Nathu Ram and others vs Sudhir Kumar Puri

J.V. Gupta, J.—The defendant-petitioners have filed this revision petition against the order of the trial Court dated February 10, 1981, whereby application filed on behalf of the plaintiff for permission to lead secondary evidence was allowed.

The plaintiff has filed a suit for the recovery of Rs. 55,000/- During evidence he relied upon a dissolution deed which was said to in possession of the defendants. Since the defendants failed to produced the same, an application dated November 27, 1981 was made for permission to lead secondary evidence. This application was opposed on the half of the defendants on the ground that they are not in possession the said document as alleged by the plaintiff. Moreover, in the (sic) litigation between the parties u/s 20 of the Arbitration which was decided on March 10, 1980, the said dissolution-deed was placed on the record, but the same was not allowed to be admitted in evidence as the Court came to the conclusion that the deed of dissolution was not duly stamped and on that account was not admissible in evidence. Thus the original not being admissible in evidence, no secondary evidence could be led to prove such a document. The trial Court after hearing the arguments on both the sides allowed the application of the plaintiff as it was of the opinion that the original dissolution deed appears to be in possession of the defendants.

Learned Counsel for the defendant petitioners contended that when the original document itself was held to be inadmissible in evidence earlier by a competent Court, the plaintiff was not entitled to lead secondary evidence to prove the same. In support of his contention he relied on Jupudi Kesva Rao v. Pulaverthi Venkata Subarao and others (1979) 81 P.L.R. 409, AIR 1971 1070 (SC) Kartar Singh Vs. Mohinder Singh, In Jupudi Kesva Rao''s case (supra), it has been held that in view of Sections 35 and 36 of the Stamp Act, secondary evidence by way or oral evidence or copy of a document insufficiently stamped is not admissible in a suit even though objection to its admissibility cannot be taken under the Evidence Act.

On the other hand Learned Counsel for the respondent submitted that the order passed earlier between the parties u/s 20 of the Arbitration Act is not res judicata and is thus not binding on them. In any case it was submitted that the dissolution-deed, the copy of which is sought to be proved in the trial Court, is a primary evidence as contemplated u/s 62 of the Evidence Act. According to the Learned Counsel the said document purports to be signed by all the parties concerned and even if it is proved to be under stamped, the plaintiff is entitled to prove the same after paying deficiency in the stamp duty. In support of this contention he relied on Hita Lal v. Gian Singh and Company and others AIR 1951 P&H. 441 and Kruttivasa Padhy Vs. Malati Padhani and Others,

After hearing Learned Counsel for the parties I find that the said document, which is sought to be proved in the trial Court on behalf of the plaintiff falls within the definition of primary evidence, as provided u/s 62 of the Evidence Act and the plaintiff is entitled to prove the came in accordance with law. It is conceded on behalf of the plaintiff-respondent that as a matter of fact there was no necessity for moving the application for seeking permission to lead secondary evidence of the dissolution deed, which was said to be in possession of the defendant. In these circumstances the impugned order is liable to be set aside on the ground that the plaintiff is not entitled to lead the secondary evidence as claimed by him in his application dated November 27, 1980, but may prove the document as primary evidence in accordance with law. With these observations this revision petition succeeds and the order is set aside with no order as to costs.