Chattisgarh High Court
Sudarshan Halwai vs Jivrakhan Lal Gupta on 8 August, 2022
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HIGH COURT OF CHHATTISGARH, BILASPUR
WP227 No. 334 of 2021
Sudarshan Halwai, S/o Late Gokul Prasad Halwai, Aged
About 60 Years, R/o Bus Stand, Pandariya, Police Station
and Tahsil Pandariya and District Kabirdham Chhattisgarh.
---- Petitioner
Versus
1. Jivrakhan Lal Gupta, S/o Late Kamal Narayan Gupta, Aged
About 65 Years, R/o Ward No. 15, Durjaband Para,
Pandariya, Tahsil Pandariya, District Kabirdham
Chhattisgarh.
2. State of Chhattisgarh, Through The Collector, District
Kabirdham, Chhattisgarh. ---- Respondents
For Petitioner : Mr. Ravindra Agrawal, Advocate For Respondent No.1 : Mr. Atul Kumar Kesharwani, Advocate For Respondent No.2/State : Ms. Priyamvada Singh, Deputy Government Advocate Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 08.08.2022
1. The petitioner has filed this instant petition against the order dated 14.06.2021 passed by the Civil Judge Class- II, Pandariya, District Kabirdham, C.G. whereby he has been directed to produce the original copy of exchange deed dated 09.04.1979 for proceeding in accordance with the Indian Stamps Act, 1899 and order dated 05.07.2021 whereby application moved by the petitioner under Order 11 Rule 12 of CPC read with Section 151 of CPC has been rejected by the learned trial Court and order dated 15.07.2021, whereby Page-2 an application moved under Section 65(c) of the Evidence Act has also been rejected.
2. The petitioner/plaintiff filed a Civil Suit claiming relief of declaration on the basis of exchange deed dated 09.04.1979, for declaration of title, possession and permanent injunction over the plot bearing survey No. 160/42 admeasuring 0.08 acres situated at Village Pandariya, District- Kabirdham (C.G.). It was further pleaded that the exchange deed was executed with the consent of the petitioner and the defendant No. 1 and parties were in possession of the respective part of the land after execution of exchange deed, however, defendant No.1 raised dispute and moved an application under Section 250 of Chhattisgarh Land Revenue Code before the Tahsildar and consequently, the petitioner/plaintiff filed the Civil Suit. The defendant No.1 filed the written statement wherein he admitted the fact of exchange of plots but he has stated that dispute exists for different land as against mentioned in the plaint. He further pleaded that the exchange deed is unregistered document and it cannot be admitted in evidence according to the provision of Section 49 of Registration Act and further, the same cannot be admitted in evidence for collateral purpose too.
3. Learned trial Court framed issues and thereafter, the case was fixed for evidence of the plaintiff witnesses. During recording of the evidence of the plaintiff/petitioner, while exhibiting the exchange-deed, an objection was raised by defendant No.1 to the effect that the document is unregistered and not properly stamped, and the original copy of the exchange deed has not been produced, therefore, the Page-3 same cannot be exhibited. On 18.06.2019, learned trial Court sustained the objection raised by defendant No.1 and granted liberty to produce original exchange deed and to pay required stamped duty along with penalty.
4. The order dated 18.06.2019 was challenged before this Court by filing WP (227) No. 754 of 2019 whereby the order passed by the learned trial Court has been modified vide order dated 01.04.2021 holding that "the order impounding of the document is not interfered with, however, it is held that the plaintiff shall be required to make payment of stamp duty with respect of agreement between the parties other than the exchange deed, which may be permissible under the proviso to Section 49 of the Registration Act alongwith the other penalties payable and the proceedings be completed accordingly under the provisions of Stamp Act, 1899."
5. Thereafter, the petitioner/plaintiff moved an application under Section 35 of Indian Stamp Act for impounding of the instrument after payment of adequate stamp duty and penalty as per the agreement. Defendant No.1 raised an objection that only original instrument can be impounded and not a certified copy of the instrument. The learned trial Court vide order dated 14.06.2021 held that instrument is not an original copy, therefore, the same cannot be impounded, however, learned trial Court granted liberty to the petitioner to produce original copy of the exchange deed dated 09.04.1979.
