@JUDGMENTTAG-ORDER
Shiv Kumar Sharma, J.@mdashCrucial legal question which arises for consideration in this revision petition, is, whether carbon copy of a
document is not admissible as primary evidence in View of Sections 35 and 26 of the Indian Stamp Act, 1899,
2. This question emerges in the following circumstances :--
(i) Plaintiff-non-petitioner (for short plaintiff) instituted a suit against the defendant petitioners (for short defendants) in the trial Court for the
recovery of possession of house in question making averments to the effect that the plaintiff entered into an agreement of sale for the said house in
favour of the defendants and actual physical possession of the house was given by the plaintiff to the defendants and certain amount was received
by him as part performance towards the payment of the sale consideration. But as the defendants have failed to comply with the terms and
conditions of the agreement it has become void and the plaintiff is entitled 16 possess the said house with certain other reliefs relating to mesne
profits etc.
(ii) In the written statement, the defendants made specific denial of the facts pleaded in plaint and pleaded that they were ready and willing to
perform their part. By way of filing counter claim, the defendants prayed for passing a decree for specific performance in their favour.
(iii) The trial Court framed the issues and case was posted for recording the evidence of the plaintiff.
(iv) On November 18, 1995 when recording of statement of plaintiff was in progress, the counsel for the plaintiff intended to prove a carbon copy
of a document dated 25th July, 1987. The counsel for the defendants raised objection that the said document was inadmissible in evidence as, it
did not bear any stamp duty required to be paid under the Indian Stamp ""Act. The trial Court on the objection being raised deferred the recording
of the statement of the plaintiff till the objection is decided and the case was posted for hearing the arguments on the question of the admissibility of
the said document.
(v) The trial Court vide its order dated 12-7-1996 observed as under :
So the intention as appears from the document regarding the nature of document is very very clear. To me when this is a position the document is
admissible u/s 62, Indian Evidence Act as original and primary evidence. The long arguments advanced by the learned counsel for defendants go
on merit of the case and for the limited purpose of admissibility cannot be taken into consideration at this stage. Of course when case will be
argued finally, then their arguments will be taken into account. Learned counsel for the defendants himself admits this position. Hence the document
is admissible as primary evidence. Now put up for recording the statement of plaintiff on August 13, 1996.
(vi) Against this order of the trial Court action for filing the revision has been resorted to.
3. I have given my anxious and thoughtful consideration to the rival contentions and carefully perused the impugned order.
4. Following infirmities are apparent in the impugned order of the trial Judge -
(a) The observations by the trial Judge that the undisputed fact is that the carbon copy bears signatures of Y. R. Singh, Man Singh and defendant
No. 1 Shiv Kant and also the expression ''Maian Uprokt Se Sehmat Hun'' (I do agree with the above) and all these are originals should not have
been made in the impugned order in view of averments made in the written statement by the defendants, denying the signatures and writing over the
said document. The facts are very much in dispute.
(b) Without considering the contentions raised by the counsel for the defendants against the admissibility of the document, the trial Judge admitted
the document as primary evidence.
5. Against the admissibility of the said document, Mr. P. N. Agrawal learned counsel for the defendants vigorously canvassed that though the
document is purported to have been written on behalf of the plaintiff but it does not bear his signatures. It was said to have been executed on 25-
7-1987 but its reference has not been made in the agreement for sale dated 23-3-1988, as such it is a highly suspicious document. If at all we
believe that it was executed, then executed for unlawful purpose against the public policy in order to escape the payment of stamp duty. The sale
consideration in agreement dated 23-3-1988 was Rs. 4,40,000/- whereas in the disputed document it was mentioned as Rs. 6,60,000/-which is
against the admission of the plaintiff. It is not admissible being unstamped, secondary evidence of a document cannot be permitted to lead unless it
is ascertained that original document cannot be produced. The disputed document is not a counterpart of the original document and as such is not
admissible under the provisions of the Indian Evidence Act. There is no reference of defendant Smt. Kumud Pandey in the said document and it is
inadmissible against her.
6. Mr. B. L. Agrawal, learned counsel for the plaintiff has supported the impugned order and asserted that being counterpart of the original, it is
admissible u/s 62 of the Indian Evidence Act.
7. Indisputedly, the document in question is a carbon copy, original of which is not before the trial Court and it is also not the case of the plaintiff
that the original document was on the stamp paper. In AIR 1971 1070 (SC) the Hon''ble Apex Court has held that in view of Sections 35 and 36
of the Stamp Act, 1899, secondary evidence by way of evidence or copy of document insufficiently stamped is not admissible in a suit.
