Rajasthan High Court - Jodhpur
Prakash Mehta vs Umesh Chandra Gupta on 11 February, 2022
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 10009/2019
Prakash Mehta S/o Shri Rameshwar Mehta, Aged About 37
Years, By Caste Brahmin, R/o Isarwara, Presently House No. 68,
Gali No. 3, Rateetlai, Banswara, Tehsil And District Banswara.
----Petitioner
Versus
Umesh Chandra Gupta S/o Shri Kachhimalji Gupta, By Caste
Agarwal, R/o Viman Sadan, Commercial Area, Banswara, Tehsil
And District Banswara.
----Respondent
For Petitioner(s) : Mr. Suresh Shrimali
For Respondent(s) : Mr. Mohit Singhvi
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 11/02/2022
1. In the wake of instant surge in COVID - 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.
2. The petitioner has preferred this writ petition with the following prayer:
"It is, therefore, most respectfully prayed on behalf of petitioner that the writ petition may kindly be allowed and by an appropriate writ, order or direction:-
The impugned order dated 30.05.2019 (Annexure-9) passed by the learned Rent Tribunal, Banswara in Rent Control Case No. 05/2013, may kindly be quashed and set aside."
3. Learned counsel for the petitioner submits that the facts in brief are, that the respondent filed a petition before the learned (Downloaded on 25/12/2022 at 09:24:24 PM) (2 of 31) [CW-10009/2019] Rent Tribunal, Banswara alleging that he is landlord and the petitioner is his tenant, of the suit premises in question. And that the respondent alleged that the suit premises in question was originally let out to one Mr. Ghanshyam Lal, through the execution of a rent note on 26.04.1994, and that upon his death, his widow and daughter continued to reside in the suit premises in question as tenant. And that, after the death of the widow of Late Mr. Ghanshyamlal, the daughter (Smt. Chandra @ Chandrika) continued to reside in the suit premises in question, along with the present petitioner, alleged to be her husband, and therefore, the respondent sought eviction of the petitioner from the suit premises in question, while alleging him to be his tenant.
4. Learned counsel for the petitioner while denying the relationship of the landlord and tenant between the parties, submits that the petitioner is the sole owner of the suit premises in question, and that rent was never paid by the petitioner nor any of his ancestors at any time in the past, to the respondent, and that the averments so made by the respondent in the petition before the learned Rent Tribunal are incorrect and false.
5. Learned counsel for the petitioner further submits that the petitioner's ancestors, through the execution of an agreement to sale, executed on behalf of owner of the suit property by his authorized representative, took over possession of the suit premises in question after payment of due consideration towards such sale. And that, the rent note so produced by the respondent is a false document and a forgery.
6. Learned counsel for the petitioner further submits that despite the fact that the eviction petition was filed in 2013, the (Downloaded on 25/12/2022 at 09:24:24 PM) (3 of 31) [CW-10009/2019] respondent in year 2017, after a delay of 4 years filed an application under Order 11 Rule 12 and Rule 14 CPC, 1908 and Section 65 of the Indian Evidence Act, 1872, with the averment that the photocopy of the rent note so produced, was attested by the concerned Government Authority and that the original rent note was in the possession of the petitioner, and thus the same be called from the petitioner; in the absence of production of the original rent note, the respondent be permitted to lead secondary evidence through the production of the photocopy of the said rent note so sought to be produced.
7. Learned counsel for the petitioner further submits that the averments so made by the respondent in the aforementioned application, are false, as the photocopy of the alleged rent note is itself a forgery, and that an F.I.R. was filed by the petitioner to that very effect. And that, the requirement of the provision of law under Section 65A of the Indian Evidence Act, 1872 were not duly fulfilled by the respondent.
8. Learned counsel for the petitioner further submits that a written legal objection was also submitted stating that the alleged photocopy of the rent note was executed with insufficient stamp duty as in the rent note, the rent was mentioned as Rs. 1,500/- per month and executed for a period of 11 months. And that, if the original document itself has not been sufficiently stamped, then the same applies to the photocopied document as well, so as to make it inadmissible in evidence.
9. Learned counsel for the petitioner further submits that the photocopy of the rent note in question so sought to be brought on record by the respondent through his aforementioned application, (Downloaded on 25/12/2022 at 09:24:24 PM) (4 of 31) [CW-10009/2019] was supposedly executed before the year 1998 and that therefore, the Rajasthan Stamp Law (Adaptation) Act, 1952 (hereinafter referred to as 'the Act of 1952') would apply to the document in question.
9.1 Learned counsel for the petitioner drew the attention of this Court to Articles 15, and 35 (as complimented by Schedule II to the Act of 1952). The said Article 15 revalues the amount of stamp duty payable, accordingly.
