Punjab-Haryana High Court
Kartar Singh vs Mohinder Singh on 12 November, 1970
Equivalent citations: AIR 1971 PUNJAB AND HARYANA 458
ORDER
1. Mohinder Singh filed a suit against Kartar Singh for possession of a shop, situate in Bhadson , Tehsil Nabha. The plaintiff's allegations were that he had given the said shop to the defendant on a monthly rent of Rs. 17/- in 1964 for six months, when the latter executed a rent note in his favour on 23rd October, 1964. Later on, the rent was increased to Rs. 20/-, which the defendant went on paying up to the month of October 1968. The period for which the said shop had been given on rent to the defendant had expired. The plaintiff further alleged that the shop was required by him for his personal needs and it was also averred by him that the arrears of rent were due from the defendant.
2. The suit was contested by the defendant. After the plaintiff had concluded his evidence in the case and the defendant had started producing his evidence, the latter made an application to the Court that he be permitted to produce secondary evidence with regard to the rent-deed, which was executed by him in favour of the plaintiff in the month of October 1965, in which the rent was fixed at Rs. 20/- per month and that deed was not being produced by the plaintiff. According to him, the said rent note had been written in the Bahi of the plaintiff.
3. This application was resisted by the plaintiff. According to him, no rent-deed was executed in 1965 and the rent had been orally increased from the original rent of Rs. 17/- to Rs. 20/- per month. He stated that the defendant could not be allowed to lead secondary evidence regarding the alleged rent note, because even the alleged original rent note was inadmissible in evidence as it required stamp duty and registration.
4. By her order dated 24th April, 1970, the trial Judge rejected the application of the defendant and held that he could not be allowed to lead secondary evidence of the alleged rent note. Against this decision, the present revision petition has been filed by Kartar Singh, defendant.
5. After hearing the counsel for the parties, I find that there is no merit in this petition. It is undisputed that no secondary evidence can be permitted to be led regarding a document, which itself is not admissible in evidence. The alleged rent note in the Bahi of the plaintiff, undoubtedly, required stamp duty. According to Section 35 of the Indian Stamp Act, 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 public officer, unless such instrument is duly stamped. There are certain exceptions given in this section, but the present case is not covered by any of them. That being so, the alleged rent note was inadmissible in evidence. If the alleged original is itself inadmissible in evidence, then no secondary evidence regarding its contents can under the law, be given. In Ladha Ram Lakhi Ram Arora v. Hari Chand, AIR 1938 Lah 90, Bhide, j. observes that where the entry as to a mortgage is made in an ordinary Bahi and is not duly stamped though required by the Stamp Act, the secondary evidence of the contents of the entry is wholly inadmissible. Similar view was taken by Teja Singh, J. in Mt. Halima v. Emperor, AIR 1947 Lah 306, where it was held that if a document that was required to be stamped was not stamped and was not forthcoming, no secondary evidence regarding its contents thereof could be admitted in evidence and if the secondary evidence was admitted under the erroneous impression that it was admissible, it should be altogether ruled out.
6. That being so, the impugned order passed by the trial Judge was in accordance with law. It might also be mentioned that in the written statement filed by the defendant, he had categorically stated that the execution of any rent-deed in favour of the plaintiff was wrong and denied. In face of this averment, it is not understood as to how later on he took up the plea that he had executed a rent note in the Bahi of the plaintiff in October 1965.
7. In view of what I have said above, this petition fails and is dismissed, but with no order as to costs.
8. Petition dismissed.