6. After rejection of the application filed under Section 35 of Indian Stamp Act, the petitioner moved an application under Order 11 Rule 12 of the CPC on the ground that the exchange deed was executed in two copies and one copy is Page-4 still in possession of the defendant No.1. The petitioner sought a direction to the defendant No.1 for production of the copy of the exchange deed before the learned trial Court. The defendant No.1 filed reply to the aforesaid and denying the contents of the application stated that the exchange deed was not prepared in two copies and its copy was never handed over to him. The learned trial Court vide order dated 05.07.2021 held that when the defendant No.1 has specifically denied the existence of the exchange deed dated 09.04.1979, therefore, no such order can be passed.
7. Thereafter, the petitioner/plaintiff moved an application under Section 65 (c) of the Evidence Act seeking permission to lead secondary evidence of the contents of the exchange deed dated 09.04.1979 on the ground that the original copy of the said exchange deed is lost and despite best efforts put by him, the said document could not be found.
8. The learned trial Court vide order dated 15.07.2021 held that until and unless the exchange deed is impounded after payment of adequate stamp duty with penalty, it can neither be exhibited nor is admissible in the evidence and thus rejected the application.
9. Learned counsel for the petitioner submits that the execution of exchange deed was admitted by defendant No.1 in his written statement, therefore, at subsequent stage, objection cannot be raised with regard to its admissibility. He would further submit that in WP (227) No. 754 of 2019 order has been passed by this court to impound the exchange deed irrespective of the fact that the document is either original or certified copy and for collateral purposes the document can Page-5 be taken on record. He also submits that the learned trial Court committed illegality in rejecting the applications moved by the petitioner/plaintiff.
10. On the other hand, learned counsel for respondent No.1 Mr. Atul Kumar Kesharwani submits that the exchange deed is not in existence, it is a xerox copy and its true copy cannot be admitted in evidence according to the provisions of Section 35 of Indian Stamps Act and Section 49 of Registration Act. He further submits that only properly stamped and original document can be impounded and true copy or certified copy cannot be permitted by way of secondary evidence, therefore, learned trial Court has rightly rejected the application moved by the petitioner.
11. I have heard the rival submissions advanced by learned counsel for the parties and perused the material available on record.
12. I have gone through the Sections 33 & 35 of the Indian Stamp Act, 1899 and the same are reproduced herein below :-
"33. Examination and impounding of instruments.-- (1) Every person having by law or consent of parties, authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in Page-6 force in [India] when such instrument was executed:
35. Instruments not duly stamped inadmissible in evidence, etc.--No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:"
After going through the above provisions, it is crystal clear that the document by which any right or any liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded, cannot be validated, if the instrument is not duly stamped. Section 33 gives power to the authority to check whether the instrument is duly stamped and if it is not, to take steps to impound the same. Further, Section 35 clearly mandates that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of the parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. Thus, from perusal of the provisions of Sections 2(14), 33, 35 of the Indian Stamps Act, it appears that copy of an instrument cannot be validated, and Section 35 of the Indian Stamps Act only applies when the document is original one. This Section clearly shuts out from evidence, any instrument chargeable with duty unless it is duly stamped.
13. Order 11 Rule 12 of CPC reads as under:
"12. Application for discovery of documents.- Any party may, without filing Page-7 any affidavit, apply to the Court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion be thought fit: Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs."
14. All the issues involved in this case are connected with each other; therefore, they are being dealt together. This Court in Shashank Shekhar and ors. V. Jagdish Prasad Saraf and ors. {WP(227) No. 558 of 2015} reported in 2017 SCC Online Chh 1633 : AIR 2017 Chh 190 : (2017) 5 CGLJ 602 has held as under -
"21.In the matter of Avinash Kumar Chauhan Vs. Vijay Krishna Mishra, Their Lordships of the Supreme Court have also held that there is no prohibition under Section 49 of the Registration Act to receive unregistered document in evidence for collateral purpose but document so tendered should be duly stamped or should comply with the requirement of Section 35 of the Indian Stamp Act. If not stamped, document cannot be received in evidence even for collateral purpose unless it is duly stamped or stamp duty and penalty are paid under Section 35 of the Indian Stamp Act.
