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2011 Supreme(Raj) 617
[Citation : 2012(2) RLW 1422 (Raj.)]
(Rajasthan High Court)
Jaipur Bench
Kamlesh Chanwala Vs. Khema @ Khemchand & Ors. (Asopa, J.)
HON'BLE PREM SHANKER ASOPA, J.
Kamlesh Chanwala
Versus
Khema @ Khemchand & Ors.
S.B. Civil Writ Petition No. 7506 of 2011, decided on 05.07.2011
Manoj Bhardwaj, for Petitioner
Headnote:C.P.C., Order 11 Rule 12; Evidence Act, 1872, Secs. 65 and 66; Rajasthan Stamps Act, 1988, Sec. 39(e) — Unstamped and unregistered documents — Admissibility in evidence — Trial Court rejected the application for calling the notarized agreement and production of secondary evidence on the ground that respondent-defendants have denied possession of the original document and the original document is on simple paper on which no stamp is affixed nor is registered as unstamped agreement of sale is not admissible in evidence — Held — Defendant respondents has denied possession of the document and further plaintiff-petitioner has not been able to make out existence of the document, therefore, secondary evidence was rightly refused — Proviso (e) to Sec. 39 is to be harmoniously considered with main Sec. 39 — Proviso cannot be allowed to eat the main section. (Paras 7, 8)
Writ petition dismissed.
fl-iz-la-] vkns'k 11 fu;e 12( lk{; vf/kfu;e] 1872] /kkjk 65 o 66( jktLFkku eqnzkad vf/kfu;e] 1988] /kkjk 39¼e½ & veqnzkafdr ,oa viaftd`r nLrkost & lk{; esa xzkg~;rk & uksVjh d`r djkj eaxokus ,oa xkS.k lk{; is'k djus gsrq vkosnu fopkj.k U;k;ky; us bl vk/kkj ij [kkfjt fd;k fd izR;FkhZ izfroknhx.k us ewy nLrkost vius dCts esa gksus ls badkj fd;k rFkk ewy nLrkost ,d lkns dkxt ij gS ftl ij dksbZ eqnzkadu vafdr ugha gS vkSj u gh iaftd`r gS D;ksafd veqnzkafdr foØ; djkj lk{; esa xzkg~; ugha gS & vfHkfu/kkZfjr & izfroknh-izR;FkhZx.k us mDr nLrkost vius dCts esa gksus ls badkj fd;k rFkk vkxs oknh & izkFkhZ ml nLrkost dh fo|ekurk dk ekeyk cukus esa lQy ugha gq, vr% xkS.k lk{; ls badkj djuk lgh Fkk & /kkjk 39 ds ijUrqd ¼e½ dk eq[; /kkjk 39 ds lkFk lkSgknZ iw.kZ <ax fopkj djuk gksrk gS & ijUrqd dks eq[; /kkjk dks fuxyus dh vuqefr ugha nh tk ldrhA
;kfpdk [kkfjt dhA ¼in la[;k 7] 8½
2. By this writ petition, the petitioner-plaintiff has challenged the order dated 11.2.2011 passed by the Distt. Judge, Tonk in Civil Suit No. 46/2006 by which the application filed by the petitioner under Order 11 Rule 12 CPC and Sec. 65 and 66 Evidence Act, has been rejected.
3. The first part of the application relating to Order 11 Rule 12 CPC of calling the notarized agreement dated 6.4.2004 was rejected on the ground that the respondent-defendants have denied possession of the original document.
4. The second part of the application for production of secondary evidence u/S. 65 and 66 of the Evidence Act with regard to the said notarized agreement was rejected on the ground that the original document in question, of which a photo stat copy has been produced, is on simple paper in which no stamp is affixed nor the same is registered and further, unstamped agreement of sale is not admissible in evidence, therefore, the agreement is not admissible in evidence. While rejecting the second part of the application, the trial Court has placed reliance on the judgment of this Court in Shankar Lal & Ors. vs. The Civil Judge (Jr. Division), Shahpura & Ors. (2006(3) WLC 421 = RLW 2006(3) Raj. 2049) which has been referred by the trial Court without referring the page number as 2006(3) RLW and Champa Lal vs. Panna Lal (1951 RLW 258).
5. Submission of counsel for the petitioner is that as per proviso (e) to Sec. 39 of the Act, copy of any instrument or of an oral account of the contents of any instrument, is admissible in evidence if the stamp duty or a deficient portion of the stamp duty and penalty as specified in clause (a) is paid. Counsel further submits that copy means photo stat copy, typed copy or any other copy, therefore, the said document could have been impounded for the purpose of payment of proper stamp duty and was further admissible in evidence. Although the said point has not been raised before the trial Court but the counsel submits that since it is a legal question, he may be allowed to raise this point before this Court.
6. I have gone through record of the writ petition and further considered the aforesaid submissions.
7. Before proceeding further, it is relevant to quote the provisions of Sec. 39 of the Rajasthan Stamp Act, 1988 (in short `the Act of 1988') as also Paras 23, 24, 28 of Shankar Lal and others V. The Civil Judge and others 2006 (3) WLC 421. The same are as under:
Sec. 39
"39. Instruments not duly stamped inadmissible in evidence, etc.- No instrument chargeable with duty under this Act 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:
Provided that,-
(a) any such instrument shall, subject to all just exceptions, be admitted in evidence on payment of,-
(i) the duty with which the same is chargeable, or in the case of an instrument insufficiently stamped, of the amount required to make up such duty, and
(ii) a penalty of one hundred rupees, or, ten times the amount of deficient portion thereof, whichever is higher.
(b) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
(c) nothing herein contained shall prevent the admission of any instrument as evidence in any proceeding in a criminal court, other than a proceedings under Chapter IX or Part D of Chapter X of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974).
(d) nothing herein contained shall prevent the admission of any instrument in any court when such instrument has been executed by or on behalf of the Government or where it bears the certificate of the Collector as provided by section 36 or any other provision of this Act;
(
