Sanjay Agrawal vs Iswar Chand Jain

The petitioner has filed the present petition under Article 227 of the Constitution of India challenging the order dated 02.03.2017 passed by the First Additional District Judge, Seoni in Civil Suit No.106A/2009, whereby the trial Court has allowed the application preferred by the respondent under Section 65 of the Indian Evidence Act, 1872 (hereinafter in short referred to as "the Act, 1872").

The respondent/plaintiff has filed a civil suit for specific performance of contract. The petitioner filed the written statement denying the plaint allegations. The suit is based on photo-copy of the Ikrarnama dated 02.01.2004.

The respondent/plaintiff has earlier filed an application for necessary direction to the Office of Sub-Registrar for impounding the Ikrarnama dated 02.01.2004. The petitioner filed reply to the said application. It is specifically mentioned in the reply that the copy filed by the plaintiff is photo-copy of the Ikrarnama and therefore, same cannot be impounded or even subjected to secondary evidence as the same is not duly stamped. The trial Court vide order dated 27.04.2016 has rejected the said application. Being aggrieved by the said order, the respondent/plaintiff has filed a writ petition No. 8139/2016 before this Court. This Court vide order dated 01.02.2017 has dismissed the said writ petition and upheld the order passed by the trial Court. That in order to bypass the order passed by this Court, the respondent/plaintiff has filed an application under Section 65 of the Indian Evidence Act to lead oral secondary evidence to prove the contents of Ikrarnama. The trial Court vide order dated 02.03.2017 has allowed the said application. Being aggrieved by that order, the petitioner has filed the present petition.

Learned counsel for the petitioner submits that the trial Court has erred in allowing the application submitted by the respondent under Section 65 of the Act, 1872. It is submitted that the secondary evidence either by way of oral evidence to prove the contents of the un-stamped instrument or copy of it governed under Section 63 of the Act, 1872 would not fulfil the requirement of the proviso.

It is further submitted that the trial Court has failed to consider that the party can only be allowed to rely upon the document, which is an instrument within the meaning of Section 2 (14) of the Indian Stamp Act, 1899 (hereinafter in short referred to as the "the Act, 1899" for the purpose of Section 35 of the Act, 1899. It is further submitted that Section 35 of the Act, 1899 deals with original instrument and not their copies. The applicability of Section 36 of the Act, 1899 does not extend to secondary evidence adduced or sought to be adduced to prove the contents of the document, which is unstamped or insufficiently stamped. It is further submitted that earlier this Court has dismissed the writ petition preferred by the respondent/plaintiff and therefore, to bypass the earlier order passed by this Court, the trial Court should not have entertained the application. In support of his submission, learned counsel for the petitioner relied on the decision in the case of Abhiyank Builders Ltd. and another Vs. Daulat Singh and Others , 2016 (2)

M.P.L.J., 450.

On the other hand, learned Senior Advocate appearing on behalf of the respondent supports the order passed by the trial Court. It is contended that the trial Court has not committed any error in allowing the application preferred by the petitioner under Section 65 of the Act, 1872. It is submitted that the finding of the trial Court that for proving the said document, secondary evidence is required to be recorded as per Section 63 of the Act, 1872 and thus, the trial Court has rightly allowed the application preferred by the respondent under Section 65 of the Act, 1872.

Heard learned counsel for the parties and perused the record. From perusal of the record as well as the order passed by the trial Court, it is revealed that the respondent/plaintiff has filed a civil suit for specific performance of the contract. The said civil suit is based on photo-copy of Ikrarnama dated 02.01.2004. The respondent/plaintiff has filed an application for issuance of necessary direction to the Office of Sub-Registrar for impounding the Ikrarnama dated 02.01.2004. The said application was rejected by the trial Court. Against which, the respondent has preferred a writ petition No.8139/2016 before this Court. The said writ petition was dismissed vide order dated 01.02.2017. After dismissal of the writ petition, the respondent has filed an application under Section 65 of the Act, 1872 to lead the oral secondary evidence. The said application was allowed by the trial

Court. Against the said order, the petitioner has filed the present petition. Section 2 (14) of the Act, 1899 defines the word "Instrument". As per the said definition, "Instrument" includes every document, by which the right or liability is, or purports to be created, transferred, limited, extended, extinguished or record. Section 35 of the Act, 1899 provides that instruments not duly stamped are inadmissible in evidence. However, proviso to said section provides that any such instrument shall be admitted in evidence on payment of 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, together with a penalty of five rupees, or, when ten times the amount of the proper duty. Thus, as per the said section, the instrument as defined under Section 2(14) of the Act, 1899 is not admissible in evidence unless it is duly stamped.

This Court in the case of Abhiyank Builders Ltd.

(supra) in paragraph No.13 of the said judgment has held

as under :

"13. True it is that the Division Bench has allowed the respondents plaintiffs to prove the existence and contents of the agreement to sale dated 3-8-2006, but the aforesaid liberty is always subject to statutory provisions as contained under section 35 of the Act and the law laid down by the Apex Court in the case of Jupudi Kesava Rao (supra), as clearly the observations/directions of the Division Bench are in the realm of Evidence Act .

The Evidence Act, under various chapters, deals with matters as to how facts are to be proved and which facts need not be proved. Section 59 of the Evidence Act lays down that all facts except contents of documents can be proved by oral evidence. Section 61 of the Evidence Act provides that contents of the documents can be proved either by primary evidence or secondary evidence.

However, the Indian Evidence Act does not purport to deal with admissibility of documents in evidence which are required to be stamped under the provisions of the Indian Stamp Act . The document in question is copy of agreement to sale.

The agreement to sale is an "Instrument" as defined under section 2(14) of the Act chargeable with stamp duty, as provided for under Article 5 of Schedule I-A of the

Act. Therefore, the rigor of section 35 of the Act has full application to the document in question i.e. copy of the unstamped agreement to sale. Hence, the order of the Division Bench has to be understood subject to provisions of section 35 of the Act. As laid down by the Apex court in Jupudi Kesava Rao (Supra) wherein it is held that section 35 shuts out from evidence any instrument chargeable with duty unless it is duly stamped and shuts out any secondary evidence of such instrument when the original admittedly chargeable with duty was not stamped or insufficiently stamped. Therefore, the secondary evidence, either by way of oral evidence of the contents of unstamped document or copy of it governed by section 63 of the Indian Evidence Act, will not fulfil the requirement of the proviso which enjoins upon the Authority to receive nothing in evidence except the instrument itself.

Section 35 of the Act is not concerned with the copy of the "Instrument" and a party can only rely on a document which is instrument for the purposes of section 35 of the Act. Therefore, the trial Court was not justified having accepted the secondary evidence of unstamped agreement to sale dated 3-8-2006 while rejecting the objection raised under section 35 of the Act. Further, the fact that petitioners- defendants had cross-examined the plaintiff on the copy of agreement to sale and the same was marked as exhibit, shall not dilute the rigor of section 35 with the help of provision of section 36 of the Act, for the reason that exception carved out in section 36 is in relation to "Instrument" defined under section 2(14) of the Act and not copy thereof."

Thus, as per the said judgment, if secondary evidence either by way of oral evidence of the contents of unstamped document or copy of it governed by Section 63 of the Act, 1872 and will not fulfil the requirement of the proviso which enjoins upon the Authority to receive nothing in nothing in evidence except the instrument itself. Thus, as per the said judgment, secondary evidence of unstamped document is not admissible in evidence. Thus, in the light of the aforesaid judgment passed by this Court, I deem it proper to allow the petition. Accordingly, the petition is allowed. The order dated 02.03.2017 passed by the trial Court is set aside.