100/-. Even otherwise if the learned trial court feels that the document so placed on record is required to be properly impounded, then recourse to the impounding of such document can take place if permissible under the law. Since, the application so preferred by the petitioner for bringing on record the secondary evidence fulfills the eligibility of Section 65 of the Act, the same is required to be taken on record. 9. Since, the application so preferred by the petitioner for bringing on record the secondary evidence fulfills the eligibility of Section 65 of the Act, the same is required to be taken on record. 9. In view of the discussions made above, the writ petition is allowed and the impugned order dated 21.03.2017 passed by learned Additional District Judge No. 2, Hanumangarh, is quashed and set aside. The learned trial court is directed to take on record the photocopy of agreement to sale dated 24.04.2014 and proceed thereafter in accordance with law. The respondent will be free to raise all the objections before the learned trial court with respect to the impounding of documents as well as other contention on merit of the admissibility of the contents of the documents so taken on record.