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2011 Supreme(Raj) 615
[Citation : RLW 2012(1) RJ 158 (HC)]
(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 Stamp Act, 1998, Sec. 39 Proviso (e) — Discovery of documents — Defendant denied its possession — Plaintiff has not been able to make out existence of the document — Rejected the application for secondary evidence — Held — The proviso (e) to Section 39 of the Act is to be harmoniously considered with main section 39 of the Stamp Act and Sec. 65 and 66 of the Evidence Act — Proviso cannot be allowed to eat the main section — The Legislature never intended to allow admissibility of unstamped copy of the document — Application rightly rejected — Committed no jurisdictional error — Warrants no interference u/Art. 227 of the Constitution. (Paras 4, 8)
The defendant respondent has denied possession of the document inquestion and further, the plaintiff petitioner has not been able to make out existence of the document, therefore secondary evidence was rightly refused after considering the aforesaid cases. As regards proviso (e) to Sec. 39 of the Act of 1988 the same is to be harmoniously considered with main Sec. 39 of the Act of 1988 and Sections 65 and 66 if the Evidence Act as interpreted by this Court in the aforesaid case of Shanker Lal. Otherwise also law is well settled on the issue that proviso cannot be allowed to eat the main Section. On consideration of the entire Section 39 of the Act of 1988, it is clear that the Legislature never intended to allow admissibility of unstamped copy of the document. The Trial Court acted within its parameters and has not committed any error in the exercise of its jurisdiction nor exceeded its jurisdiction and further acted within its parameters, therefore, no interference is called for under Article 227 of the Constitution of India. (Para 8)
fl-iz-la-] vkns'k 11 fu;e 12( lk{; vf/kfu;e] 1872] /kkjk 65 o 66( jktLFkku eqnzkad vf/kfu;e] 1998] /kkjk 39 ijUrqd ¼e½ & nLrkost dk izdVhdj.k & izfroknh us bldk vius dCts esa gksus ls badkj fd;k & oknh bl nLrkost dh fo|ekurk dk ekeyk cukus esa leFkZ ugha gqvk & xkS.k lk{;kFkZ vkosnu [kkfjt fd;k & vfHkfu/kkZfjr & eqnzkad vf/kfu;e dh /kkjk 39 ds ijUrqd ¼e½ dks bl vf/kfu;e dh eq[; /kkjk 39 o lk{; vf/kfu;e dh /kkjk 65 o 66 ds lkFk ,d Loj esa le>uk gksrk gS & ijUrqd dks eq[; /kkjk fuxyus dh vuqefr ugha nh tk ldrh & nLrkost dh veqnzkafdr izfr dh xzkárk dks vuqefr nsus dk fo/kku e.My dk dHkh vk'k; ugha Fkk & vkosnu fujLr djuk lgh gS & dksbZ vf/kdkfjrk laca/kh =qfV ugha dh & lafo/kku ds vuqPNsn 227 ds rgr dksbZ gLr{ksi okaNuh; ughaA ¼in la[;k 4] 8½
;kfpdk [kkfjt dhA
2. By this writ petition, the petitioner plaintiff has challenged the order dated 11.2.2011 passed by the District Judge, Tonk in Civil Suit No. 46 of 2006 by which the application filed by the petitioner under Order 11 Rule 12 CPC and Sections 65 and 66 Evidence Act, has been rejected.
3. The first appeal 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 under Sections 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 state copy has been produced is no simple paper on 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 which has been referred by the Trial Court without referring the page number as 2006(3) RLW 2049 and Champa Lal vs. Panna Lal, 1951 RLW 258.
5. Submission of counsel for the petitioner is that as per proviso (e) to Section 39 of the Act, copy of any instrument or of an oral cannot 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 state 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 Section 39 of the Rajasthan Stamp Act, 1988 (in short the Act of 1988) as also paras 23, 24, 28 of Shankar Lal & Ors. vs. The Civil Judge & Ors., 2006(3) WLC 421. The same are as under:
Section 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 unauthority 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 be 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 effect 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 Code, 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.
(e) noth
