Honble SHARMA, J. – Crucial legal question which arises for consideration in this revision petition is, whether carbon copy of a document is not admissible as primary evidence in view of section 35 and 26 of the Indian Stamps Act, 1899.

(2). This question emerges in the following circumstances :–

(i) Plaintiff-non-petitioner (for short plaintiff) instituted a suit against the defendant petitioner (for short defendant) in the trial court for the recovery of possession of house in question making averments to the effect that the plaintiff entered into an agreement of sale for the said house in favour of the defendants and actual physical possession of the house was given by the plaintiff to the defendants and certain amount was received by him as part performance towards the payment of the sale consideration. But as the defendants have failed to comply with the terms and conditions of the agreement it has become void and the plaintiff is entitled to possess the said house with certain other reliefs relating to mense profits etc.

(ii) In the written statement, the defendants made specific denial of the facts pleaded in plaint and pleaded that they were ready and willing to perform their part. By way of filing counter claim, the defendants prayed for passing a decree for specific performance in their favour.

(iii) The trial court framed the issues and case was posted for recording the evidence of the plaintiff.

(iv) On November 18, 1995 when recording of statement of plaintiff was in process, the counsel for the plaintiff intended to prove a carbon copy of a document dated 25th July, 1987. The counsel for the defendants raised objection that the said document was inadmissible in evidence as it did not bear any stamp duty required to be paid under the Indian Stamps Act. The trial court in the objection being raised deferred the recording of the statement of the plaintiff till the objection is decided and the case was posted for hearing the argu- ments on the question of the admissibility of the said document.

(v) The trial court vide its order dated 12.7.96 observed as under :

``So the intention as appears from the document regarding the nature of document is very very clear. To me when this is a position the document is admissible under section 62 Indian Evidence Act as ori- ginal and primary evidence. The long arguments advanced by the learned counsel for defendants go on merit of the case and for the limited purpose of admissibility cannot be taken into consideration at this stage. Of course when case will be argued finally, then their arguments will be taken into account. Learned counsel for the defen dants himself admits this position. Hence the document is admissible as primary evidence. Now put up for recording the statement of plaintiff on August 13, 1996.

(vi) Against this order of the trial court action for filing the revision has been resort ed to.

(3). I have given my anxious and thoughtful consideration to the rival contentions and carefully perused the impugned order.

(4). Following infirmities are apparent in the impugned order of the trial Jud- ge:–

(a) The observations by the trial Judge that the undisputed fact is that the carbon copy bears signatures of Y.R. Singh, Man Singh and defendant No. 1 Shiv Kant and also the expression `Main Uprokt Se Sehmant Hun (I do agree with the above) and all these are originals should not have been made in the impugned order in view of averments made in the written statement by the defendants, denying the signatures and writing over the said document. The facts are very much in dispute.

(b) Without considering the contentions raised by the counsel for the defendants against the admissibility of the document, the trial Judge admitted the document as primary evidence.

(5). Against the admissibility of the said document, Mr. P.N. Agarwal, learned counsel for the defendants vigorously canvassed that though the document is purported to have been written on behalf of the plaintiff but it does not be

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