The relevant portions of the aforementioned Articles read as follows:
"15. Bond as defined by sub-sec.(5) of sec.2 not being a debenture and not otherwise provided for by this Act or by the Court Fees Act, 1870 (Central Act 7 of 1870), as adapted to Rajasthan -
Where the amount of value Upto 8-3-1976 Tewenty Paise secured does not exceed Rs.10/- from 9-3-1976 Fifty Paise from 7-4-1979 Seventy five Paise from 18-5-1987 Two rupees Where it exceeds Rs.10/- and does Upto 8-3-1976 forty Paise not exceed Rs.50/- from 9-3-1976 One rupee from 7-4-1979 One rupee twenty five Paise from 18-5-1987 Two rupees Where it exceeds Rs.50/- and does Upto 8-3-1976 Seventy five paise not exceed Rs.100/- from 9-3-1976 one rupees seventy five Paise from 7-4-1979 Two rupees twenty five Paise from 18-5-1987 Two rupees Where it exceeds Rs.100/- and Upto 8-3-1976 One rupees and does not exceed Rs.200/- fifty Paise from 9-3-1976 Three rupees and Fifty Paise from 7-4-1979 Four rupees fifty paise from 18-5-1987 five rupees Where it exceeds Rs.200/- and Upto 8-3-1976 Two rupees and does not exceed Rs.300/- twenty five paise from 9-3-1976 Five rupees and twenty five paise from 7-4-1979 Six rupees seventy (Downloaded on 25/12/2022 at 09:24:24 PM) (5 of 31) [CW-10009/2019] five Paise from 18-5-1987 Five rupees Where it exceeds Rs.300/- and Upto 8-3-1976 Three rupees does not exceed Rs.400/- from 9-3-1976 Six rupees seventy five paise from 7-4-1979 Eight rupees fifty paise from 18-5-1987 Ten rupees Where it exceeds Rs.400/- and Upto 8-3-1976 Three rupees and does not exceed Rs.500/- seventy five paise from 9-3-1976 Eight rupees Fifty Paise from 7-4-1979 Ten rupees Seventy five Paise from 18-5-1987 Ten rupees Where it exceeds Rs.500/- and Upto 8-3-1976 Six rupees does not exceed Rs.600/- from 9-3-1976 Thirteen rupees fifty paise from 7-4-1979 Seventeen rupees from 18-5-1987 Thirty rupees Where it exceeds Rs.600/- and Upto 8-3-1976 Seven rupees does not exceed Rs.700/- from 9-3-1976 Fifteen rupees seventy five paise from 7-4-1979 Nineteen rupees seventy five paise from 18-5-1987 Thirty rupees Where it exceeds Rs.700/- and Upto 8-3-1976 Eight rupees does not exceed Rs.800/- from 9-3-1976 Eighteen rupees from 7-4-1979 Twenty two rupees fifty paise from 18-5-1987 Thirty rupees Where it exceeds Rs.800/- and Upto 8-3-1976 Nine rupees does not exceed Rs.900/- from 9-3-1976 Nineteen rupees twenty five paise from 7-4-1979 Twenty four rupees from 18-5-1987 Thirty rupees Where it exceeds Rs.900/- and Upto 8-3-1976 Ten rupees does not exceed Rs.1,000/- from 9-3-1976 Twenty two rupees fifty paise from 7-4-1979 Twenty eight rupees from 18-5-1987 Thirty rupees Where it exceeds Rs.1,000/- but Upto 8-3-1976 Five rupees does not exceed Rs.50,000/- for from 9-3-1976 Elevent rupees every Rs.500/- or part in excess of twenty-five paise Rs.1,000/- from 7-4-1979 Fourteen rupees from 18-5-1987 Fifteen rupees Where it exceeds Rs.50,000/- for Upto 8-3-1976 five rupees every Rs.500/- or part in excess of from 9-3-1976 Eighteen rupees Rs.50,000/- from 7-4-1979 Twenty-two rupees from 18-5-1987 Twenty Five rupees (Downloaded on 25/12/2022 at 09:24:24 PM) (6 of 31) [CW-10009/2019]
35. 1 2
35. Lease, including and under lease, or sub-lease and any agreement to let or sub-let -
(a) where by such lease, the rent is fixed and no premium is paid or delivered-
(i) where the lease purports to be The same duty as on a Bond for a term of less than one year; (no.15) for the whole amount payable or deliverable under such lease.
(ii) where the lease purports to be The same duty as on a Bond for a term of not less than one (No.15) for the amount or value of year but not more than three the average annual rent reserved. years;
(iii) where the lease purports to be The same duty as on a for a term in excess of three Conveyance (No.23) for a years; consideration equal to the amount or value of the average annual rent reserved.
(iv) where the lease does not The same duty as on a purport to be for any definite Conveyance (No.23) for a term; consideration equal to the amount or value of the average annual rent which would be paid or delivered for the first ten years, if the lease continued so long.
(v) where the lease purports to be The same duty as on a in perpetuity. Conveyance (No.23) for a consideration equal to one-fifth of the whole amount of rents which would be paid or delivered in respect of the first fifty years of the lease.
(b) where the lease is granted for The same duty as on a a fine or premium or for money Conveyance (No.23) for a advanced and where no rent is consideration equal to the amount (Downloaded on 25/12/2022 at 09:24:24 PM) (7 of 31) [CW-10009/2019] reserved. or value of such fine or premium or advance as setforth in the lease.
(c) where the lease is granted for The same duty as on a a fine or premium or for money Conveyance (No.23) for a advanced in addition to rent consideration equal to the amount reserved. or value of such fine or premium or advance as set forth in the lease, in addition to the duty which would have been payable on such lease, if no fine or premium or advance had been paid or delivered:
Provided that in any case when an agreement to lease, is stamped with the ad valorem stamp required for a lease, and a lease in pursuance of such agreement is subsequently executed, the duty on such lease shall not exceed five rupees.
Exemptions
(a) Lease executed in the case of a cultivator and for the purposes of cultivation (including a lease of trees for the production of food or drink) 9.2 Learned counsel further drew the attention of this Court to section 91 of the Rajasthan Stamp Act of 1998, which reads as follows:
"91. Repeal and Savings -
(1) The Indian Stamp Act, 1899, as adapted in Rajasthan under the Rajasthan Stamp Law (Adaptation) Act, 1952 (No. VII of 1952), except in so far as it relates to documents specified in entry 91 of List I in the Seventh Schedule to the Constitution of India, is hereby repealed and the provisions of the Rajasthan General Clauses Act, 1955 (Downloaded on 25/12/2022 at 09:24:24 PM) (8 of 31) [CW-10009/2019] (Rajasthan Act 8 of 1955), shall apply to such repeal:
Provided that the repeal hereby shall not affect,--
(i) any right, title, obligation or liability already acquired, accrued or incurred or anything done or suffered;
(ii) any legal proceeding or remedy in respect of any such right, title, obligation or liability; under the provisions of the enactment hereby repealed and any such proceeding may be instituted, continued and disposed of and any such remedy may be enforced as if this Act had not been passed.
