Point of Law: A document required to be registered is not admissible into evidence under Section 49 of Registration Act.

ORDER :

1. This writ petition has been filed by the petitioner aggrieved against the order dated 10.2.2022 passed by the Senior Civil Judge, Jaitaran (Pali), whereby, the application filed by the petitioner-defendant under Section 65 of the Evidence Act, 1872 (‘the Act’) seeking permission to lead secondary evidence has been rejected.

2. The non-petitioner-plaintiffs filed a suit for cancellation of release deed and for permanent injunction. The petitioner filed written statement and contested the suit. During the pendency of the proceedings, the plaintiffs filed an application seeking direction to the petitioner to produce the original memorandum of family settlement/partition dated 14.5.1978. The petitioner filed reply to the application and denied possession of the document and stated that the plaintiffs’ father - Jhumar Lal had made a photo copy of the original and had given to him. The trial court observing that as a specific indication has been made in the reply that the original document is not in possession of the defendant, the application was disposed of.

3. The petitioner, whereafter, filed an application under Section 65 of the Act with the averments that based on the written partition dated 14.5.1978, written statement has been filed, as the defendant was minor at the relevant time, being ‘Karta Khandaan’ the original of the deed was kept by father of the plaintiffs and other brothers; on account of filing of the suit when the defendant sought original, the same was refused and, therefore, along with the written statement a photocopy of the document was produced. It was further indicated that it has also been determined by the Court that the original is not in possession of the defendant and, therefore, the said photocopy needs to be produced as secondary evidence. Based on the said averments, permission to lead secondary evidence was sought.

4. Reply to the application was filed by the plaintiffs referring to the fact of notice issued for production of original of the partition deed and denial by the defendant and that in absence of the original, the contents of the document cannot be proved. Further plea was raised that as on the original document requisite stamp duty was not paid and was unregistered, for lack of requisite stamp duty and being unregistered the same is inadmissible in evidence and, therefore, the secondary evidence of such document cannot be led. Further averments were made with regard to the contents of the document and it was prayed that the application be dismissed.

5. The trial court after hearing the parties, by its order dated 10.2.2022 came to the conclusion that the defendant though repeatedly relied on the partition deed dated 14.5.1978 in the written statement, it was not disclosed that the original was not with him. It was further concluded that though the allegations were made regarding the document being in possession of father of the plaintiffs and other brothers and their refusal to hand over the original, in terms of the mandatory requirement of issuing notice, no notice was given and, therefore, for lack of notice in terms of Section 66 of the Act, the secondary evidence cannot be led.

6. The court also came to the conclusion that the document regarding which secondary evidence is sought to be led is neither sufficiently stamped nor registered and, therefore, on account of said aspect, the photocopy of such a document cannot be admitted in evidence and consequently, rejected the application.

7. It is submitted by learned counsel for the petitioner that the trial court fell in error in dismissing the application filed by the petitioner by holding that requisite notice under Section 66 of the Act has not been issued, ignoring the provisions of proviso (5) and (6) of Section 66 of the Act.

8. Submissions were made that the plaintiffs themselves made an application seeking production of the original from the defendant-petitioner, which necessarily means that they themselves were not in poss