8. In Ram Pratap v. Nar Singh Lal (1990) 1 RLR 339, this Court has observed that Section 35 of the Stamp Act, 1899 clearly lays down that no
instrument chargeable with duty shall be admitted in evidence for any purposes unless such instrument is duly stamped. The proviso appended to it
lays down that such an unstamped instrument may be admitted in evidence on payment of the duty and penalty as mentioned therein The duty can
be levied only on the original document. If the original document is not on the stamp the duty and penalty cannot be charged, collected or levied for
one reason or the other, no secondary evidence can be permitted to prove its contents. The law contained in Section 35 of the Stamp Act forbids
the letting of any secondary evidence in proof of its contents.
9. In Moolchand and Another Vs. Lachman and Another, this Court has held that the contents of a document which is required to be executed on
a stamp, if not stamped cannot be proved by secondary evidence. Section 36. of the Stamp Act, is applicable only when an unstamped or
insufficiently stamped instrument has to be admitted in evidence: But when the instrument itself is not proved the section has no application to the
secondary evidence.
10. In Chamba Lal v. Panna Lal 1951 R LW 258, it has been held by this Court that the contents of a document which is required to be executed
on a stamp, if not stamped or is insufficiently stamped, cannot be proved by a secondary evidence.
11. In Sawa Vs. Kuka, this Court again observed that secondary evidence cannot be given if primary evidence is inadmissible.
12. The same principle was echoed in Trilok Chand v. Jansilal ILR (1979) 29 Raj 457.
13. It is well settled that secondary evidence of the document whose production was not granted under Order 11, Rule 14, CPC cannot be
permitted to be produced. This observation was made in Smt. Dropadi and Others Vs. Mahagraha Bhagwat Singh and Others,
14. Defining the word ''counterpart'' Madras High Court in Jayarama Iyer and Others Vs. S. Ramanatha Iyer and Another, has laid down thus.
The meaning of ''counterpart'' is ''duplicate'', when a deed is prepared in two or more identical forms, the part signed by the grantor is the original,
the other parts are ''counter- part''.
15. Section 62 of the Evidence Act provides that where a document is executed in counterpart, each counterpart being executed by one or some
of the parties only, each counterpart is primary evidence as against the patties executing it.
16. According to Sub-section (3) of Section 63 of the Evidence Act, counterparts of documents as against the parties who did not execute them,
are included in secondary evidence.
17. The plaintiff has placed reliance on Katihar Jute Mills Ltd. Vs. Calcutta Match Works (India) Ltd. and Another, in which Patna High Court has
observed that ""in the case of agreement executed in duplicate, it is only when each of the instruments is duly signed by the party to be bound by it,
and delivered to the other that the documents are termed ''counterparts'', and it is only then that each is evidence against the party who executed it
and those in privity with the executing party and each is secondary evidence of the other.
18. The disputed document in the instant case though purported to have been executed by the plaintiff but did not bear his signatures. Neither the
plaintiff is bound by it nor it was delivered to the defendants as such it cannot be termed as ''counterpart'' in view of ratio of Katihar Jute Mills Ltd.
Vs. Calcutta Match Works (India) Ltd. and Another, and Jaya Ram Iyer''s case (AIR 1976 Mad 147) (supra).
19. It is apparent that production of the original document was not ordered by the trial Court under Order 11, Rule 14, CPC, as such disputed
carbon copy of the document could not have been admitted as secondary evidence. It is not a case of the plaintiff that original document was on
stamp paper as such disputed carbon copy of the document is not admissible in law as is held in AIR 1971 1070 (SC) Ram ''Pratap''s case (1990
(1) R LR 339 ) (supra), Moolchand and Another Vs. Lachman and Another, Sawa''s case ( AIR 1951 Raj 66 (supra) and Trilok Chand''s case
(ILR (1979) 29 Raj 457) (supra). We law on the point may be crystallised thus that a party feeding leave to prove the contents of a document
must first establish (1) the existence of documents, and (2) its admissibility. Where the original document is inadmissible as being not duly stamped
secondary evidence of its contents cannot be allowed to be received.
20. The disputed carbon copy of the document, in no way related to the defendant Smt. Kumud Pandey as such its admissibility is absolutely illegal
and without jurisdiction vis-a-vis defendant Smt. Kumud Pandey.
21. Upshot of above discussion is that the trial Court has illegally assumed the jurisdiction to hold that disputed document is admissible as primary
evidence. The observations made in the impugned order by the trial Court are not based on proper appreciation of the record of the case. The
order has been passed in an utter haste by the learned trial Judge without properly assessing the ratio of the case law cited on behalf of the
defendants. If the impugned order is allowed to stand it would occasion failure of justice.
22. In the result the revision is allowed and the impugned order of the learned Additional District Judge No. 6 Jaipur City, Jaipur dated July 12,
1996 is set aside. No costs.