(2) Any appointment, notification, notice, order, rule or form made or issued under the enactment hereby repealed shall be deemed to have been made or issued under the provisions of this Act, in so far as such appointment, notification, notice, order, rule or form is not inconsistent with the provisions of this Act and shall continue in force, unless and until it is superseded by an appointment, notification, notice, order, rule or form made or issued under this Act."
10. Learned counsel for the petitioner placed reliance on the following precedent case laws in support of his aforementioned submissions:
10.1 Pooram Singh Vs. Hetram & Ors., 2015(3) DNJ (Raj.) 1141, wherein on the issue as to the admission of a photocopy of a document in secondary evidence, a Coordinate Bench of this Hon'ble Court held the following:
"10. For permitting production of secondary evidence qua the document Annexure-7, the petitioner was required to establish the existence of the document, the document does not indicate as to for what purpose and before which authority the said document was produced/was to be produced and, therefore, the trial court was justified in observing that the petitioner has failed to even produce affidavits of the scribe and the witness to the said document for establishing the existence of the document, in (Downloaded on 25/12/2022 at 09:24:24 PM) (9 of 31) [CW-10009/2019] absence whereof, the trial court was justified in dismissing the application filed by the petitioner.
Consequently, there is no substance in the writ petition and the same is, therefore, dismissed."
10.2 Bhanwar Lal Vs. The District Judge, Sirohi & Anr., 2008(1) DNJ (Raj.) 2171, wherein a Coordinate Bench of this Hon'ble Court, observed as under:
"2. It remains settled proposition of law (vide State of Bihar Vs. M/s. Karam Chand Thapar & Brothers Ltd. : AIR 1962 SC 110, Jupudi Kesava Rao Vs. Pulavarthi Venkata Subbarao & Ors. : AIR 1971 SC 1070 and Shanker Lal & Ors. Vs. The Civil Judge (Jr. Div.) Shahpura & Ors. : 2006 (3) RLW 2049) that if the original document is not carrying requisite stamp duty, permission to lead its secondary evidence cannot be granted for the fundamental reason that deficiency in stamp duty cannot be filled up on the copy of the document."
10.3 In Hukmi Chand Mosun Vs. Kushal Chand Duggad 2017 (4) WLC (Raj.) 74, the Coordinate Bench of this Hon'ble Court held asunder:
"8. In Smt. J. Yashoda v. Smt. K. Shobha Rani MANU/SC/7314/2007 : (2007) 5 SCC 730 : (AIR 2007 SC 1721) the Apex Court held that to be entitled to lead secondary evidence it is necessary for the party seeking such indulgence to prove existence and execution of the original document. A three Judge Bench of the Apex Court in the case of Ashok Dulichand v. Madahavlal Dube & Anr. MANU/SC/0278/1975 : (1975) 4 SCC 664 : (AIR 1975 SC 1748) held in para 7: 7. There was also no other material on the record to indicate that the original document was in the possession of respondent No. 1. The appellant further failed to explain as to what were the circumstances under which the photostat copy was prepared and who was in possession of the original document at the time its photostat was taken.
Respondent No. 1 in his affidavit denied being in possession of (Downloaded on 25/12/2022 at 09:24:24 PM) (10 of 31) [CW-10009/2019] or having anything to do with such a document. The photostat copy appeared to the High Court to be not above suspicion. In view of all the circumstance, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court.
9. In the case of U. Sree v. U. Srinivas MANU/SC/1086/2012 :
(2013) 2 SCC 114 : (AIR 2013 SC 415) the Apex Court has held that refusal of the existence of the document by the opposite party in a trial in an application under Orders 11, 12 and 14, CPC moved by the other is by itself not a reason for permitting the leading of secondary evidence without anything more. Nawab Singh, MANU/SC/0329/1999 : AIR 1999 SC 1668 (supra) states that suspicion as to the secondary evidence should not lead to dismissal of an application under Section 65 of the Evidence Act. It does not however say that secondary evidence should be recklessly permitted without strict scrutiny by the Court. The scrutiny has to be strict as for any exception to apply. Secondary evidence being admitted is an exception to the rule of proving facts by primary evidence.
Besides Nawab Singh (supra) was a judgment rendered by two Judges as against Ashok Dulichand (MANU/SC/0278/1975 : AIR 1975 SC 1748) (supra) rendered by a three Judge Bench much prior where it was held that overall suspicious circumstances qua a document sought to be admitted in evidence as secondary evidence can lead to dismissal of an application under Section 65 of the Evidence Act. Reliance by Mr. Raj at Ranjan on the judgment in the case of Mst. Bibi Aisha and Ors. (MANU/SC/0376/1968 : AIR 1969 SC 253) (supra) is misplaced as the said case related to a matter under Section 65(1) of the Evidence Act and not Section 65(a) thereof as in the instant case. Further in Mst. Bibi Aisha and Ors. (supra) the document in issue therein was admitted to exist. Not so here.
10. In the context of the dominant view in law aforesaid as evident from the various judgments of the Apex Court, it is evident that the application for, leading secondary evidence qua the agreement dated 28.06.2006 on basis of a photocopy filed by the tenant was rightly dismissed by the trial court. The (Downloaded on 25/12/2022 at 09:24:24 PM) (11 of 31) [CW-10009/2019] circumstances in which the purported photocopy of the alleged agreement, dated 28.06.2006 was made were not even adverted to in the application. It was not stated as to in whose possession the original was when the photocopy was made, where when and by whom it was made, as also the purpose of the alleged original being photocopied. It is also extremely relevant to note that the purported agreement, dated 28.06.2006 was between one JKJ and Sons Jewellers and the landlord and does not even refer to the tenant. It was not stated in the application under Section 65 of the Evidence Act as to in what manner the tenant was concerned with the purported agreement or that in what circumstances, despite being beneficial to the said JKJ and Sons is -- as evident on its reading -- was the agreement, dated 28.06.2006 in possession of the landlord who had denied it. As recorded by the trial court, aside of the casual nature of the cryptic application under Section 65 of the Evidence Act by the tenant, it was belated and filed in 2016 in an eviction petition of 2006 at the stage of the tenant's cross-examination -- after a hiatus of 10 years in an eviction petition required by the Rajasthan Rent Control Act, 2001 particularly Section 15(5) thereof-- albeit directory -- to be concluded within 240 days of service of the petition on the opposite party. 11. I am of the considered view that the application under Section 65 of the Evidence Act filed by the tenant to lead secondary evidence qua the photocopy of the purported agreement dated 28.06.2006 wad devoid of foundational facts. It was casual and hopelessly without merit. Casually allowing leading of secondary evidence, as was sought by the tenant, is a recipe for disaster in the administration of justice leading to prolonging of trial, by all manner of evidences of suspicious pedigree being brought on record resulting in inordinate delays, which are already legion and matter of adverse public comment. I am of the considered view that nothing perverse or patently illegal can be found in the impugned order dated 25.02.2017 passed by the trial court.
