Telangana High Court

Vangapalli Seetha Ramulu vs Anumandla Malla Reddy on 28 October, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

   IN THE HIGH COURT OF TELANGANA AT HYDERABAD

       CIVIL REVISION PETITION No.2875 OF 2024
Between:

Vangapalli Seetha Ramulu
                                               ... Petitioner
                             And

Anumandla Malla Reddy & Others
                                           ... Respondents

JUDGMENT PRONOUNCED ON: 28.10.2024


     THE HON'BLE MRS. JUSTICE SUREPALLI NANDA


1. Whether Reporters of Local newspapers   :    Yes
   may be allowed to see the Judgment?

2. Whether the copies of judgment may be   :    Yes

   marked to Law Reporters/Journals?

3. Whether Their Lordships wish to         :    Yes
   see the fair copy of the Judgment?

                        ________________________________
                        MRS. JUSTICE SUREPALLI NANDA
                                  2
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    IN THE HIGH COURT OF TELANGANA AT HYDERABAD

        CIVIL REVISION PETITION No.2875 OF 2024



%     28.10.2024


Between:
# Vangapalli Seetha Ramulu
                                        ... Petitioner
                               And


$ Anumandla Malla Reddy
                                          ... Respondents


< Gist:
> Head Note:



! Counsel for the Petitioner   : Sri C.A.R.Sheshagiri Rao


^ Counsel for the Respondents: Sri.D.V.Chalapathi Rao


? Cases Referred:

 a) 2007 (7) Supreme 402

 b) 2008 2 ALD 278

 c) The 2002 (4) ALD 808

 d)    2014 LawHerald 3613
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         HON'BLE MRS JUSTICE SUREPALLI NANDA

      CIVIL REVISION PETITION No.2875 OF 2024


ORDER:

Heard Sri C.A.R.Seshagiri Rao, learned counsel

appearing on behalf of the petitioner and Sri

D.V.Chalapathi Rao, learned counsel appearing on behalf

of respondents.

2. The petitioner filed the Civil Revision Petition

seeking the prayer as under:

"....pleased to set aside the order in I.A.No.147 of 2024 in O. S No. 14 of 2010 dated 27.08.2024 on the file of the Junior Civil Judge-cum-Judicial Magistrate of First Class Thorrur by allowing the Petition and may further be pleased to pass ..."

3. Petitioner in the present case is the plaintiff in Suit

O.S.No. 14 of 2010 on the file of the Junior Civil Judge-

cum-Judicial Magistrate of First Class, Thorrur. The

Petitioner/plaintiff herein filed I.A.No. 147 of 2024 in

O.S.No. 14 of 2010 seeking prayer as under:-

"...to permit the petitioner to lead secondary evidence by producing a copy of the simple Sale Deed, dated 20.04.1994 and consider the same by marking on his

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behalf and may further be pleased to pass such other order or orders..."

4. The said I.A.No. 147 of 2024 in O.S.No.14 of 2010,

dated 27.08.2024 was dismissed observing in its

conclusion as under:-

"As per Sec. 2(14) of Indian Stamp Act, the document in question being a copy and thus not an instrument within the meaning of Sec. 2(14) and when document is required to be stamped u/s. 35 of Indian Stamp Act, it cannot be allowed to be introduced in evidence when it is not duly stamped and xerox copy of such document need not be stamped and cannot be acted RT upon in view of bar contained in Sec. 35 of Indian Stamp Act, if xerox copies of document permitted, it would certainly circumvent mandatory provisions of Sec.35 of Indian Stamp Act. The photocopy of the document, original of which is lost, cannot be admitted in evidence and that such a document can neither be impounded nor accepted in secondary evidence. In these circumstances this Court is not inclined to allow this petition."

5. The learned counsel appearing on behalf of the

petitioner/plaintiff placed reliance on the following

judgments in support of the petitioner's case.

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a) The judgment of the Patna High Court in

Sribhagwan Singh and Others Vs. Rambasi Kuer and

Other, dated 04.09.1956 reported in AIR 1957

PATNA 157

b) The judgment of the erstwhile Andhra Pradesh

High Court in Hari Waman Rao and Others Vs.

