Rajasthan High Court - Jodhpur

Mehanga Ram vs Mukhtyar Kaur ... on 26 September, 2023

Bench: Nupur Bhati

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 16787/2019

Mehanga Ram S/o Gulabram, Aged About 53 Years, Chakh No.4, Fdmb, Tehsil Suratgarh, District Sri Ganganagar.

----Petitioner Versus

1. Mukhtyar Kaur W/o Dilip Singh D/o Mehangaram, Chakh No.4, Fdmb, Tehsil Suratgarh, District Sri Ganganagar.

2. Dilip Singh S/o Arjan Singh, Chakh No.4, Fdmb, Tehsil Suratgarh, District Sri Ganganagar.

                                                                   ----Respondents


For Petitioner(s)            :    Mr. Muktesh Maheshwari, assisted by
                                  Mr. Gaurav Choudhary
For Respondent(s)            :    --



                 HON'BLE DR. JUSTICE NUPUR BHATI

                                       Order

26/09/2023

1. The instant writ petition has been filed under Articles 226

and 227 of the Constitution of India with the following prayers:-

"a) By an appropriate writ, order or direction, the order dated 15.04.2019 (Annex-9) passed by Court of learned Additional District Judge Suratgarh District Sri Ganganagar in Civil Original Suit No.52/2014 titled as Mehangaram Vs. Mukhtyar Kaur & Ors., may kindly be quashed and set aside.

b) By an appropriate writ, order or direction, the application Under Section 65 of Indian Evidence Act dated 28.10.2013 (Annex.2) dated 27.11.2013 may kindly be allowed in toto and the document agreement to sell dated 28.10.2013 (Annex.-2) may kindly be directed to be permitted and received in secondary evidence as per law.

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c) By an appropriate writ, order or direction, the application under Section 35 of Rajasthan Stamp Act (Annex-4) may kindly be allowed in toto and the document agreement to sell dated 28.10.2013 (Annex.-2) may kindly be sent for payment of deficient stamp duty to the appropriate authority as per law.

d) Any other order which the Hon'ble Court deems fit may kindly be granted in favor of the petitioner."

2. Briefly stated facts of the case giving emergence to the

present writ petition are that the petitioner filed a suit before the

learned District Judge, Suratgarh and the matter was transferred

for adjudication to the Court of learned Additional District Judge,

Suratgarh, District Sri Ganganagar (for short, 'the trial court'), for

specific performance of agreement to sell dated 28.10.2013

(Annexure-2) and for cancellation of sale deed dated 20.03.2014

while praying for perpetual injunction and possession of the

property in question.

3. The defendants-respondents submitted a written statement

before the trial court and thereafter, as the petitioner was in

possession of the photocopy of the agreement to sale dated

28.10.2013 and the original copy was in possession of the

respondent-defendant, thus, the petitioner filed an application

dated 30.11.2015 (Annexure-4) under Section 35 of the Rajasthan

Stamp Act, 1998, seeking direction of the court below to pass an

order for paying the deficient stamp duty.

4. While the application under Section 35 of the Rajasthan

Stamp Act, 1998 was pending consideration, another application

dated 18.01.2019 (Annexure-5) under Order 11 Rule 14, CPC was

moved by the petitioner before the learned trial court seeking

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direction to the defendants-respondents to produce original

agreement to sale dated 28.10.2013 and power of attorney dated

28.10.2013 (Annexure-2) as well as the sale-deed dated

20.02.2013. Thereafter, the learned trial Court made an

observation on 07.02.2019 (Annex.ure-6) wherein the

respondents admitted orally that the original documents with

regard to agreement to sale dated 28.10.2013 was with them and

the same was returned to the petitioner after execution of

registered sale-deed. Thereafter, the matter was posted on

08.03.2019.

5. The respondents-defendants submitted a reply to the

application under Order 11 Rule 13 of the CPC on 08.03.2019

while submitting that the original power of attorney was submitted

during the course of execution of sale-deed at Sub-Registrar,

Suratgarh and the same forms part of record of the said office.

The petitioner, on the very same day, moved an application

(Annexure-8) before the learned trial Court seeking permission

that the agreement to sale dated 28.10.2013 may be received in

secondary evidence.