12. Dismissed. A copy of this order be placed in each connected petition.
(Downloaded on 25/12/2022 at 09:24:24 PM)
(12 of 31) [CW-10009/2019] 10.4 In U. Sree Vs. U. Srinivas 2013 (1) WLC (SC) Civil 106, the Hon'ble Apex Court observed as under:
"17. Recently, in H. Siddiqui (Dead) by L.Rs. v. A. Ramalingam MANU/SC/0174/2011 : (2011) 4 SCC 240, while dealing with Section 65 of the Evidence Act, this Court opined though the said provision permits the parties to adduce secondary evidence, yet such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It has been further held that mere admission of a document in evidence does not amount to its proof. Therefore, it is the obligation of the Court to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.
18. In the case at hand, the learned Family Judge has really not discussed anything relating to foundational evidence. The High Court has only mentioned that when the letter was summoned and there was a denial, the secondary evidence is admissible. In our considered opinion, such a view is neither legally sound nor in consonance with the pronouncements of this Court and, accordingly, we have no hesitation in dislodging the finding on that score."
10.5 In H. Siddiqui (dead) by LR's Vs. A. Ramalingam 2011 DNJ (SC) 297, the Hon'ble Apex Court observed as under:
"10. Provisions of Section 65 of the Act 1872 provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of (Downloaded on 25/12/2022 at 09:24:24 PM) (13 of 31) [CW-10009/2019] limitations. In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. . . . ."
10.6 In Kunana Ram Vs. Civil Judge (Sr. Division), Parbatsar (2008) 2 DNJ 1057, a Coordinate Bench of this Hon'ble Court observed as under:
". . . . .Even when the question of registration is left aside, no permission to lead secondary evidence in relation to the document in question could have been given in this case for the crucial reason that the document was admittedly an unstamped one.
A document that is chargeable with stamp duty and does not bear such stamp duty, the deficiency of stamp duty cannot be filled up on the copy of the document and, therefore, permission to lead secondary evidence cannot be granted. The Hon'ble Supreme Court in the case of State of Bihar v. Karam Chand Thapar & Brothers Ltd. MANU/SC/0002/1961 :
[1962]1SCR827 pointed out that the law remained well- settled that a copy of instrument cannot be validated while quoting with approval the principle stated in the case of Rajah of Bobbili v. Inuganti China Sitaramasami Garu 26 Ind App 262 that:
"The provisions of this section (Section 35) which allow a document to be admitted in evidence on payment of penalty, have no application when the original document, which was unstamped or was insufficiently stamped, has not been (Downloaded on 25/12/2022 at 09:24:24 PM) (14 of 31) [CW-10009/2019] produced; and, accordingly, secondary evidence of its contents cannot be given...."
Further in the case of Hon'ble Supreme Court has been pleased to expound the relevant principles in no uncertain terms thus:
"13. The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duty stamped. The second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped or insufficiently stamped, would be tantamount to the document being acted upon by the person having by law or authority to receive evidence. Proviso (a) is only applicable when the original instrument is actually before the Court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document. Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by Section 63 of the Indian Evidence Act would not fulfil the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself. Section 35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document which is an instrument for the purpose of Section 35 . . . ..
14. If Section 35 only deals with original instruments and not copies Section 36 cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit. The words "an instrument" in Section 36 must have the same meaning as that in Section 35.. . . .
15. . . . . .The document being admittedly the one chargeable with stamp duty and being an unstamped one, its secondary evidence could not have been permitted. Though the learned Trial Court only indicated that such aspect gives rise to a question on admissibility of the document but this Court is clearly of opinion that on this count alone, the prayer to lead secondary evidence was required to be refused even if other aspects of the matter were not gone into."(Downloaded on 25/12/2022 at 09:24:24 PM)
(15 of 31) [CW-10009/2019] 10.7 In Electro Mechanical Engineering Corporation (M/ s.) & Anr. Vs. Addl. District Judge (Fast Track) No. 1, Alwar & Anr. 2012 (3) DNJ (Raj.) 1381, it was held thus:
"10. It cannot be gainsaid that the contents of the documents could be proved either by primary or by secondary evidence, however the documents must be proved by primary evidence except in the cases mentioned in section 65 of the said Act. what is secondary evidence has been incorporated in Section 63 of the said Act. It is also settled proposition of law that only the best evidence should be produced by the parties, and that the secondary evidence could be given in absence of that best evidence which law requires to be given first, when a proper explanation of its absence is given by the party seeking permission to lead secondary evidence. From the bear reading of provisions of the said Act pertaining to the secondary evidence, it clearly transpires that before permitting the party to produce secondary evidence, it is necessary for the party to prove the existence and execution of the original documents. The conditions laid down in Section 65 of the said Act have to be complied with before the secondary evidence could be permitted. In this regard, a very pertinent observations made by the Apex Court in case of J. Yashoda v. K. shobha Rani (supra) are reproduced as under:-
"7. secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents.
8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in section 63 is exhaustive as the section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence.
9. The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, (Downloaded on 25/12/2022 at 09:24:24 PM) (16 of 31) [CW-10009/2019] decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. under section 64, documents are to be proved by primary evidence. section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section."