Pappula Narsimulu, dated 10.02.1977 reported in

AIR 1977 ANDHRA PRADESH 371

C) The judgment of the Telangana High Court in

Kasarla Anantha Laxmi Vs. U.Bhoom Reddy and

Others, dated 28.01.2019 in Civil Revision Petitin

Nos. 6085 of 2018, 6091 of 2018.

6. The learned counsel for the respondents placed

reliance on the following judgments in support of the

respondents case.

a) The judgment of the Apex Court in Hariom

Agrawal Vs.Prakash Chand Malviya, dated

18.10.2007 reported in 2007 (7) Supreme 402 ( para

Nos. 8 and 10)

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b) The judgment of the Andhra Pradesh High Court in

Obelisetty Ramanadham Vs. Obelisetty Bhaskar Rao,

dated 13.11.2007 reported in 2008 2 ALD 278( Para

No.7)

c) The judgment of the Andhra Pradesh High Court in

Akkam Laxmi Vs. Thosha Bhoomaiah, dated

06.28.2002 reported in 2002 (4) ALD 808 (Para

Nos.8 & 9)

d) The judgment of the High Court of Punjab and

Haryana in S.S.Toor Vs. Gurleen Kaur & Ors., dated

05.08.2014 reported in 2014 LawHerald 3613 (Para

No.11)

DISCUSSION AND CONCLUSION:-

7. The record indicates the pleas put-forth by the

petitioner/plaintiff and the respondent No.3 before the

Junior Civil Judge-cum-Judicial Magistrate of First Class,

Thorrur in I.A.No.147 of 2024 in O.S.No.14 of 2010 as

under:-

7. It is the contention of the Petitioner/Plaintiff that the suit was filed For Declaration and Title and for consequential injunction in respect of the suit schedule

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property. Originally the suit was filed by the petitioner for injunction simplicitor and subsequently, he filed an application in IA.No. 367/2012 seeking amendment of the suit to that of declaration of title and the same on being allowed, the Respondents carried the matter in Revision before the Hon'ble High Court in C.R.P.No. 136 of 2014 and vide the order dated: 07.01.2022, the Hon'ble High Court was pleased to dispose of the matter with a direction to this Court to give an opportunity to the Respondents for filing additional Written Statement within in time and frame additional issue if any. Accordingly additional Written Statement was Jufiled and additional issues were framed.

It is the further contention of the Petitioner/Plaintiff that he purchased the suit schedule property from the original defendant for a sale consideration of Rs.15,000/- and was delivered possession of the property and there is a dispute between Plaintiff and Defendant with regard to suit schedule property, as such the Plaintiff filed this present suit. During pendency of the litigation a couple of advocates appeared on his behalf and the original sale agreement referred could not be filed and having lost it believable along with some other papers, the Petitioner lost it on 25.12.2023 in transit and he lodged a police complaint with police Danthalapalli and the police issued a certificate to that effect that the same could not be traced, original having not been there in the custody of Petitioner now, he deserve to be permitted to lead secondary evidence by filing the document along with copy of

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certificate issued by the concerned police as secondary evidence.

8. On the other hand the Respondent No.3 strictly opposed the said petition by stating that as per the version of Petitioner/Plaintiff he purchased the property from Defendant through simple sale deed dated: 20.04.1994 for а sale consideration of Rs. 15,000/- and delivered the possession of property is False and incorrect and the Defendant ever executed any nature of document specifically alleged simple sale deed dated: 20.04.1994 in favor of Petitioner/Plaintiff, further as per the pleadings in the plaint in para No.4 that he was said to be purchased the same in the year 2001 and there are self contradictory pleadings over the alleged simple sale deed, dated 20.04.1994, The Respondent No.3 further contended that the Petitioner/Plaintiff as an after thought created forged and fabricated document, and the alleged simple sale deed dated: 20.04.1994 was brought into existence in order to usurp his property. The Respondent No.3 further submitted that as per Petitioner version during the pendency of litigation couple of advocates appeared on behalf of Petitioner/Plaintiff and the original sale agreement referred could not be filed and having lost it believable along with his some other papers, he lost it on 25.12.2023 in transit, in reply as per his affidavit he lost his alleged agreement of sale in the offices of advocates during pendency of litigation, but not in transit on the alleged date and the affidavit of Petitioner/Plaintiff is vague where his alleged document was