6. The learned trial Court, vide order dated 15.04.2019

(Annexure-9), dismissed the application under Section 65 of the

Evidence Act, 1872 (for short, 'the Act of 1872') as well as the

application under Section 35 of the Act of 1998 (for short, 'the Act

of 1998') preferred by the petitioner and thus, being aggrieved

thereof, the petitioner prefers the present writ petition.

7. Learned counsel for the petitioner submits that:-

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(a) the learned trial Court had observed on 07.02.2019 that the

agreement to sale dated 28.10.2013 was originally with the

respondents but the said document was returned after the

execution of the registered sale-deed dated 20.03.2014. Thus, the

admission made by the respondents clearly reflects that the

document was actually executed between the parties, the learned

court below ought to have considered the application under

Section 65 of the Act of 1872.

(b) The document that has been produced before the learned

trial Court is a photocopy of the original document and thus, if the

original document is available with the respondents-defendants,

then, the application under Order 11 Rule 14 CPC ought to have

been allowed permitting the said document as a secondary

evidence, however, the application of the petitioner has been

rejected while not appreciating the said fact.

8. Heard learned counsel for the petitioner as well as perused

the material available on record.

9. The service of notice upon the respondents-defendants was

made way back on 15.11.2019, however, nobody has put in

appearance on their behalf.

10. Section 65 of the Act of 1882 reads 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

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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;

XXX XXX XXX

11. This Court finds that under Section 65 of the Act of 1872,

the secondary evidence may be given without filing primary

evidence and in the present case, undoutedly, the respondents-

defendants in their reply to the application filed under Order 11

Rule 14 CPC, have categorically admitted that the original

document was in their possession, which was later on handed

over to the petitioner-plaintiff and was deposited before the Sub-

Registrar, Suratgarh and thus, the case of the petitioner-plaintiff

fell under Section 65 (a) of the Act of 1872 and the petitioner-

plaintiff was admittedly not in possession of the original document

and thus, the learned trial Court ought to have permitted the

petitioner to lead the document as a secondary evidence for the

purpose of adjudication of the suit.

12. Section 35 of the Act of 1998 reads as under:-

"35. Adjudication as to proper stamp -

(1) When any instrument, whether executed or not and whether previously stamped or not, is brought to the Collector, and the person bringing it applies to have the opinion of that officer as to the duty, if any, with which it is chargeable, and pays a fee of five hundred rupees, the Collector shall determine the duty, if any, with which in his judgment, the instrument is chargeable.

(2) For this purpose the Collector may require to be furnished with a true copy or an abstract of the instrument, and also with such affidavit or other

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evidence as he may deem necessary to prove that all the facts and circumstances affecting the chargeability of the instrument with duty, or the amount of the duty with which it is chargeable, are fully and truly set forth therein, and may refuse to proceed upon any such application until such true copy or abstract and evidence have been furnished accordingly :

Provided that,-

(a) no evidence furnished in pursuance of this section shall be used against any person in any civil proceeding, except in an inquiry as to the duty with which the instrument to which it relates is chargeable; and

(b) every person by whom any such evidence is furnished shall, on payment of the full duty with which the instrument to which it relates, is chargeable, be relieved from any penalty which he may have incurred under this Act by reason of the omission to state truly in such instrument any of the facts or circumstances aforesaid.

(3) Where the Collector has reason to believe that the market value of the property has not been truly set forth in the instrument brought to him for determining the duty under sub-section (1) he may, after such inquiry as he may deem proper and after giving a reasonable opportunity of being heard to the person bringing the instrument, determine the market value of such property for the purpose of duty."

13. Section 35(2) of the Rajasthan Stamp Act provides that a

true photo copy can be sent for determining stamp duty on the

said instrument. In the present case, the respondents-defendants

have admitted execution of the document in question and this

Court finds that the petitioner-plaintiff can bring on record photo

copy of the document in question to lead secondary evidence and

in view of the provisions of Section 35(2) of the Rajasthan Stamp

Act, the true copy of the said document can be sent for

impounding the stamp duty.

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14. In view of the above, the present writ petition deserves to

be allowed and is hereby allowed. The impugned order dated