11. In a recent decision in case of H. Siddiqui v. A. Ramalingam, 2011 (2) Civil court cases 405 (S.C.) : 2011 (1) Apex Court judgments 599 (S.C.) : AIR 2011 SC 1492 , the Apex Court observed as under :-
"10. Provisions of Section 65 of the Act 1872 provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (vide: The Roman Catholilc Mission & Anr. v. The State of (Downloaded on 25/12/2022 at 09:24:24 PM) (17 of 31) [CW-10009/2019] Madras & Anr., : AIR 1966 SC 1457 ; State of Rajasthan & ors. v. Khemraj & ors., AIR 2000 SC 1759 ; Life Insurance Corporation of India & Anr. v. Ram Pal Singh Bisen, (2010) 4 SCC 491 : (2010 AIR scw 1900); andM. Chandra v. M. Thangamuthu & Anr., (2010) 9 SCC 712 ):(AIR 2011 SC 146 )."
13. The respondent has also not examined any witness nor filed the requisite affidavit of the person, who was well conversant with the facts of the case at the time of the institution of the suit, to prove that the said documents were in fact in existence and that they have been lost or destroyed, as alleged. under the circumstances, in absence of a proper explanation for not leading the best evidence and in absence of any evidence regarding the existence of the original documents, and regarding loss of such documents, permission to lead secondary evidence in respect of said documents cannot be granted. As such, because the very existence of the original documents has not been proved by the respondent-plaintiff, the copies of documents in question also could not be said to be the copies made from the originals, as contemplated under section 63(3) of the said Act and, therefore, the secondary evidence with regard to the said copies of documents also could not be permitted to be given under Section 65 of the said Act."
10.8 Gopal Lal Vs. Shri Nath Ram & Ors. 2016 (1) WLC (Raj.) UC 723, wherein a Coordinate Bench of this Hon'ble Court observed as under:
"4. Section 65 of Act, enumerates the exceptional circumstances wherein, the secondary evidence relating the documents is admissible. As per clause (c) of Section 65, the secondary evidence of a document can be permitted when the original has been destroyed or lost or when party offering evidence of the contents cannot, for any other reason not arising from his default or neglect produce it in reasonable time.
5. Indisputably, the suit has been filed by the petitioner claiming the right on the strength of agreement to sell dated 20.7.09 but, neither the original nor the photo stat copy (Downloaded on 25/12/2022 at 09:24:24 PM) (18 of 31) [CW-10009/2019] thereof was placed on record by the petitioner before the Court at the time of presentation of the plaint as mandated by Order VII Rule 14 (1) CPC. That apart, in the application preferred, it is nowhere stated that the photo stat copy sought to be produced on record, was made by its original and the same is true reproduction thereof. It is settled law that before admitting the photo stat copy of the document as secondary evidence, the existence of the original must be proved. Further, in case where there was no proof of accuracy of the photo stat copy or of its having been compared with or being reproduction of original, it cannot be considered as secondary evidence. In this view of the matter, the court below has committed no error in observing that the document sought to be produced cannot be considered to be a secondary evidence.
6.Further, a perusal of the photocopy of the agreement to sell sought to be produced on record, shows that its original, if any, was not sufficiently stamped. As per the mandate of provision of Section 39 of Rajasthan Stamp Act, 1998, no instrument chargeable with the duty under the said Act, is permissible to be admitted in evidence for any purpose by any person having by law or consent of the parties authority to receive the evidence unless such instrument is duly stamped. Thus, when the original agreement to sell if produced, was not admissible in evidence, the question of photostat copy thereof being admitted in evidence, does not arise."
10.9 In M/S Kota Fine Wood Works Vs. Nagar Vikas Nyas S.B. C.W.P. No. 1032 of 2021 (decided by this Hon'ble Court at Jaipur Bench on 12.02.2021), it was observed as under
"The documents, photo copies of which are sought to be produced by way of secondary evidence are the allotment letter, the office order, advertisement, the letter and other documents. Undisputedly, the allotment order dated 24.07.1982 was issued to the petitioner and must be in its power and possession. . . ."(Downloaded on 25/12/2022 at 09:24:24 PM)
(19 of 31) [CW-10009/2019] 10.10 In Kanhaiyalal Vs. Addl. District Judge No.1,
Sriganganagar & Anr., (2013) 1 DNJ 309, it was observed as under:
"3. . . . Once the objection about admissibility of the document on account of it being insufficiently stamped is raised during the examination of a witness or otherwise, it is imperative for the Court to decide whether the document is sufficiently stamped or not and thereafter take proceedings in accordance with its decision on the said application."
11. Learned counsel for the petitioner also drew the attention of this Court to the legal objection, which the petitioner filed, at Annexure - 6, to the application so preferred by the respondent under Section 65 of the Act of 1872, in which, in clear and unambiguous terms, it was stated that the photocopy of the supposedly executed rent note in question was executed for rent payable at Rs. 1,500/- per month, and that the stamp duty paid on the execution of the document was only Rs. 25/- whereas under Article 33(a) (1) read with Article 14 of the Act of 1952, the calculation of stamp duty payable made for a document, executed during the application of the Act of 1952 and before the 1998 Act came into force, for the annual rent of Rs. 16,500/- (calculated at Rs. 1,500/- per month for a period of 11 months) would in fact be Rs. 825/- and therefore, the rent note in question was originally executed on payment of inadequate stamp duty, and therefore if the primary document itself would not be admissible in evidence on the ground of insufficient stamping, then the photocopy of the document also cannot be allowed as secondary evidence to be brought on record before the learned Trial Court. (Downloaded on 25/12/2022 at 09:24:24 PM)
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12. Learned counsel for the petitioner further submits that the learned Rent Tribunal, vide the impugned order dated 31.05.2019, incorrectly found that the rent note would, prima facie, have been executed properly and therefore, allowed the aforesaid application qua allowing the admissibility of the document by way of secondary evidence as filed by the respondent, despite the grounds raised in the legal objection by the petitioner before the learned Trial Court. And that, aggrieved by the said order, the petitioner has approached this Court in its writ jurisdiction.