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lost, if it is lost in the transit of offices of advocates, there is no question of filing complaint before PS Danthalapally never arise, that where he was lost he can give complaint there only, the same is created to file this petition to receive the same as secondary evidence. On bare perusal of the alleged simple sale deed document dated: 20.04.1994, is said to be executed on Rs. 10/- Non Judicial Stamp paper and as per the pleadings possession was delivered to the petitioner. The Respondent No.3 further contended that the alleged document transfer of immovable property by way of sale deed can only be by a deed of conveyance (sale deed) in the absence of a deed of conveyance (duly stamped and registered as required by law) no right or interest in any immovable property can be transferred. That in view of Indian Stamp Act, it requires to be stamped as if it were sale. It required payment of stamp-duty and penalty on the alleged document. As per Sec. 35 of Indian Stamp Act, the instruments not duly stamped inadmissible in evidence etc. That if a Xerox copy is to be permitted, it would certainly contrary to the mandatory provisions of Sec. 35 of Indian Stamp Act. The 35 of Act only deals with Original documents and not Xerox copies of the same. No stamp duty can be collected on the xerox copy and as such same cannot be allowed to be part of secondary evidence the case. The alleged simple sale deed, dated: 20.04.1994 which requires stamp duty and is not property stamped, is inadmissible in evidence. The original document itself is inadmissible for want of proper stamp duty and penalty, that when once the original document itself is inadmissible as required, the

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question of accepting a Xerox Copy of the same under sec. 65 of evidence act does not arise. The document original simple sale deed, dated: 20.04.1994 is required to be stamped is not sufficiently stamped or deficit stamp duty then the position of law is well settled that a copy of such document as secondary evidence cannot be adduced.

8. A perusal of the record and the plaint indicates that

the petitioner did not at all plead that the original

agreement of sale had been lost by showing the same

reason, now mentioned in the petition thus there is no

foundation laid in the pleadings for seeking permission to

adduce secondary evidence. This apart according to the

petitioner, after filing of the suit, two advocates appeared

on his behalf and that the agreement was lost since it had

been mixed up with some other papers. The names of the

advocates are not mentioned and it is not clear as to in

whose office the subject agreement had been misplaced.

Apart from all this, the certificate issued by the Police

shows that the petitioner lodged complaint stating that he

had lost original land registration stamp paper of 254

sq.yards when he was proceeding from his house towards

Xerox centre at Narsimhulapet.

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9. It is pertinent to mention that in the complaint it is

not at all mentioned that the simple sale deed dated

20.04.1994 had lost. The fact that the date and

description of the document are not correctly mentioned

in the complaint would create serious doubt about the

genuineness of the certificate. Aside from all this, there is

inconsistency about the stand taken by the petitioner

about the loss of the document, on one hand, he says that

loss of document occurred on account of change of '2'

counsels in whose offices the document had been

misplaced and quite inconsistently in the police complaint

it is stated that he had lost the document when he was

proceeding from his house to Xerox centre at

Narasimhulapet.

10. From the above what emerges is that the reasons

given by the petitioner for loss of the document are not at

all acceptable. Added to this, as already mentioned above,

there is no foundation laid in the pleading for seeking

permission to adduce secondary evidence, therefore, the

petitioner failed to prove that he had lost the document

and so he is entitled to seek permission to adduce

secondary evidence regarding the payment of stamp duty

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on the document admittedly the original document is not

duly stamped and so deficit stamp duty and penalty are

leviable on the documents. But, the document now in

question is only a Xerox copy.

11. The contention on behalf of the respondent that the

Xerox copy of the document does not fall within the

meaning of instrument under Section 2 (14) of the Indian

Stamp Act 1899, and so it cannot be admitted into

evidence after collecting deficit stamp duty and penalty

has much substance.

A. Section 2(14) of Indian Stamp Act, 1899 defines "Instrument" as under:-

" includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded."

