ANAND JOSHI Vs. SANJAY PARASHAR

JUDGEMENT

(1.) In this petition under Article 227 of the Constitution of India, the petitioners have assailed the validity of the order dated 31.3.2016 passed by the trial Court in so far as it pertains to rejection of the application filed by the petitioners under Section 65 of the Evidence Act. Learned counsel for the petitioner submitted that the petitioner has filed a suit seeking the relief of declaration, possession as well as permanent injunction. The petitioner was not in possession of the alleged agreement, therefore, he has filed an application under Section 65 of the Evidence Act to lead secondary evidence and has sought the relief of specific performance of the contract which is founded on the document in question. However, the aforesaid application has been rejected by the trial Court on the ground that from perusal of the agreement in question it transpires that the same is not an agreement for sale but in fact is a sale deed and since it is not registered, therefore, the application under Section 65 of the Evidence Act cannot be allowed. On the other hand, learned counsel for respondent No.1 has submitted that since the document in question is not properly stamped, the same is not admissible in evidence. In support of his submission, he has placed reliance on a decision rendered by a Bench of this Court in the case of Sugreeva Prasad Dubey and others Vs. Sitaram Dubey reported in 2004(1) M.P.H.T. 488. It is further submitted that since the original agreement is not filed, therefore, even under Proviso to Section 49 of The Registration Act, 1908, the document cannot be looked into even if for collateral purposes.

(2.) I have considered the submissions made by learned counsel for the parties.

(3.) From careful scrutiny of the impugned order passed by the trial Court, it is evident that the trial Court nowhere has recorded the finding that the document is duly stamped. Therefore, the submission made on behalf of the respondent No.1 that since the document is not duly stamped and, therefore, the application under Section 65 of the Evidence Act is not factually incorrect but sans substance. The petitioner in the suit has sought the relief of specific performance of the contract is founded on the document in question. Therefore, in view of Proviso under Section 49 of The Registration Act, the same can be looked into for collateral purposes. However, the aforesaid aspect of the matter has not been considered by the trial Court.