GURCHARAN SINGH Vs. HARBHAGWAN AND OTHERS

JUDGEMENT

(1.) BY way of this petition under section 115 of the Code of Civil Procedure, the order of the learned Sub Judge 1st Class, Jullundur, dated January 10, 1979, permitting the leading of secondary evidence of the alleged agreement had been challenged.

(2.) THE learned counsel for the petitioner does not contest the finding of the trial court that the loss of the document has been satisfactorily proved but has urged that the alleged original agreement being unstamped, its secondary evidence cannot be permitted to be led. The learned counsel for the respondent, on the other hand, contended that the stage for this objection has not yet arrived and the same would be open to the petitioner when the photo stat copy marked as Exhibit 'A' would be tendered in evidence. The legal proposition that the secondary evidence of a document which is unstamped cannot be allowed has not been seriously disputed. Otherwise, also, this matter has been concluded by a Supreme Court Judgment in Jupudi Kesawa Rao v. Pulavarthi Venkata Subborao : A.I.R. 1971 S.C. 1070. The contention that the stage for raising such objection has not arrived as yet cannot be sustained. Before secondary evidence of a document can be allowed to be led two things have to be satisfied : (1) that the original document was properly stamped and admissible in evidence and (2) that one of the conditions enumerated in section 65 of the Indian Evidence Act entitling the leading of secondary evidence has been established. The objection that the original document is unstamped is, therefore, relevant at this stage when permission to lead secondary evidence is allowed.

(3.) IT has been admitted in his statement by the special attorney of the respondent that document marked Exhibit 'A' is a photostat copy of the alleged agreement to sell A bare look at this document would show that it bears the revenue stamp of 10 paise whereas the agreement to sell has to be written on a stamped paper worth Rs. 2.25 under Article 5, Schedule I of the Indian Stamp Act The original agreement to sell, therefore, was not properly stamped and as such secondary evidence to prove its contents cannot be allowed