Madhya Pradesh High Court

Bhanwarsingh vs Ghisalal S/O Gobruji (Dead) ... on 3 February, 2022

Author: Anil Verma

 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

                         M.P. No.1750/2019
                     (Bhanwarsingh Vs. Ghisalal)
                                                                    -1-

Indore, dated 03/02/2022
      Heard through Video Conferencing.

      Shri Yashpal Rathore, learned counsel for the petitioner.

      Shri Palash Choudhary, learned counsel for the respondents.

Both the parties are heard finally.

The petitioner/plaintiff has filed this present petition under Article 227 of the Constitution of India being aggrieved by the impugned order dated 22.02.2019 whereby an application filed under Section 65 of Indian Evidence Act has been dismissed.

02. The brief facts of the case are that the petitioner/plaintiff filed a suit for specific performance of contract and permanent injunction against the respondent/defendant. As the original defendant Ghisalal has expired therefore, their LRs have been brought on record.

03. The petitioner has submitted that on 08.03.2008, the defendant entered into an agreement to sale the suit property and received Rs.10,000/- as an advance. On 08.03.2008, the petitioner paid Rs.2,10,000/- and thereafter, defendant demanded an additional amount, therefore, petitioner further paid amount of Rs.80,000/- but defendant did not execute the registered sale deed in favour of the plaintiff, thereafter, the plaintiff filed this suit before the trial court on 16.11.2017. Plaintiff/petitioner gave a notice to the defendant under order 11 Rule 6 of CPC to produce the original agreement to sale, but, same was not produced by the respondent, therefore, the petitioner filed an application under HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

M.P. No.1750/2019 (Bhanwarsingh Vs. Ghisalal)

Section 65 of Evidence Act before the trial court and prayed that as per the court order, photocopy of the document has been impounded and petitioner has paid duty penalty, therefore, photocopy of the agreement be accepted as secondary evidence. The respondent opposed the said application and prayed for its rejection.

04. After hearing both the parties, learned trial court rejected the said application by impugned order, hence, this petition has been filed.

05. Learned counsel for the petitioner submits that learned court below on earlier date has impounded such document and accordingly, petitioner has deposited the duty and penalty amount of it. Hence, photocopy of the document is impounded. Learned court ought to have admitted the document as secondary evidence because the petitioner has complied with the provisions of Section 63 of Evidence Act. The Court below has gravely erred in holding that the said document was not prepared by the machine. The impugned order is against the settled principles of law and is liable to be set aside.

06. Learned counsel for the respondent has supported the impugned order and submitted that in the entire plaint, which is a suit for specific performance in pursuant to the agreement to sale but, there is no pleading about either the agreement is lost or destroyed.

07. To appreciate the rival submissions of learned counsel for both the parties, it is relevant to refer the provisions of Section 65 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

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of Evidence Act, which is reproduced as under:-

"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 [India] to be given in evidence;

(g) when the originals consist of numerous accounts or other documents 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."

08. Hon'ble the Supreme Court in the case of Hariom Agrawal HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

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vs Prakash Chand Malviya, reported in 2007 (8) SCC 514 in paragraph Nos.8 to 10 has held as under:-

"8. The instrument as per definition under Section 2(14) has a reference to the original instrument. In State of Bihar v. M/s. Karam Chand Thapar & Brothers Ltd., AIR 1962 SC 110, this Court in paragraph 6 of the judgment held as under :-

6. It is next contended that as the copy of the award in court was unstamped, no decree could have been passed thereon. The facts are that the arbitrator sent to each of the parties a copy of the award signed by him and a third copy also signed by him was sent to the court. The copy of the award which was sent to the Government would appear to have been insufficiently stamped. If that had been produced in court, it could have been validated on payment of the deficiency and penalty under S.35 of the Indian Stamp Act, 1899. But the Government has failed to produce the same. The copy of the award which was sent to the respondents is said to have been seized by the police along with other papers and is not now available. When the third copy was received in court, the respondents paid the requisite stamp duty under S.35 of the Stamp Act and had it validated. Now the contention of the appellant is that the instrument actually before the court is, what it purports to be, a certified copyµ, and that under S.35 of the Stamp Act there can be validation only of the original, when it is unstamped or insufficiently stamped, that the document in court which is a copy cannot be validated and acted uponµ and that in consequence no decree could be passed thereon. The law is no doubt well- settled that the copy of an instrument cannot be validated. That was held in Rajah of Bobbili v. Inuganti China Sitaramasami Garu, 26 Ind App 262, where it was observed :

The provisions of this section (section 35) which allow a document to be admitted in evidence on payment of penalty, have no application when the original document, which was unstamped or was insufficiently stamped, has not been produced; and, accordingly, secondary evidence of its contents cannot be given. To hold otherwise would be to add to the Act a provision which it does not contain. Payment of penalty will not render secondary evidence admissible, for under the HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

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stamp law penalty is leviable only on an unstamped or insufficiently stamped document actually produced in Court and that law does not provide for the levy of any penalty on lost documents.