13. On the other hand, learned counsel for the respondent submits that the rent agreement, dated 26.04.1994, was executed between the two parties concerned under free will. And that on a bare perusal of the rent agreement, it is evident that the same is a true copy of the original agreement with a proper seal and attestation of the Notary Public and is therefore a valid document.
14. Learned counsel for the respondent further submits that the petitioner is the person who is in possession of the original rent agreement, who is unwilling to produce the same before the lower Court with the apprehension that the production of the same may result in adverse inferences being drawn against him, and that the respondent only having a photocopy of the original, sought to bring the same on record, through the application under Order 11 Rules 12 and 14 CPC, 1908 read with Section 65 of the Indian Evidence Act, before the concerned Court.
15. Learned counsel for the respondent further submits that the petitioner himself admits that the father in law of the petitioner allegedly purchased the property through an agreement subsequent to the execution of the aforementioned rental (Downloaded on 25/12/2022 at 09:24:24 PM) (21 of 31) [CW-10009/2019] agreement, and therefore admits the existence of the rental agreement.
16. Learned counsel for the respondent further submits that the respondent's aforesaid application was allowed by the learned Trial Court while rightly appreciating the facts and circumstances of the case and finding the document in question to be falling within the ambit of secondary evidence.
17. Learned counsel for the respondent further submits that the respondent filed the eviction petition against the petitioner in the year 2013. And that in the reply, dated 25.02.2014, at Para. 7, filed by the present petitioner before the learned Rent Tribunal, the petitioner had categorically stated that agreement to sale was executed on 27.04.1994, just a day after, i.e. 26.04.1994 when the rent note was executed between the two parties in question. And that, despite admitting the fact of existence of rent agreement in the year 1994 itself, the petitioner has preferred a suit for specific performance in the year 2014, after an inordinate delay of about 20 years and that too only as a counter blast to the respondent's petition for eviction, which was filed in the year 2013.
18. Learned counsel for the respondent further submits that the impugned order, dated 31.05.2019, at Annexure-9, wherein the learned Trial Court had rightly recorded a finding that the rent agreement in question was executed in the year 1994 for a period of 11 months, which was only chargeable with a stamp duty of Rs. 10 and that Rs. 25 was in fact paid towards the stamp duty and that it was adequately stamped. And that, the petitioner's contention that the secondary evidence should not be admissible (Downloaded on 25/12/2022 at 09:24:24 PM) (22 of 31) [CW-10009/2019] and is illegal was not accepted by the learned Trial Court with the finding that it was a ploy to delay the proceedings. 18.1 Learned counsel for the respondent further submits that the same tactic is being employed by the petitioner before this Court to delay the proceedings before the learned Trial Court and to continue to illegally enjoy the possession of the rented premises in question.
18.2 Learned counsel for the respondent further submits that the learned Trial Court rightly drew the inference of existence of the rental agreement in question and that it may have been adequately executed, from the reply filed by the petitioner before it, as aforementioned.
18.3 Learned counsel for the respondent further submits that the learned Trial Court held that the petitioner was unsuccessful in proving the contentions that the rent agreement in question was executed on insufficient stamp, as no provision of law to that effect was cited to show that the stamp duty would have to be paid at an amount over and above Rs. 25.
18.4 Learned counsel for the respondent therefore submits, that on these just and fair grounds, the application of the respondents was allowed by the learned trial court and the photocopy of the rent agreement in question was admitted onto the record as secondary evidence.
19. Learned counsel for the respondent, in support of his submissions, placed reliance on the following judgments:-
19.1 Sheela Tulsyani and Ors. Vs. Hemant Singh Jamwal (decided by this Hon'ble Court at Jaipur Bench on 06.09.2010), wherein it was held thus:(Downloaded on 25/12/2022 at 09:24:24 PM)
(23 of 31) [CW-10009/2019] "6. ... But, according to Section 40 of the Rajasthan Stamp Act, once a document has been exhibited during a trial, subsequently, the objection about its admissibility cannot be raised. Therefore, in case the appellant had any objection with regard to admissibility of the agreement to sell, he should have raised the said objection during the course of trial itself. Once the document has been marked as an exhibit, it is too late in the day for the appellant, to raise any objection about its admissibility. Now, the appellant is hit by the bar contained in Section 40 of the Rajasthan Stamp Act.
7.. . . . . . A bare perusal of Section 49, clearly reveals that it contains an exception by way of proviso whereby unregistered document can be received in evidence in a suit for specific performance. It could also be received as evidence for collateral purpose.
10. Furthermore, under Section 20 of the Act, a discretion has been bestowed upon the learned trial Judge to exercise or not to exercise its discretion. The learned Counsel for the appellant has not been able to make out any case to prove that non-exercise of the discretion under Section 20 of the Act was an arbitrary omission on part of the court. Therefore, the contention of the learned Counsel that the learned trial Judge should have invoked its discretionary power is unacceptable.
11. In case Section 14 of the Act were given liberal interpretation that in every case of breach of contract party should be compensated monetarily, instead of directing the defaulting party to specifically perform the contract, such an interpretation would make the entire Specific Relief Act redundant. Therefore, the learned Counsel is not justified in claiming that in the light of Section 14(a) of the Act, the suit should have been dismissed.
12. A bare perusal of the judgment clearly reveals that learned trial judge has given cogent and legal reasons for decreeing the suit in favour of the respondent. This Court does not find any perversity or illegality in the impugned judgment."
19.2 In Arun Singh Rajput Vs. Sushil Kumar Modi, S.B. C.W.P. No. 560 of 2019 (decided by this Hon'ble Court on 26.02.2019), it was observed thus:(Downloaded on 25/12/2022 at 09:24:24 PM)
(24 of 31) [CW-10009/2019] "8. ... Thus, the rent note exhibited in evidence, being not of tenancy from year to year or for any term exceeding one year or reserving a yearly rent, was not required to be compulsorily registered. Regarding insufficiency of the stamp, suffice it to say that it was a curable defect inasmuch as, had there been an objection, the petitioner could have been permitted to cover the insufficiency of the stamp, if any.
