1. Specific performance suit — Secondary evidence of insufficiently stamped agreement photocopy refused. (Para 2 , 3 , 4 )
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2026 Supreme(Raj) 350
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR
BIPIN GUPTA, J.
Kamlesh W/o Tekchand – Appellant
Versus
Pappu Saini S/o Dedaram Saini – Respondent
S.B. Civil Writ Petition Nos. 15604, 17903 of 2025
Decided On : 10-04-2026
Advocates Appeared:
For the Appellants : Gajendra Singh Rathore, Neetu Mathur
For the Respondents: Z.A. Naqvi, Sehban Naqvi, Rabiya Mateen, Sahil Khan
For the Appellants : Gajendra Singh Rathore, Neetu Mathur
For the Respondents: Z.A. Naqvi, Sehban Naqvi, Rabiya Mateen, Sahil Khan
An insufficiently stamped document is inadmissible in evidence, and this statutory bar cannot be bypassed by introducing secondary evidence. Furthermore, a photocopy is not an 'instrument' capable of being impounded under the Stamp Act for the payment of deficient duty.
Headnote:(A) Stamp Act - Sections 35 and 37 - Indian Evidence Act, 1872 - Sections 64 and 65 - Admissibility of insufficiently stamped documents - Photocopy as secondary evidence - Whether a photocopy of an insufficiently stamped document can be impounded or admitted as secondary evidence - An instrument not duly stamped is inadmissible for any purpose, and this bar is absolute (Paras 17, 20) - Statutory bar against an inadmissible original cannot be circumvented by admitting secondary evidence, as admissibility is a condition precedent to the mode of proof (Para 19) - A photocopy does not constitute an 'instrument' capable of being impounded under the Stamp Act; the power of impounding applies only to original documents (Paras 23, 26).
(B) Indian Evidence Act, 1872 - Section 65 - Secondary evidence - Requirements for admissibility - Party must establish foundational facts including the existence of the original document, its execution, and valid reasons for its non-production (Paras 22, 23) - Mere production of a photocopy does not ipso facto make it admissible as secondary evidence (Para 23).
Facts of the case:
In a suit for specific performance of an agreement to sell, the plaintiffs sought permission to lead secondary evidence using a photocopy of the agreement, as the original was not in their possession. They further applied to have the photocopy impounded for the payment of deficient stamp duty to render it admissible. The Trial Court rejected both applications, ruling that an insufficiently stamped document is inadmissible and a photocopy cannot be impounded in the absence of the original.
Findings of Court:
The court held that the bar under Section 35 of the Stamp Act operates at the threshold of admissibility. Since the original instrument was insufficiently stamped, its secondary evidence cannot be admitted to bypass the statutory prohibition. Additionally, a photocopy does not answer the description of an 'instrument' that can be impounded.
Issues: Whether a photocopy of an insufficiently stamped document can be impounded under the Stamp Act and whether such a document can be permitted as secondary evidence.
Ratio Decidendi: The court ruled that what cannot be done directly cannot be permitted to be done indirectly; if the original document is inadmissible due to insufficient stamping, its secondary evidence cannot be admitted. Furthermore, the process of impounding is exclusive to original instruments and does not extend to photocopies.
Result: Writ petitions dismissed.
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Table of Contents
2. Petitioners sought secondary evidence and impounding of photocopy; respondents opposed as forged and insufficiently stamped. (Para 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 )
3. Secondary evidence of insufficiently stamped document inadmissible; photocopy cannot be impounded without original. (Para 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 25 , 26 )
4. An insufficiently stamped document inadmissible in evidence; secondary evidence also barred unless defect cured. (Para 18 , 19 , 20 , 21 , 27 )
5. Writ petitions dismissed; orders rejecting secondary evidence and impounding application upheld. (Para 28 , 29 )
6. Can secondary evidence of an insufficiently stamped document be admitted?
No, secondary evidence of an insufficiently stamped document is inadmissible as the statutory bar under Section 35 of the Rajasthan Stamp Act, 1998 applies equally to secondary evidence. (Para 16 , 17 , 18 , 19 , 20 , 21 , 27 )
