Kailash Chand vs Amarpati and Another

L.N. Mittal, J.—Defendant Kailash Chand has invoked the jurisdiction of this Court under Article 227 of the Constitution of India by filing this revision petition to assail order dated 26.07.2012 (Annexure P-3) passed by learned Civil Judge (Junior Division), Narnaul, thereby dismissing application Annexure P-1 moved by the defendant-petitioner for permission to lead photostat copy of rent deed as secondary evidence. Respondents/plaintiffs have filed suit against defendant/ petitioner for possession of the demised property by ejectment of defendant-tenant. The defendant alleged in his application Annexure P-1 that the original rent deed dated 25.01.1988 was in possession of Budh Ram - predecessor of the plaintiffs, but the plaintiffs have not produced the same intentionally. Accordingly, permission to lead secondary evidence thereof has been sought.

Plaintiffs, in their reply (Annexure P-2), contested the application and controverted the averments made in the application. It was pleaded that no such rent deed dated 25.01.1988 was executed nor it was in custody of Budh Ram or the plaintiffs.

Learned trial court, vide impugned order Annexure P-3, dismissed the defendant''s application for secondary evidence. Feeling aggrieved, defendant has filed this revision petition.

I have heard Learned Counsel for the petitioner and perused the case file.

At the outset, it has to be noticed that learned trial court, in the impugned order, has erroneously observed that the defendant-applicant has not alleged as to where the original rent deed is and in whose possession it is. The defendant has pleaded in application (Annexure P-1) that the original rent deed was in custody of Budh Ram (since deceased) - predecessor of the plaintiffs and plaintiffs have not produced the same intentionally.

The alleged rent deed is admittedly not properly stamped. Under the Stamp Act, the original rent deed could be impounded and on payment of requisite stamp duty and penalty, could be admitted in evidence. However, in view of judgment of Hon''ble Supreme Court in the case of Hariom Aggarwal vs. Prakash Chand Malviya reported as 2007 (4) R.C.R. (Civil) 548, photostat copy of unstamped rent deed cannot be impounded for purpose of recovering stamp duty and penalty, and therefore, cannot be admitted in evidence. In view thereof, application (Annexure P-1) moved by the petitioner has been rightly dismissed by the trial court.

Counsel for the petitioner contended that even unstamped rent deed may be admitted in evidence for collateral purposes, as held by Hon''ble Supreme Court in the case of Bondar Singh and others vs. Nihal Singh reported as 2003 (2) R.C.R. (Civil) 222. However, in the instant case, counsel for the petitioner submitted that rent deed is sought to be produced to prove the rate of rent. Proof of rate of rent by producing secondary evidence of the unstamped rent deed cannot be said to be collateral purpose. Rate of rent is the primary purpose of executing the rent note or rent deed, in addition to proving the tenancy. Proof of rate of rent cannot be said to be collateral purpose, and therefore, secondary evidence of the unstamped rent deed cannot be permitted for proving the rate of rent. It may also be mentioned that according to the alleged rent deed, rate of rent is Rs. 300/-per month only, whereas according to the plea of the defendant petitioner, rate of rent stood increased to Rs. 340/-per month, although plaintiffs have alleged the rate of rent to be Rs. 750/-. Under these circumstances, alleged rent deed depicting the rate of rent to be Rs. 300/-per month does not prove version of the defendant-petitioner or the version of the plaintiffs. For this added reason also, alleged rent deed cannot be admitted in evidence. For the reasons aforesaid, I find no merit in this revision petition. Impugned order of the trial court does not suffer from any perversity, illegality or jurisdictional error so as to call for interference at the hands of this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. Accordingly, the revision petition is dismissed in limine.