09. This Court had an occasion again to consider the scope and ambit of Sections 33(1), 35 and 36 of the Act and Section 63 of the Indian Evidence Act in Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao and others AIR 1971 SC 1070 and held that :-

13. The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped or insufficiently stamped, would be tantamount to the document being acted upon by the person having by law or authority to receive evidence. Proviso (a) is only applicable when the original instrument is actually before the Court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document. Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by Section 63 of the Indian Evidence Act would not fulfil the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself. Section 35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document which is an instrument for the purpose of Section 35. `Instrument is defined in Section 2(14) as including every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded. There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act.

14. If Section 35 only deals with original instruments and not copies Section 36 cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit. The words an instrument in Section 36 must have the same meaning as that in Section 35. The legislature only relented from the strict provisions of Section 35 in cases where the original instrument was admitted in evidence without HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

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objection at the initial stage of a suit or proceeding. In other words, although the objection is based on the insufficiency of the stamp affixed to the document, a party who has a right to object to the reception of it must do so when the document is first tendered. Once the time for raising objection to the admission of the documentary evidence is passed, no objection based on the same ground can be raised at a later stage. But this in no way extends the applicability of Sec.36 to secondary evidence adduced or sought to be adduced in proof of the contents of a document which is unstamped or insufficiently stamped.

10. It is clear from the decisions of this Court and a plain reading of Sections 33, 35 and 2(14) of the Act that an instrument which is not duly stamped can be impounded and when the required fee and penalty has been paid for such instrument it can be taken in evidence under Section 35 of the Stamp Act. Sections 33 or 35 are not concerned with any copy of the instrument and party can only be allowed to rely on the document which is an instrument within the meaning of Section 2(14). There is no scope for the inclusion of the copy of the document for the purposes of the Indian Stamp Act. Law is now no doubt well settled that copy of the instrument cannot be validated by impounding and this cannot be admitted as secondary evidence under the Indian Stamp Act, 1899.

09. The said civil suit was filed by the petitioner/plaintiff in the year of 2011. An application for permission to adduce secondary evidence of agreement to sale was filed by the petitioner on 28.11.2017 i.e. after about 6 years and the petitioner gave notice to the respondent under Order 11 Rule 6 of CPC on 16.11.2017. There is no whisper in the plaint about the possession of the original copy of the agreement. The petitioner/plaintiff has not stated that original copy of the agreement has been destroyed or lost before filing of civil suit. The petitioner did not send any notice to produce original copy HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

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of the agreement to sale before filing of civil suit. Since from the pleadings it has not been established that the aforesaid primary evidence is not available as required under Section 64 of the Evidence Act, then permission to adduce the evidence through secondary evidence is not available.

10. Hon'ble the Apex Court in the case of Tukaram S. Dighole Vs. Manikrao Shivaji Kokate, AIR 2010 SC 965 in paragraph No.17 has held as under:-

"17. Chapter V of the Evidence Act deals with documentary evidence. Section 61 thereof lays down that the contents of documents may be proved either by primary or by secondary evidence. As per Section 62 of the Evidence Act, primary evidence means the document itself produced for the inspection of the Court. Section 63 categorises five kinds of secondary evidence. Section 64 lays down that documents must be proved by primary evidence except in the cases mentioned in the following Sections. To put the matter briefly, the general rule is that secondary evidence is not admissible until the nonproduction of primary evidence is satisfactorily proved. However, clause (e) of Section 65, which enumerates the cases in which secondary evidence relating to documents may be given, carves out an exception to the extent that when the original document is a "public document" secondary evidence is admissible even though the original document is still in existence and available. Section 74 of the Evidence Act defines what are known as "public documents". As per Section 75 of the Evidence Act, all documents other than those stated in Section 74 are private documents. There is no dispute that certified copy of a document issued by the Election Commission would be a public document."

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

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11. The other contention of the petitioner is that respondent did not send reply to his notice under Order 11 Rule 6 of CPC but it is noteworthy that respondent did not admit the fact of execution of agreement to sale and they have not admitted that such agreement was signed by deceased Ghisalal. Signature of Ghisalal in the photocopy of the said agreement was not admitted by the respondent, therefore, case of the petitioner does not fall under Sub-clause (b) of Section 65 of Evidence Act. Thus, both requirement, existence and conditions or contents are not admitted by the other side, therefore, in above condition, secondary evidence regarding the photocopy of agreement to sale cannot be permitted.

12. In view of the aforesaid position of law, this Court does not find any illegality or infirmity in the impugned order warranting interference, accordingly, the present petition under Article of 227 of the Constitution of India is hereby dismissed. It is made clear that this Court has not expressed any opinion on merits of the case.