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22.In view of the principle of law laid down in the above-stated judgments, it is held that the trial Court is absolutely unjustified in not permitting the petitioners/plaintiffs to exhibit two unregistered Ikarnamas and further unjustified in not taking recourse to Section 33 read with Section 35 of the Act of 1899 for impounding those documents. Therefore, the impugned order is set aside. The trial Court is directed to permit the plaintiffs to exhibit the said documents and thereafter adopt the procedure envisaged in Section 33 read with Section 35 of the Act of 1899 for impounding of those documents and decide the question for which purpose the said documents are permitted to be admitted in evidence (collateral purpose or otherwise) at the time of final hearing as indicated hereinabove and keeping in view the binding observation of the Supreme Court in the matter of Ram Rattan (supra).
15. "An 'instrument' is a document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded" as per Section 2(14) of the Indian Stamp Act. In view of the above definition, it appears that for the purpose of determining the stamp duty and penalty, the original document itself must be produced and not its copy, for the rights or liabilities, will not legally go with such document, if document is not original instrument, it cannot be evaluated by impounding nor could it be admitted as secondary evidence under the Stamp Act.
16. In view of provision under Section 49 of Registration Act, in order to receive an unregistered document in evidence for collateral purposes, the document so tendered should be duly stamped or should comply with the requirements of Section Page-9 35 of Indian Stamp Act. There is catena of decisions in this regard. In Rajah of Bobbili V. Inuganti China Sitarasami Garu's case ILR (1900) 23 Mad 49 : 1899 SCC OnLine PC 24 :-
'The suit was filed by Rajah of Bobbili against his relation Inuganti China Sitarasami Garu wherein, it became necessary for the plaintiff to show that the grant made by the then Rajah of Bobili Sri. Rajah Sveta Chalapati Ranga Rao Bahadur in 1848 was an absolute and unconditional grant. However, he could not produce the deed of grant but produced only copy of it and sought to tender as secondary evidence and since the original instrument itself was insufficiently stamped, the plaintiff was prepared to pay stamp duty and penalty on the copy of the instrument. In that context, the District Judge refused to receive the document and dismissed the suit. The matter went up to Privy Counsel wherein, it was observed as follows:
'10.xxx... These clauses throughout deal with, and exclusively refer to the admission a evidence of original documents which, at the time of their execution, were not stamped at all, or were insufficiently stamped. It is only upon production of the original writ, that the Collector has the power given him, or the duty imposed upon him of assessing and charging the penalty, a duty which he must, in that case, perform by writing an endorsement upon the writ submitted to him, which then, and not till then, becomes probative in law.'
17. In Jupudi Kesava Rao V. Pulavarthi Venkata Subbarao reported in (1971) 3 SCR 590 : (1971) 1 SCC 545:-
relying upon Rajah of Bobbili's case and other decisions, the Apex Court did not agree with the appellants' contention and observed that the first limb of Section 35 shuts out from evidence any instrument chargeable with duty unless it is Page-10 duly stamped and the second limb of Section 35 which relates to "acting upon" the instrument will obviously shut out any secondary evidence of such instrument, because allowing such evidence when the original was not stamped or insufficiently stamped, would tantamount to the document being acted upon. The Apex Court made it clear that proviso (a) to Section 35 is applicable only when the original instrument is actually before the Court of Law and deficit stamp with penalty is paid by the party.'
