HARIOM AGRAWAL Vs. PRAKASH CHAND MALVIYA

JUDGEMENT

(1.) LEAVE granted.

(2.) THE facts necessary for deciding the question involved in the case are that one Maganlal Jain was the original tenant of Prakash Chand Malviya, the respondent -landlord. Maganlal Jain had given the shop to the appellant for carrying out the business. On a dispute being arisen between the respondent -landlord, the original tenant Maganlal Jain and the appellant herein, an agreement was executed on 28.3.1988 by the respondent -landlord and the appellant (subsequent tenant), whereby the landlord tenanted the shop to the appellant on payment of an advance amount of Rs. 4,75,000/ - which was received by the landlord in cash in front of the witnesses. The agreement further provided that in case the landlord requires eviction of the tenant from the shop he will have to give notice of 6 months to the landlord and the landlord will pay back RsA,75,000/ - to the tenant. This document was affixed with a notarial stamp of Rs4/ -. Under the Indian Stamp Act, 1899 (for short "the Act"), agreement of this nature requires affixture of a stamp of Re.1/ - under Schedule I, item 42 of the said Act.

(3.) ON being aggrieved by the order of the trial Court, the respondent -landlord filed a writ petition before the High Court. The High Court set aside the order of the trial Court and remitted the matter back to decide the question as to whether a photocopy of an improperly stamped original document can be received in secondary evidence. After hearing the parties, the trial Court by its order dated 9.8.2005 ordered that the document be impounded, it being insufficiently stamped, the document was sent to the Collector of Stamps for affixing appropriate stamp duty and thereafter for sending the document back to the Court. This order was challenged by the respondent in a review petition which was dismissed by the trial Court. Thereafter, a writ petition was filed before the High Court. The High Court by its judgment dated 3.5.2006, held that the impugned document which is a photocopy of the agreement, original of which is lost, cannot be admitted in evidence; and that such a document can neither be impounded nor can be accepted in secondary evidence.