9. In Arulmigu Viswesaraswami's case (supra), the Hon'ble Supreme Court has categorically observed that the crucial test is whether an objection, if taken at the appropriate point of time, would have enable the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The court observed that in such cases, the objection raised shall be treated to be towards the mode of proof alleging the same to be irregular and insufficient and if the objection is not taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that should not have been laid in evidence or that mode adopted for proving the document is irregular, cannot be allowed to be raised subsequent to the marking of the document as an exhibit.
10. In this view of the matter, the objection raised regarding the insufficiency of the stamp, if any, being not an objection related to the admissibility of the document as such, the Rent Tribunal has committed no error in rejecting the application preferred by the petitioner."
19.3 In Smt. Geeta Devi and Ors. Vs. Bhagwati Lal Ladda and Ors. S.B. C.W.P. No. 12438 of 2016. (decided by this Hon'ble Court on 05.07.2017), it was observed thus:
"If the petitioner does not have the original of the family settlement dated 11.10.2005, he may, however, furnish a photocopy thereof before the learned trial Court for the purpose of determination of the Stamp Duty. The learned trial Court would impound and transmit the same to the Collector (Stamps) for adjudication of the proper stamp duty thereupon. It is clarified that mere payment of the stamp duty on the photocopy of the document in question shall not by itself render the document, family settlement dated 11.10.2005, admissible in evidence and the same shall be subject to the requirement of (Downloaded on 25/12/2022 at 09:24:24 PM) (25 of 31) [CW-10009/2019] law, including, the provisions as contained under Sections 65 and 66 of the Evidence Act."
19.4 In Mahaveer Prasad Vs. Sayra Devi S.B. C.W.P. 4918 of 2015 (decided by this Hon'ble Court on 17.02.2016) :
"Regarding the objection about non-payment of stamp duty, the trial court came to the conclusion that the document was covered under Article 35(c) under Schedule-II of the Rajasthan Stamp Law (Adaptation) Act, 1952 and stamp duty was payable accordingly and calculated the stamp duty at Rs.1226/- and found that as no duty was paid and though the court has power to treat the document as duly stamped on payment of deficient stamp duty alongwith ten times penalty, however, relying on the judgment of the Hon'ble Supreme Court in Jupudi Kesava Rao v.Pulavarthi Venkata Subharao & Ors. : AIR 1971 SC 1070 held that stamp duty cannot be recovered on a photocopy of the document and on further coming to the conclusion that as an insufficiently stamped document cannot be used for any purpose the document was not admissible in evidence and consequently while holding that the registration of the subject document was not compulsory, as the document was insufficiently stamp held the same as inadmissible.
Learned counsel, fairly conceded that the trial court was in error in coming to the conclusion that the stamp duty cannot be recovered on a copy of the original document as the same was in ignorance of proviso (e) to Section 39 of the Stamp Act, which provides that on payment of stamp duty or a deficient portion of the stamp duty and penalty, a copy of any instrument is admissible.
Learned counsel for the defendant- Mahaveer Prasad submitted that as the counsel for the plaintiff has conceded on the aspect of payment of stamp duty / portion of deficient stamp duty in view of proviso (e) to Section 39 of the Stamp Act, the order passed by the trial court cannot be sustained to the extent it has rejected the prayer of the petitioner for payment of deficient stamp duty only on account of the fact that the document in question was a copy of the instrument."(Downloaded on 25/12/2022 at 09:24:24 PM)
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20. Heard learned counsel for both parties and, perused the record of the case and the judgments cited at the bar.
21. This Court observes that the issues raised before this Court are twofold, firstly whether the rent agreement in question is a forgery therefore rendering the secondary evidence so admitted by the learned Trial Court through the aforementioned application made by the respondents was inadmissible in evidence, by virtue of the fact that the primary document itself is inadmissible. And, secondly, whether the rent agreement in question, bearing the date 26.04.1994, was duly and adequately stamped and properly executed, with regard to the prevailing statute at the time.
22. With regard to the first issue, this Court is satisfied that the rent agreement in question would have existed, as is also the inference and finding of the learned Trial Court below, which derived strength from the submissions made by the petitioner through the reply filed by the petitioner before the learned Trial Court.
22.1 The relevant portion of the reply filed by the petitioner in the learned Trial Court below, reads as follows:
"fnukad 26-04-1994 dks fu"ikfnr fd;k x;k fdjk;kukek fodz; vuqca/k fnukad 27-04-1994 vFkkZr dfFkr fdjk;sukesa ds nqljs fnu gh ifjlj ds cspku djus ds dkj.k ls izfroknhx.k ds iwoZtksa dk vkf/kiR; dk Lo:i fdjk;snkj ls cny dzsrk ds :i esa ifjofrZr gks tkus ls fdjk;snkjh mlh frfFk dks lekIr gks x;h ,oa fnukad 27-04-1994 ls izfroknhx.k dk oknh ls fdjk;snkj&edku ekfyd dk fj'rk ifjofrZr gksdj dzsrk&fodzsrk dk fj'rk gks x;k ,oa dfFkr fdjk;k fpVBh izHkko 'kwU; gks x;hA"
22.2 The relevant portion of the impugned order passed by the learned Trial Court below, reads as follows: (Downloaded on 25/12/2022 at 09:24:24 PM)
(27 of 31) [CW-10009/2019] "tgka LVkEi M;wVh I;kZIr ugha gksus ds rF; dk iz'u gS rks foi{kh ,slk dksbZ fof/kd izko/kku U;k;ky; ds le{k is'k djus esa vlQy jgs gS ftlls ;g nf'kZr gksrk gks fd o"kZ 1994 esa fdjk;sukesa dk fu"iknu 25 :i;s ls vf/kd ewY; ds LVkWEi ij djk;k tkuk vkKkid gksA mDr fdjk;k fpVBh dk fu"iknu gqvk vFkok ugha] blds [k.Mu esa foi{kh dks lk{; is'k djus dk iw.kZ volj izkIr gSA fdjk;k fpVBh ds fu"izHkkoh gksus dk rF; lk{; dk eksgrkt gSA fdUrq bl izdze ij fdjk;k fpVBh dks lk{; esa iznf'kZr djk;s tkus dh vuqefr gh iznku ugha djuk U;k;ksfpr izrhr ugha gksrk gSA"
23. Therefore, the only issue that requires this Court's consideration is the second issue as to whether the rent agreement in question was duly and adequately stamped and executed, as under the prevailing statute of the time.