18. And in Hariom Agrawal V. Prakash Chand Malviya, reported in 2007(8)SCC 514: AIR 2008 SC 166:-
in this case a suit for eviction, wherein the tenant relied upon an agreement dated 28.03.1988 said to be executed by the landlord. He, on the plea that original agreement was stolen, sought to produce a photostat copy of the agreement as secondary evidence by an application which was allowed by the trial Court. The landlord being aggrieved, filed writ petition before the HC which set aside the trial Court's order and directed the trial Court to decide the question whether photocopy of an improperly stamped original document can be received in secondary evidence. The trial Court ordered that the photocopy, whose original was insufficiently stamped, be impugned and sent to Collector for levying stamp duty penalty. The said order was again challenged before the High Court which held that the impugned document which is a photocopy of the agreement, original of which lost, cannot be admitted in evidence. In the appeal the Apex Court observed thus:
Sections 33 or 35 are not concerned with any copy of the instrument and party can only be allowed to rely on the document which is an instrument within the meaning of Section 2(14). There is no scope for the inclusion of the copy Page-11 of the document for the purposes of the Indian Stamp Act.
Law is now no doubt well settled that copy of the instrument cannot be validated by impounding and this cannot be admitted as secondary evidence under the Indian Stamp Act, 1899.
19. From the above factual matrix, the jurisprudence that evolved is, under Section 35 of the Indian Stamp Act, there can be validation only of the original, whether it is stamped or is insufficiently stamped but its copy cannot be validated and acted upon and that in consequence no decree can be passed therein, therefore, such document cannot be validated by impounding and collecting penalty. It also tells that a party who enters into a transaction on insufficiently stamped document carries with him an inherent risk that, in case of the original unregistered transaction,its judicial remedy is lost and copy of the original is of no benefit to establish the rights but the situation would be different, if the document is duly stamped and registered under the relevant law and lost or destroyed, in such a case, copy of the original can be admitted as secondary evidence, since, it does not require any more stamp duty.
20. In case of Hariom Agrawal V. Prakash Chand Malviya (supra), the Hon'ble Supreme Court has dealt with the issue of Section 33, 35 of 2(14) of the Indian Stamp act as well as Sections 63 and 65 of the Evidence Act and held as under:-
"10. It is clear from the decisions of this Court and a plain reading of Sections 33, 35 and 2(14) of the Act that an instrument which is not duly stamped can be impounded and when the required fee and penalty has been paid for such instrument it can be taken in evidence Page-12 under Section 35 of the Stamp Act.
Sections 33 or 35 are not concerned with any copy of the instrument and party can only be allowed to rely on the document which is an instrument within the meaning of Section 2(14). There is no scope for the inclusion of the copy of the document for the purposes of the Stamp Act."
21. Now coming to the issue of secondary evidence. If any party to the suit has laid the foundation for leading of secondary evidence, either in the plaint or in evidence, then, held, secondary evidence cannot be ousted from consideration only because application for permission to lead secondary evidence was not filed and it is equally well settled that secondary evidence by way of oral evidence or copy evidence of document insufficiently stamped is not admissible in suit even though its objection as to its admissibility cannot be taken under the Indian Evidence Act. "Nilkanth Shrihar Thorbole and Ors. V. Hanumant Baburao Magar and Ors. reported in AIR Online 2021 Bom 484 and Hukmi Chand Mosun V. Kushal Chand Duggad, reported in AIR 217 Rajasthan 215 and P.C. Jeweller Ltd. V. National Insurance Company Limited, reported in AIR Online 2019 Del 1350", these decisions itself held that unregistered or unstamped document is not admissible in evidence, as it neither is primary evidence nor secondary evidence. Therefore, rejection of application under Section 65(c) of Evidence Act can't be said to be illegal and arbitrary. Further, defendant No.1 has specifically denied that original copy of the exchange deed was prepared in two sets and that one set is in his possession, therefore, the learned trial court was absolutely justified in rejecting the application filed under Order 11 Rule 12 of CPC.
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22. As a fall out and consequence of the above discussions, the learned trial Court has not committed any illegality in rejecting the applications moved by the petitioner/plaintiff, consequently, the petition is dismissed. No order as to cost.
Sd/-
(Rakesh Mohan Pandey) Judge Nadim