Madhya Pradesh High Court
Keshav Singh vs Ramesh on 17 December, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
M.P. No.5506 of 2018
(KESHAV SINGH
Vs
RAMESH)
Appearance:
(BY SHRI N.K. GUPTA - SENIOR ADVOCATE WITH SHRI Y.P.S.
RATHORE - ADVOCATE FOR PETITIONER)
(BY SHRI B.D. JAIN - ADVOCATE FOR RESPONDENT)
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Reserved on 26.11.2024
Delivered on 17.12.2024
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ORDER
Aggrieved by the order dated 28.08.2018 passed by Second
Civil Judge Class -2 Dabra District Gwalior in Civil Suit No.600047
of 2011, dismissing the application preferred by the defendants-
petitioners under Section 65, 66 of the Evidence Act, 1872 r/w 151
of CPC, present petition under Article 227 of the Constitution has
been filed.
2. It is the case of the petitioner-plaintiff that the he had filed a
Civil Suit for specific performance of agreement to sell against the
respondent-defendant. In the suit, it was pleaded that the defendant
being the owner of the land which was part of survey No.125
suitated at Village Ramgarh Tehsil Dabra District Gwalior had
agreed to alienate 6000 sq. ft. land and an agreement was executed in
that regard in presence of witnesses and possession was also handed
over to the petitioner-plaintiff after receiving consideration amount.
The written statement was filed by the defendant and the facts as
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pleaded in the plaint were denied. At the time of evidence, original
document was submitted before the learned trial Court, on that
objection was raised by the defendant that the document is not
sufficiently stamped and learned trial Court vide order dated
13.12.2011 had sent the original document to the Collector for
Stamps for determination of duty and penalty and the document was
received in the office of Collector of Stamps. Though learned trial
Court had sent reminders to the Collector of Stamps but the same
was not re-sent to the Court. As the original document was not sent
by the Collector of Stamps and it was stated that after reviving the
document, the same was misplaced and not traceable, constrained the
plaintiff was compelled to file an application under Section 65 and
66 of the Indian Evidence Act r/w 151 of CPC and it was prayed that
the plaintiff is ready and willing to pay the duty and penalty as per
law but because of wrong committed by the authorities the original
document was not sent back hence he be permitted to lead secondary
evidence with regard to the document dated 5.8.1992, which was
rejected by learned trial Court vide order dated 28.08.2018
(Annexure P/1). Being aggrieved by the order dated 28.08.2018
(Annexure P/1), the present petition has been filed.
3. It is argued by learned senior counsel for the petitioner that
since the original document dated 05.08.1992 was submitted by the
plaintiff before the learned trial Court and for impounding the same,
learned trial Court has sent it for determination of duty and penalty,
hence the original document was in existence which was in custody
of the learned trial Court and when the Court was custodian of the
document, the same was lost and misplaced, for that the plaintiff
should not be penalised but contrary to law, the impugned order has
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been passed.
4. It was further submitted that the document was sent by the
trial Court to the Collector of Stamps by letter dated 13.12.2011 and
reminder was sent on 5.3.2012 and again several reminders were
sent but the original document was not returned back to the learned
trial Court instead of that one letter dated 21.2.2018 was sent stating
that the original document though was received in the office on
22.12.2011 but the document alongwith complete record is missing
and in this regard action has been taken against the concerned
employee, this shows that the document was lost when it was in
proper custody hence the provision of Section 66 of the Indian
Evidence Act will come into play. In spite of that, learned trial Court
rejected the application under Section 66 of the Indian Evidence Act.
With the aforesaid submissions, prayer is made to set-aside the order
dated 28.08.2018.
5. Per contra, learned counsel for the respondent opposed the
submissions made by learned counsel for the petitioner and
submitted that the trial Court has not committed any illegality in
dismissing the application preferred by the petitioner. He has
submitted that since the document i.e. original agreement was not
properly stamped, therefore, photocopy of the same is inadmissible
and no evidence can be led thereon. Thus, has prayed for dismissal
of the petition.
6. Heard learned counsel for the parties and perused the
record.
7. Section 35 of the Stamp Act provides that no instrument
chargeable with duty shall be admitted in evidence for any purpose
or shall be acted upon unless such instrument is duly stamped. Here,
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it is profitable to quote the provisions of Section 35 of the Act which
are as under:
35. Instruments not duly stamped inadmissible in
evidence, etc. – No instrument chargeable with duty
shall be admitted in evidence for any purpose by any
person having by law or consent of parties authority to
receive evidence, or shall be acted upon, registered or
authenticated by any such person or by any public
officer, unless such instrument is duly stamped:
Provided that-
(a) 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 or
deficient portion thereof exceeds five rupees, of a sum
equal to ten times such duty or portion;
(b) where any person from whom a stamped receipt
could have been demanded, has given an unstamped
receipt and such receipt, if stamped, would be
admissible in evidence against him, then such receipt
shall be admitted in evidence against him on payment
of a penalty of one rupee by the person tendering it;
(c) where a contract or agreement of any kind is
effected by correspondence consisting of two or
more letters and any one of the letters bears the proper
stamp, the contract or agreement shall be deemed to be
duly stamped;
(d) nothing herein contained shall prevent the
admission of any instrument in evidence in any
proceeding in a criminal Court, other than a proceeding
under Chapter XII or Chapter XXXVI of the Code of
Criminal Procedure, 1898 (5 of 1898);
(e) nothing herein contained shall prevent the
admission of any instrument in any Court when such
instrument has been executed by or on behalf of the
Government, or where it bears the certificate of theSignature Not Verified
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5Collector as provided by Section 32 or any other
provision of this Act.
