Prakash Chand Malviya Vs Hariom Agrawal

Mrs. S.R. Waghmare, J.

By this petition, petitioner has challenged order dated 9.8.2005 passed by XIIth Civil Judge, Class II, Bhopal in Regular Civil Suit No. 121-A/2004.

Facts of the case in a nutshell are that the respondent Hariom Agrawal is the tenant of petitioner/owner Shri Prakash Chand Malviya of House No. 1, Lakherapura, Bhopal. The petitioner filed suit for eviction on ground of 12(1)(f) of the M.P. Accommodation Control Act for the need of his elder son. The respondent/tenant resisted the suit stating that he was in possession of the disputed accommodation, as per arrangement that he had paid to the petitioner Rs. 4.75 lacs as advance and duly executed receipt and on condition that six months notice would be given in advance on arising personal need so also the amount of Rs. 4.75 lacs was to be returned. The petitioner owner however had lost the original receipt and filed application for receiving the photo copy of the receipt as secondary evidence.

The Trial Court allowed the application for receiving the secondary evidence by order dated 12.1.2005. Being aggrieved the petitioner filed W.P. No. 890/2005. The Hon''ble High Court remitted the matter by order dated 13.5.2005 directing the Trial Court to decide whether an unstamped original document having been lost, photocopy thereof would be permitted as secondary evidence. The Trial Court directed the impounding of the document. The petitioner filed review which was also dismissed and hence the present petition.

The main thrust of the argument of counsel for the petitioner is that a photo copy of the original document of receipt could not be accepted as secondary evidence especially when the original itself was not duly stamped then no proceedings could be initiated for impounding u/s 33(1) of the Indian Stamp Act, 1899.

Counsel for the petitioner has placed reliance on judgment reported in Som Dutt Builders Limited Vs. State of Uttar Pradesh and Kanpur Development Authority, whereby the Court held that: "when an understamped document was to be impounded and the initiation was made on the basis of a photocopy of the original document, the provisions of Stamp Act required summoning of the original document for ascertaining the liability to pay stamp duty and since the original had never been impounded by the authority nor it was produced before the District Magistrate then the procedure for impounding the document had not been followed and the District Magistrate had no jurisdiction to initiate proceedings.

The counsel submitted that in the present case the original receipt was apparently unstamped and never impounded then the photocopy could not be accepted in evidence leave alone the impounding which would also be contrary to provisions of law. Referring to the Section 33 of the Indian Stamp Act, AIR Manual (V.R. Manohar and W.W. Chitaley) 5th edition. Counsel pointed out that "The Stamp Act contemplates the production of the instrument itself and not its copy nor its prepared replica for purposes of impounding and the power and authority to impound which solely depends on the terms of the statute cannot be invoked apart from them 1961(1) Andhra W.R. 183 (187) (DB), (1957) 2 AW.R. 280 overruled.

The counsel also further relied on AIR 1971 1070 (SC) whereby the Apex Court overruled AIR 1927 Rang 109 and AIR Mad 431 and held that definition of ''instrument'' u/s 2(14) of Stamp Act 1899 does not cover "copy" of document for the purposes of Stamp Act and in view of Section 35 and 36 secondary evidence by way of oral evidence or copy of the document insufficiently stamped is not admissible in a suit even though objection to its admissibility cannot be taken under the Evidence Act. Section 35 and 36 of the Stamp Act are not concerned with copy of document. A party can only be allowed to rely on a document which is an instrument for purposes of these sections. Section 36 does not apply to secondary evidence adduced in proof of the contents of document unstamped or insufficiently stamped.

The counsel has also relied on earlier judgment in the matter of Moolchand and Another Vs. Lachman and Another, to reinforce his submissions that secondary evidence of a document insufficiently stamped and lost was not admissible under the law.

The counsel for petitioner further denied that the photo copy was a ''receipt'' as defined under the Act, what the copy depicted was merely a notarial act of the notary who had put the stamps of Rs. 4/- (four) and seal on the said document, whereas receipt was an instrument specifically defined u/s 2(23) of the Stamp Act. Section 42 of Schedule 1A of the Stamp Act defines notarial act :

42. Notarial act, that is to say any instrument, endorsement, note, attestation, certificate or entry not being a Protest (No.50) made or signed by a notary public in the execution of the duties of his office or by any other person lawfully acting as a notary public requiring Rs. 10/ stamp to be affixed.

Whereas counsel for the respondent has contended that the instrument was a duly stamped receipt but was of improper description, stamps being of two types impressed and express the Act provided for rectification of such deficit payment of stamp fees u/s 37 of the Stamp Act which provides thus :

37. Admission of improperly stamped instruments : The State Government may make rules providing that, where an instrument bears a stamp of sufficient amount but of improper description, it may, on payment of the duty with which the same is chargeable, be certified to be duly stamped, and any instrument so certified shall then be deemed to have been duly stamped as from the date of its execution.

The counsel for the respondent contended that being a receipt what was required under the circumstances was that it should have stamp of Rupee 1 affixed and the document had Rupee 4 revenue stamps affixed then u/s 37 the insufficiency could be rectified.

Considering the sum total of submissions made, I find that the counsel for the respondents Shri Khare has failed to address himself to the question of rectification of stamp fees on a photocopy of the document the original of which is lost and the photocopy is not a certified copy. The Court has to be satisfied regarding the genuineness of a document before its impounding (Satish Kumar Vs. Lal Singh, 1982 JLJ 738) relied on. So also the Apex Court has in the matter of The State of Bihar Vs. Karam Chand Thapar and Brothers Ltd., has held that if an original instrument which is unstamped or insufficiently stamped is lost, a copy of such instrument cannot be validated on payment of stamp duty and penalty.

Then considering the facts on the anvil of the judgments cited by the counsel for the petitioner above and Satish Kumar vs. Lal Singh and State of Bihar Vs. Karamchand Thapar the petition deserves to be allowed and thus the order of Trial Court dated 9.8.2005 passed in C.S. No.121-A-2004 by 12th Civil Judge, Class II, Bhopal is set aside and it is hereby directed that the impugned document which is a photo-copy of the receipt and the original of which is lost and it cannot be verified whether it was duly stamped can neither be impounded nor accepted in secondary evidence.

No order as to costs.