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.