JUDGMENT

1. None appears for the respondents despite service.

2. This writ petition has been filed under Article 227 of the Constitution of India assailing the legality and validity of the order dated 06.03.2021 passed by learned Additional District Judge No.2, Kishangarh Bass, Alwar in Civil Suit No.34/34/2018 whereby, an application filed by the respondent No.1/plaintiff under Section 65, Evidence Act, 1872 (for brevity, "the Act of 1872") and Section 35, Stamp Act, 1899 (for brevity, "the Act of 1899") seeking to lead secondary evidence in respect of the photocopy of an unregistered and insufficiently stamped agreement to sell, has been allowed.

3. The facts in brief are that the respondent No.1/plaintiff filed a suit for specific performance of the agreement to sell dated 06.05.2022 and permanent injunction. During its pendency, he moved an application under Section 65 of the Act of 1872 and Section 35 of the Act of 1899 seeking permission of the Court to lead secondary evidence qua the sale agreement dated 06.05.2022. The application has been allowed by the learned trial Court vide its order dated 06.03.2021, the subject matter of challenge.

4. Assailing the order, learned counsel for the petitioner/defendant No.1 submits that a photocopy of an insufficiently stamped document is inadmissible in secondary evidence. He submits that a photocopy of such document cannot be validated under Section 35 of the Act of 1899. Learned counsel, in support of his submissions, relies upon a judgement of Hon'ble Apex Court of India in case of Hariom Agrawal v. Prakash Chand Malviya; Civil Appeal No.4696/2007. He, therefore, prays that the writ petition be allowed, the order dated 06.03.2021 be quashed and set aside and the application filed by the respondent No.1/plaintiff be dismissed.

5. Heard. Considered.

6. Vide order impugned, a photocopy of the insufficiently stamped and unregistered agreement to sell has been permitted in secondary evidence. A three-Judges Bench of the Hon'ble Apex Court of India has, in case of Hariom Agrawal (supra), held as under:-

"7. The instrument as per definition under Section 2(14) has a reference to the original instrument. In State of Bihar v. M/s. Karam Chand Thapar & Brothers Ltd., AIR 1962 SC 110, this Court in paragraph 6 of the judgment held as under :-

"6. It is next contended that as the copy of the award in court was unstamped, no decree could have been passed thereon. The facts are that the arbitrator sent to each of the parties a copy of the award signed by him and a third copy also signed by him was sent to the court. The copy of the award which was sent to the Government would appear to have been insufficiently stamped. If that had been produced in court, it could have been validated on payment of the deficiency and penalty under Section 35 of the Indian Stamp Act, 1899.

But the Government has failed to produce the same. The copy of the award which was sent to the respondents is said to have been seized by the police along with other papers and is not now available. When the third copy was received in court, the respondents paid the requisite stamp duty under Section 35 of the Stamp Act and had it validated. Now the contention of the appellant is that the instrument actually before the court is, what it purports to be, "a certified copy", and that under Section 35 of the Stamp Act there can be validation only of the original, when it is unstamped or insufficiently stamped, that the document in court which is a copy cannot be validated and "acted upon" and that in consequence no decree could be passed thereon. The law is no doubt well- settled that the copy of an instrument cannot be validated. That was held in Rajah of Bobbili v. Inuganti China Sitaramasami Garu, 26 Ind App 262, where it was observed :

"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 insufficie