7. Can a photocopy of a document be impounded under the Stamp Act?
No, a photocopy cannot be impounded as impounding under the Stamp Act requires an original instrument; a photocopy does not qualify as an instrument. (Para 12 , 22 , 23 , 25 , 26 , 27 )
8. What foundational facts must be established to lead secondary evidence?
The party must prove the existence, execution, and valid non-production of the original document, and that the copy is a true reproduction, as per Section 65 of the Evidence Act. (Para 22 , 23 , 25 )
9. Is a photocopy obtained under the RTI Act automatically admissible as secondary evidence?
No, a photocopy obtained under the RTI Act does not automatically become admissible; it remains subject to strict proof of foundational facts. (Para 22 , 23 , 25 )
JUDGMENT :
BIPIN GUPTA, J.
1. Since the present writ petitions arise from a common suit, both the petitions have been heard together and are being decided by this Common Judgment.
2. The writ petition bearing No. S.B. Civil Writ Petition No. 15604/2025 has been filed assailing the order dated 11.02.2025, passed by the learned Civil Judge, Virat Nagar, District Jaipur (Kotputli-Behror) in Civil Suit No.15/2019, whereby the application filed by the plaintiffs–petitioners seeking permission to lead secondary evidence in respect of the agreement to sell dated 12.03.2003, which was only available as a photocopy, has been rejected.
3. The writ petition bearing No. S.B. Civil Writ Petition No.17903/2025 has been filed assailing the order dated 26.08.2025, passed by the learned Civil Judge, Virat Nagar, District Jaipur (Kotputli-Behror) in Civil Suit No.15/2019, whereby the application filed by the plaintiffs–petitioners under Sections 35 and 37 of the Rajasthan Stamp Act, 1998 (hereinafter referred to as ‘the Act of 1998’) for impounding the agreement to sell dated 12.03.2003 and for sending the same for payment of appropriate stamp duty has been dismissed.
4. The controversy arises from the fact that the suit was filed by the plaintiffs–petitioners for specific performance of the agreement to sell dated 12.03.2003. The plaintiffs were neither in possession of the original document nor any certified copy thereof, and only had a photocopy of the said document. Accordingly, the petitioners initially filed an application seeking permission to lead secondary evidence of the agreement to sell dated 12.03.2003. The learned Trial Court dismissed the said application, holding that the plaintiffs were seeking to lead secondary evidence on a document which was insufficiently stamped and, therefore, inadmissible in evidence. The plaintiffs–petitioners challenged the order dated 11.02.2025 by filing S.B. Civil Writ Petition No.15604/2025.
5. Thereafter, the petitioners filed an application under Section 35 read with Section 37 of the Act of 1998, seeking a direction that the agreement to sell dated 12.03.2003 be impounded and sent to the competent authority for the purpose of payment of appropriate stamp duty, so as to render it admissible under the provisions of the Act of 1998. However, the said application was dismissed by the learned Trial Court on the ground that a photocopy, in the absence of the original document, cannot be impounded. Consequently, the application was rejected vide order dated 26.08.2025, which is under challenge in S.B. Civil Writ Petition No. 17903/2025.
6. Learned counsel for the petitioners, making submissions in both the writ petitions, contends that the petitioners ought to be permitted to lead secondary evidence of the document, as the original is not in their possession. It was submitted that the original document is with the Electricity Department. It was further submitted that the existence of the document has been sufficiently established, and therefore, the petitioners should be allowed to adduce the photocopy in secondary evidence.
7. Learned counsel for the petitioners further submits that once the existence of the document has been established, the photocopy thereof can also be impounded and sent to the competent authority for the purpose of payment of requisite stamp duty, so as to render it admissible under the provisions of the Act of 1998. Accordingly, it was prayed that the orders dated 11.02.2025 and 26.08.2025 passed by the learned Trial Court be quashed and set aside, and that the agreement to sell dated 12.03.2003 be permitted to be impounded and sent to the competent authority for payment of stamp duty. Upon such payment, the petitioners may be permitted to lead the said document in secondary evidence.
8. Learned counsel for the plaintiffs-petitioners relied upon the following judgments to buttress his arguments:
(i) Ferani Hotels Pvt. Ltd. vs. State Information Commissioner Greater Mumbai & Ors. 2019 (14)