B. Section 37 of Indian Stamp Act,1899 reads as under:-

Section 37 of Indian Stamp Act says: Admission of improperly stamped instruments: [State Government] may make rules providing that, where an instrument bears a stamp of sufficient amount but of improper description, it may, on payment of the duty with which the same is chargeable, be certified to be duly stamped, and any instrument so certified shall then be deemed to have been duly stamped as from the date of its execution.

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As per Sec. 2(14) of Indian Stamp Act, the document in question being a copy and thus not an instrument within the meaning of Sec. 2(14) and when document is required to be stamped u/s. 35 of Indian Stamp Act, it cannot be allowed to be introduced in evidence when it is not duly stamped and xerox copy of such document need not be stamped and cannot be acted RT upon in view of bar contained in Sec. 35 of Indian Stamp Act, if xerox copies of document permitted, it would certainly circumvent mandatory provisions of Sec.35 of Indian Stamp Act. The photocopy of the document, original of which is lost, cannot be admitted in evidence and that such a document can neither be impounded nor accepted in secondary evidence. In these circumstances this Court is not inclined to allow this petition.

12. In Akkam Laxmi Vs. Thosha Bhoomaiah reported in

2002 (4) ALD Page 808, it was held by a Single Judge of

erstwhile A.P.High Court that a copy of the original

document cannot be called as Instrument as defined

under Section 2(14) of the Indian Stamp Act,1899 and

relevant Para Nos.8 and 9 of the said judgment is quite

relevant and the same is extracted hereunder:-

8. A perusal of Section 35 shows that the said section is in two parts. The first limb pertains to the reception of the

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document in evidence when the document is not duly stamped. The second limb, however, pertains to acting upon the said document. The bar contained in Section 35 of the Act is an absolute bar and it is two fold - firstly it prohibits the reception of an instrument which has not been duly stamped and secondly it inhibits the authority which is expected to receive the same to act upon the same. Section 36 of the Act, however, reads that when an instrument has been admitted in evidence without taking any objection in accordance with Section 35, such admission shall not be called in question at any stage of the suit or proceeding on the ground that the instrument has not been duly stamped. A combined reading of both the sections would show that what was not admissible under the mandatory provisions of Section 35 when admitted inadvertently in evidence without taking any objection in that regard, such admission shall not be called in question at any stage of the suit or proceeding subsequently. Therefore, what Section 36 speaks of, in my considered view, is in regard to the original document itself. A combined reading of Sections 35 and 36 of the Act and the definition of 'instrument' as enjoined under Section 2(14) of the Act would leave no room for any doubt that what is required to be stamped is the original instrument itself and the Act has not envisaged a copy of the original for the purpose of Stamp Act. A copy of the document cannot be called as an instrument and, therefore, it is not required to be stamped.

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9. APROPOS the second point obviously in this case the original agreement of sale, as discussed by me supra, itself has not been duly stamped having been written on a plain paper. When the original instrument which is required to be stamped, in view of the peremptory language in Section 35 of the Act, shall not be allowed to be introduced in evidence when it is not duly stamped and a copy of it need not be stamped and cannot be acted upon in view of the bar contained in the second limb of Section 35 of the Act, allowing a copy of the instrument to be introduced as secondary evidence is nothing but circumventing the provisions of Section 35 of the Act. If a xerox copy were to be permitted, it would certainly circumvent the mandatory provisions of Section 35 of the Act. Therefore, notwithstanding the legal position that a copy of the instrument need not be stamped, the same cannot be permitted to be introduced by means of secondary evidence when the original itself is not duly stamped inasmuch as such a document cannot be acted upon.

13. From the above legal principle what emerges is that

it is only the original document but not Xerox copy that is

required to be stamped and on the basis of the Xerox copy

of the document deficit stamp duty and penalty cannot be

collected.

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This Court opines that the judgments relied upon by

the learned counsel appearing on behalf of the petitioner

do not apply to the facts of the present case.

In view of the aforesaid discussion, this Court finds

that there is no illegality or impropriety in the order dated

27.08.2024 passed by the Junior Civil Judge-cum-Judicial