SUNIL KUMAR Vs. BABU BHAI

JUDGEMENT

(1.) Being aggrieved by the order dated 11-2-2010 passed by 4th Addl. District Judge, Mandsaur in Civil Suit No. 8-A/2009, whereby application filed by the respondent No. 1 for taking photocopy of the family arrangement dated 30-1-94 on record as secondary evidence was allowed, present petition has been filed. Short facts of the case are that respondent No. 1 filed a suit for declaration, specific performance and permanent injunction, in which the reliance was placed on a family arrangement, which took place on 30-1-94. The suit was contested by the petitioners on various grounds. On the basis of the pleadings of the parties learned Trial Court framed the issues and fixed the case for evidence, wherein it was prayed that respondent No. 1 be permitted to produce photocopy of the family arrangement dated 30-1-94 in secondary evidence as the original is in possession of petitioners. The application was contested by the petitioners. After hearing the parties, learned Court below allowed the application and permitted the respondent No. 1 to adduce the family arrangement dated 30-1-94 in secondary evidence against which present petition has been filed.

(2.) Learned Counsel for petitioner argued at length and submits that impugned order passed by learned Court below is illegal, incorrect and deserves to be set aside. Learned Counsel submits that the document, which is not properly stamped cannot be allowed to be adduced in secondary evidence. It is submitted that the photocopy of the family arrangement, which has alleged to have taken place between the parties on 30-1-94 and the original is not properly stamped, therefore, respondent No. 1 could not have been permitted by the learned Court below to adduce the same in secondary evidence. Reliance is placed on a decision of Hon'ble Apex Court in the matter of Hariom Agrawal Vs. Parkas Chand Malviya, 2007 8 SCC 514, wherein the Hon'ble Apex Court has held that it is now well settled that copy of the instrument cannot be validated by impounding and it cannot be admitted as secondary evidence under the Stamp Act, 1899. From the decisions of the Supreme Court and a plain reading of Sections 33, 35 and 2 (14) of the Stamp Act, 1899. it is clear 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. Section 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) of the Stamp Act. The instrument as per definition under Section 2 (14) has a reference to the original instrument. There is no scope for the inclusion of the copy of the document for the purposes of the Stamp Act.

(3.) Further reliance is placed on a decision in the matter of Avinash Kumar Chauhan Vs. Vijay Krishna Muslim, 2009 3 MPHT 6 , wherein the Hon'ble Apex Court has observed that even though there is no prohibition under Section 49 of Registration Act to receive an unregistered document in evidence for collateral purpose. But document so tendered should be duly stamped or should comply with requirements of Section 35 of Stamps Act, if not stamped as a document cannot be received in evidence even for collateral purpose unless it is duly stamped. Contention of appellant that document was admissible for collateral purpose was held not correct.