BEERAN HAJI Vs. ALI

JUDGEMENT

(1.) In a rent control petition for eviction, during trial, an attempt was made by the tenant to cross examine the landlord with reference to the photocopies of the rent agreement and to mark the same. The landlord raised an objection but that has been overruled by a speaking order. This order is in question by way of a petition under Article 227 of the Constitution. There are two issues involved in this case, namely, (i) marking of the photocopy and, (ii) insufficiency of stamp duty borne on the instrument.

(2.) The dispute as above has arisen in the context of the landlord complaining that the tenant is in occupation of 11 rooms belonging to the landlord. The tenant contended that he is occupying only 7 rooms, as a tenant. The landlord claims that the rental arrangement was an oral lease. The tenant claims that the rental agreement was based on a written lease deed and the original of written deed is with the landlord. The landlord denied existence of the original lease deed.

(3.) The photocopy is in the nature of secondary evidence. Sec. 65 of the Indian Evidence Act states the cases in which secondary evidence relating to documents may be given. The original lease deed, according to the tenant, is in the possession of the landlord. The landlord denies the same. Sec. 66 of the Evidence Act says about rules of serving notice to adduce secondary evidence alleged to be in possession of the party with whom the original is kept. Without following the procedure under Sec. 66, the secondary evidence of a document, the original of which is with another party, cannot be adduced. There is also serious dispute as to the stamp duty borne on the instrument. No doubt, insufficiently stamped photocopy of a document cannot be impounded, as it cannot be treated as an instrument for the purpose of stamp duty. However, when photocopy is sought to be received as a secondary evidence, the document must satisfy the condition for admissibility in evidence. Under the Kerala Stamp Act, 1959 an instrument not duly stamped is inadmissible in evidence. Sec. 34 of the Kerala Stamp Act prohibits any person/ authority to receive evidence of instrument not duly stamped.