8. Sections 63 and 65 of The Indian Evidence Act provides for
secondary evidence and cases in which secondary evidence relating
to documents may be given, for reference they are reproduced
below:-
“63. Secondary evidence. — Secondary evidence means and
includes —
(1) certified copies given under the provisions hereinafter
contained;
(2) copies made from the original by mechanical processes
which in themselves insure the accuracy of the copy, and
copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did
not execute them;
(5) oral accounts of the contents of a document given by some
person who has himself seen it.”
“65. Cases in which secondary evidence relating to
documents may be given.–Secondary evidence may be given
of the existence, condition, or contents of a document in the
following cases: —
(a) when the original is shown or appears to be in the
possession or power — of the person against whom the
document is sought to be proved, or of any person out of reach
of, or not subject to, the process of the Court, or of any person
legally bound to produce it, and when, after the notice
mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original
have been proved to be admitted in writing by the person
against whom it is proved or by his representative in interest;
(c) when the original 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;
(d) when the original is of such a nature as not to be easily
movable;
(e) when the original is a public document within the meaning
of section 74;
(f) when the original is a document of which a certified copy is
permitted by this Act, or by any other law in force in 1 [India]
to be given in evidence;
(g) when the originals consist of numerous accounts or other
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6documents which cannot conveniently be examined in Court,
and the fact to be proved is the general result of the whole
collection.
In cases (a), (c) and (d), any secondary evidence of the contents
of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other
kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the
documents by any person who has examined them, and who is
skilled in the examination of such documents.”
9. Section 63 of the Evidence Act gives an exhaustive
definition declaring that secondary evidence “means and includes”
the five kinds of evidence mentioned therein. Section 65 of the
Evidence Act allows secondary evidence to be given of the
existence, condition, or contents of documents under the
circumstances therein mentioned. It provides for the circumstances
in which secondary evidence can be used when the original
document is unavailable or inaccessible. It is imperative to adhere to
the principles outlined in these sections, including the proper
documentation and authentication, to successfully produce
secondary evidence in legal proceedings.
10. The Indian Evidence Act sets out the procedure for
receiving the secondary evidence. It has to be shown that primary
evidence is not available or that anyone of the circumstances such as
non-availability or custody of the document will be sufficient
grounds for producing secondary evidence. The secondary evidence
includes among other documents a document produced by exercise
of the mechanical device that ensures the correctness of the original.
The photocopies of the document is one such procedure and if a
valid ground is given for acceptance of secondary evidence, then
there cannot be any objection to the reception of photocopies of
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documents. The law with respect to secondary evidence is settled by
the Hon’ble Supreme Court in a large number of cases including in
K.B. Saha & Sons (P) Ltd. vs Development Consultant Ltd.
reported in (2008) 8 SCC 564 wherein while considering the
proviso of Section 49(c) of the Registration Act, the Hon’ble
Supreme Court has observed that non-registration of document
required to be registered is inadmissible in evidence, however it can
be used as an evidence for collateral transaction/purpose.
11. From the aforesaid judgment, it is apparently clear that the
document which is having some relevance and not in possession of
the party claiming the production of the document can always be
placed and treated to be secondary evidence for collateral purposes.
The document sought to be produced by the plaintiff has definite
relevance to the issue involved in the suit. It is a settled proposition
of law that unregistered, unstamped document or even a photocopy
of the document can be treated as a secondary evidence for collateral
purpose.
12. Though the position of law is settled that if a copy of a
document which is required to be stamped, is not sufficiently
stamped, cannot be adduced as secondary evidence, but looking to
the facts of present case where original of the document is lost by the
Office of Collector of Stamp which is admitted by the Office of
Collector of Stamp, this Court in light of the judgment rendered by
the Hon’ble Apex Court in the case of K.B. Saha & Sons (P) Ltd.
(supra), is inclined to set-aside the the order dated 28.08.2018
(Annexure P/1).
13. Consequently, the order dated 28.08.2018 passed by
Second Civil Judge Class -2 Dabra District Gwalior in Civil Suit
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No.600047 of 2011 is unsustainable and is hereby set aside. The
application filed by the petitioner under Section 65 and 66 of the
Evidence Act is allowed. The said document may be placed on
record and the question regarding its validity is left open for a
decision to be taken by the trial Court during the trial after the
parties led their evidence in the matter.
14. The petition is allowed in the above terms. No order as to
costs
(MILIND RAMESH PHADKE)
ojha JUDGE
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Signing time: 25-12-2024
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