The main legal point established in the judgment is that secondary evidence should be allowed in the absence of primary evidence, especially when the original document is found to be inadmissible for being insufficiently stamped, unregistered, or not proved according to law.

A.N.Jindal, J.

1. This order of mine shall dispose of two connected petitions Nos.4425 and 5951 of 2009, since both the petitions involve the same question of law and are between the same parties, as such they are being decided together.

2. Assailed in these petitions are the orders dated 23.7.2009 and 4.9.2009 (Annexure P-2, in both the petitions), passed by the Additional Civil judge (Sr. Division), Talwandi Sabo, dismissing the application moved by the petitioner for leading secondary evidence by way of proving agreement to sell dated 5.11.2004 executed between the parties. Though the petitioner has relied upon the judgment delivered in case Kuldip Kaur vs. Chhatar Singh 2008 (3) Civil court Cases 775 (Pandh) in order to contend that the photo copy of the sale deed could be allowed to be proved by way of secondary evidence yet, the court refused to place reliance on the said judgment while observing that the petitioner was seeking permission to prove photo copy of the photo copy of the original. Picking up the arguments from these observations, the learned counsel has presented before me attested copy of the agreement stating that he never wanted to prove photo copy of the photo copy but he wanted to prove copy of the original agreement to sell attested by the Notary Public which had been prepared from the original.

3. The learned counsel for the respondent has nothing to say about the aforesaid judgment as well as the contradictory observations given by the trial court.

4. The other argument raised by the learned counsel for the respondent is that the agreement dated 5.11.2004 being unregistered, is inadmissible, therefore, the secondary evidence could not be allowed. Here, it may be mentioned that the agreement dated 5.11.2004 is regarding the sale of jeep "tata-207 Di" and the same was written on the stamp paper for the value of rs.25/-. It may further be observed that as per Schedule I (Stamp Duty on instrument) exemption 5 (a) no stamp duty is leviable on such agreements. Thus, such agreements though may be un- stamped could not be refused in evidence as it neither required registration nor any stamp was required to be affixed.

5. It was also observed in case Ashok Kumar Sachdeva vs. Harish malik, 2008 (3) Civil Court Cases 397 (Pandh), that existence of loss of original can only be determined when the opportunity is provided to the concerned party to lead evidence to that effect. It is only after providing opportunity to lead secondary evidence that court could form its opinion regarding existence of the document and circumstances enumerated in Sec.65 of the Evidence Act.

6. Here, in the instant case, it is not the only photo copy but it is attested and true copy of the original which could not be refused as per provisions of Sec.65 (a) of the Evidence Act particularly when the allegations set up by the petitioner are that the original document in question was in possession or power of the person against whom the same is sought to be proved. As such, as a general rule, this evidence, having fallen within the purview of Sections 63 and 65 of the Evidence Act, should have been allowed subject to just exceptions if the original itself is found to be inadmissible for being insufficiently stamped, unregistered or not proved according to law, but these aspects could be gone into at the time when evidence is led. Essentially the secondary evidence is admissible only in the absence of primary evidence which may be given in the absence of better evidence which was required to be given first, when proper explanation of its absence is given, the secondary evidence should be allowed.

7. Having perused the impugned order, the trial court has not taken note of the aforesaid legal aspects of the case, therefore, the impugned order has been rendered illegal resulting into miscarriage of justice. Secondary evidence of the valuable document has been declined by assigning no adequate reasons, as such, the same deserves to be rev