RAVI SETIA Vs. RAMESH CHANDER

JUDGEMENT

(1.) During the course of trial, the defendants sought to produce a photocopy of an affidavit as evidence of alleged partition that had already taken place. The reception of the document was opposed on the ground that only the copy had been filed and the original was not produced. The further objection was that it was unstamped and unregistered and therefore, it could not be received.

(2.) So far as the production of photocopy is concerned, the photocopy itself was secured through a mechanical process which ensures the authenticity of the original and it constitutes secondary evidence as per Section 63(2) of the Indian Evidence Act. Section 65 details several circumstances when secondary evidence can be adduced. Loss of original is one such circumstance and the contention of the defendant is that the document has been lost and DW-8 Ramesh Chander had stated on oath about the loss of such original. If a basis for production of secondary evidence is given, the correctness of such basis could be tested only at the time of trial and the document cannot be kept out of consideration by mere objection that secondary evidence could not be produced. Secondary evidence is not totally an anathema under the scheme of the Indian Evidence Act. The trial Court has observed that the correctness of the statement regarding the existence of the original would be decided finally at the time final disposal of the case. The approach, in my view, is correct and accords with law.

(3.) As regards the contention that the document is unregistered and unstamped and therefore could not be received in evidence would be possible of examination only if the copy of the document itself is produced before the Court. The revision petitioner who assails the decision of the trial Court has not filed even the copy of the document and it is not possible for me to appraise the correctness of the findings regarding the admissibility of the document. It has been held by the decision of the Hon'ble Supreme Court in Bipin Shgautilal Panch Versus State of Gujarat-(2001) 3 SCC 1 that the practice of stalling trial by taking objection to the admissibility of the document could be obviated if only Courts reserve the issue regarding the admissibility to be decided at the time of arguments. That is precisely the procedure that the Court has adopted. The unregistered document is not prohibited for all purposes. Section 49 of the Registration Act provides for certain exceptions, when a document which is required by law to be registered is not registered and when an unregistered document is filed in Court. It could be received, for instance, a collateral purpose. The objection regarding the unstamped nature of document is something more fundamental. While Section 49 of the Registration Act prohibits the reception of a document as evidence in a trial, the inadmissibility for unstamped or insufficiently stamped document is set through a bar contained under Section 35 of the Stamp Act which states that no document which is required by law to be stamped shall be used in evidence. The distinction between the use of as evidence and in evidence can not be missed, as pointed out in several decisions of various High Courts. (vide Mulla's Registration Act, pages 232 to 234 9th Edition). The trial Court that observed that the effect of an unstamped document would be considered at the time of arguments is inappropriate and out of sync with the decision of the Hon'ble Supreme Court referred to above. The trial Court shall now examine whether the document requires to be stamped if it falls within any of the enumerated categories of the Schedule of the Indian Stamp Act. Normally an affidavit would not be required to be stamped. On the other hand, if the affidavit contains recitals of any document that would require to be stamped, the mere nomenclature employed shall not be allowed to prevail. The Court shall therefore examine the actual purport of the document and if it is found that the document would require to be stamped, the Court shall impound the same and direct the stamp duty penalty to be paid. If the party producing the document would pay such penalty, the document would stand for consideration at the trial. If such stamp duty is not paid, the document shall be eschewed from evidence.