MUSTABA AHMED @ HAPPY Vs. SMT. MAKSOODA MIRZA

JUDGEMENT

(1.) The petitioner has filed the present petition under Article 227 of the Constitution of India challenging the order dated 02.03.2017 passed by the First Additional District Judge, Seoni in Civil Suit No.106A/2009, whereby the trial Court has allowed the application preferred by the respondent under Section 65 of the Indian Evidence Act, 1872 (hereinafter in short referred to as "the Act, 1872").

(2.) The respondent/plaintiff has filed a civil suit for specific performance of contract. The petitioner filed the written statement denying the plaint allegations. The suit is based on photo-copy of the Ikrarnama dated 02.01.2004. The respondent/plaintiff has earlier filed an application for necessary direction to the Office of Sub-Registrar for impounding the Ikrarnama dated 02.01.2004. The petitioner filed reply to the said application. It is specifically mentioned in the reply that the copy filed by the plaintiff is photo-copy of the Ikrarnama and therefore, same cannot be impounded or even subjected to secondary evidence as the same is not duly stamped. The trial Court vide order dated 27.04.2016 has rejected the said application. Being aggrieved by the said order, the respondent/plaintiff has filed a writ petition No. 8139/2016 before this Court. This Court vide order dated 01.02.2017 has dismissed the said writ petition and upheld the order passed by the trial Court. That in order to bypass the order passed by this Court, the respondent/plaintiff has filed an application under Section 65 of the Indian Evidence Act to lead oral secondary evidence to prove the contents of Ikrarnama. The trial Court vide order dated 02.03.2017 has allowed the said application. Being aggrieved by that order, the petitioner has filed the present petition.

(3.) Learned counsel for the petitioner submits that the trial Court has erred in allowing the application submitted by the respondent under Section 65 of the Act, 1872. It is submitted that the secondary evidence either by way of oral evidence to prove the contents of the un-stamped instrument or copy of it governed under Section 63 of the Act, 1872 would not fulfil the requirement of the proviso. It is further submitted that the trial Court has failed to consider that the party can only be allowed to rely upon the document, which is an instrument within the meaning of Section 2 (14) of the Indian Stamp Act , 1899 (hereinafter in short referred to as the "the Act, 1899" for the purpose of Section 35 of the Act, 1899. It is further submitted that Section 35 of the Act, 1899 deals with original instrument and not their copies. The applicability of Section 36 of the Act, 1899 does not extend to secondary evidence adduced or sought to be adduced to prove the contents of the document, which is unstamped or insufficiently stamped. It is further submitted that earlier this Court has dismissed the writ petition preferred by the respondent/plaintiff and therefore, to bypass the earlier order passed by this Court, the trial Court should not have entertained the application. In support of his submission, learned counsel for the petitioner relied on the decision in the case of Abhiyank Builders Ltd. and another Vs. Daulat Singh and Others , 2016 (2) M.P.L.J., 450.