24. This Court observes, before delving into the second issue, that the impugned order, dated 31.05.2019, of the learned Trial Court below does not suffer from any infirmity, and arrives at this conclusion from the following observations:
24.1 Firstly, as already observed, in the impugned order, the Trial Court drew the inference, regarding the existence of the rent agreement in question, on the logical grounds.
24.2 Secondly, the petitioner did not cite any law before the Court to the effect that any evidence to substantiate the claim that the rent agreement in question was inadequately stamped or executed.
25. This Court notes that the rent agreement in question, therefore, may safely be presumed to have existed which renders the photocopy of the original rent agreement in question admissible in evidence before the learned Trial Court as secondary evidence under Section 65 (b) the Indian Evidence Act, 1872.(Downloaded on 25/12/2022 at 09:24:24 PM)
(28 of 31) [CW-10009/2019] Relevant Sections of the Act of 1872, for the present adjudication, reads as follows:
"63. Secondary evidence. -- Secondary evidence means and includes --
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies; (3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.
65. Cases in which secondary evidence relating to documents may be given.--
Secondary evidence may be given of the existence, condition or contents of a document in the following cases: --
(a) when the original is shown or appears to be in the possession or power --
of the person against whom the document is sought to be proved, of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(Downloaded on 25/12/2022 at 09:24:24 PM)
(29 of 31) [CW-10009/2019]
(e) when the original is a public document within the meaning of section 74;
26. This Court further observes that the sole issue to be considered is whether the rent agreement in question was properly stamped and executed, and whether the stamp duty, of Rs. 25, paid by the respondent was sufficient as per the prevailing relevant statute of the time.
27. This Court takes note the judgments cited at the Bar by the learned counsel for the petitioner, and makes the following observations regarding the same:
27.1 The requirement laid down in Pooram Singh (supra), Hukmi Chand (supra), Electro Mechanical Engineering Corporation (supra) and Gopal Lal (supra) has been fulfilled in the present case, as the existence of the document in question i.e. the rent agreement in question has been proven, as already stated above.
27.2 In Bhanwar Lal (supra), it was an admitted and ascertained fact that the document in question was inadequately stamped, however in the present petition, that is not the case.
27.3 U. Sree (supra) does not apply to the facts and circumstances of the present case as the learned Trial Court below in admitting the rent agreement in question as secondary evidence did so on sound reasoning and passed a speaking order to that effect.
27.4 H. Siddique (supra) and Electro Mechanical Engineering Corporation (supra) speak to ensuring that the conditions prescribed under Section 65 must be fulfilled while (Downloaded on 25/12/2022 at 09:24:24 PM) (30 of 31) [CW-10009/2019] considering whether a document may be adduced as secondary evidence, and such is the case herein, whereby in accordance with Section 65 (b), the document i.e. the rent deed in question had been admitted onto the record before the learned Trial Court.
27.5 In Kunana Ram (supra) the document in question was an unstamped document, and such is not the case in the present petition.
27.6 The decision rendered in Kota Fine Wood Works (supra) does not apply to the facts of the present case.
28. This Court also takes note of the judgments cited at the Bar by the learned counsel for the respondents, and makes the following observations regarding the same:
28.1 The decision rendered in Sheela Tulsyani (supra) does not apply to the facts and circumstances of this case, as the petitioner in the present case raised a legal objection as to the admissibility of the rent agreement in question, and that the same was duly considered by the learned Trial Court below before passing the impugned order.
28.2 In Arun Singh Rajput (supra), a Coordinate Bench of this Hon'ble Court regarding a document executed in the year 1973 held that the defect of insufficient stamping can be cured by way of Section 39 of the Rajasthan Stamp Act of 1998. 28.3 In Smt. Geeta Devi (supra), a Coordinate Bench of this Hon'ble Court held that a photocopy of a family settlement document may be impounded by the Learned Trial Court and transmit the same to the Collector (Stamps) for the adjudication regarding proper stamp duty payable on the said document. (Downloaded on 25/12/2022 at 09:24:24 PM)
(31 of 31) [CW-10009/2019] 28.4 In Mahaveer Prasad (supra), a Coordinate Bench of this Hon'ble Court found that the learned Trial Court erred in holding that the defect of inadequate stamp duty paid on a document executed in the year 1973, cannot be cured, whereas the Court adjudged that the defect was curable, in light of Section 39 (e) of the Act of 1998.
29. This Court observes that the prevailing law regulating Stamps in the State of Rajasthan is the Rajasthan Stamp Act of 1998, which came into force with effect from 27.05.2004, while the rent agreement in question, bore the date 26.04.1994, would therefore come under the purview of the Rajasthan Stamp (Adaptation) Act, 1952.
30. This Court, in light of the above made observations, keeping in mind the facts and circumstances of the present case and drawing strength from the orders/judgments cited at the Bar, does not find that the impugned order suffers from any infirmity.
31. This Court, however, grants liberty to the petitioner, to agitate his claims regarding inadequacy of stamp duty on the rent deed in question before the learned Trial Court itself, strictly in accordance with law.
32. With the aforesaid observations, the present petition stands disposed of. All pending applications also stand disposed of accordingly.
(DR.PUSHPENDRA SINGH BHATI),J.
104-Skant/-
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