Fateh Lal vs Civil Judge (J.D.) and Another

Vineet Kothari, J.—This writ petition is directed against the order dtd. 20.8.2007 whereby the learned trial Court allowed the application of the plaintiff u/s 65 of the Evidence Act for admissibility of the agreement of mortgage u/s 65 of the Evidence Act as secondary evidence.

The learned Counsel for the petitioner-defendant Mr. Pankaj Sharma relying upon the decision of this Court in the case of Shankar Lal and Others Vs. The Civil Judge (Jr. Div.) and Others, submitted that since primary evidence, namely, mortgage-deed itself was neither registered nor stamped, therefore, the photo-stat copy of the same could not be admitted as secondary evidence u/s 65 of the Act.

On the other hand, Mr. Usman Ghani, learned Counsel for the respondent relying upon the Full Bench decision of this Court in the case of Lachhmi Narain and Anr. v. Kalyan and Anr. reported in AIR 1960 (Raj.) 1 submitted that said unregistered document can be availed of for the purpose of showing character and nature of possession of the plaintiff and therefore, the learned trial Court was justified in admitting such document as secondary evidence.

Having heard the learned Counsels and upon perusal of the impugned order, this Court is of the opinion that in view of settled legal position where primary evidence itself is not admissible in evidence being unstamped and unregistered, photo-stat copy of the same cannot be admitted as secondary evidence u/s 65 of the Evidence Act. However, for collateral purposes for showing the nature of possession, it can be so admitted. This position of law has been throughout and even the judgment relied upon by the learned Counsel for the defendants in the case of Shankar Lal v. Civil Judge stated the position of law thus, discussing the Full Bench decision relied upon by the learned Counsel for the respondent-plaintiff. It would be appropriate to reproduce para 24 of the said judgment as under:

There is difference with regard to the admissibility of an unstamped and unregistered document of sale of immovable property unless the original document unstamped or insufficiently stamped is impounded and deficit stamp duty is paid with penalty, the same cannot be taken in evidence. The photocopy of the unstamped or insufficiently stamped document also cannot be impounded in view of the aforesaid judgment of the Supreme Court in Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao and Ors. (supra). The definition of instrument u/s 2(14) of the Indian Stamp Act, 1899 will cover original instrument and not the photocopy of the instrument. The said definition is parameteria with the definition of instrument u/s 3(12) of the Jaipur Stamp Act. Therefore, under no circumstance a photocopy of unstamped document can be admitted in evidence but as regards unregistered document, the original of which can be seen for the collateral purposes, then secondary evidence of unregistered document is admissible for collateral purposes as held by this Court in Rahim Bux v. Illahi Bux and Anr. (supra) wherein earlier judgments of this Court in Lachhmi Narain and Another Vs. Kalyan and Another, 1 have been considered on the ground that once primary evidence of unregistered document is receivable for collateral purpose of providing nature of possession, then after necessary condition for adducing secondary evidence of such document exists then the same can be taken.

In view of aforesaid legal position, this petition is disposed of by observing that to the extent of said evidence being used for collateral purposes for showing nature of possession of the plaintiff, the same can be used, otherwise the same cannot be used as secondary evidence for the purpose of proving the mortgage-deed itself. No order as to costs.