Photocopies of insufficiently stamped documents cannot be admitted as secondary evidence.

KARAMJIT SINGH, J.

Present petition has been filed by the petitioner/defendant No.1 for setting aside order dated 10.8.2016 (Annexure P-6) passed by learned Civil Judge, Junior Division, Batala in Case No.28 of 2012 titled Tej Kaur v. Kuldip Singh and others, vide which, the application filed by the plaintiff/respondent No.1 under Section 65 of Evidence Act to prove one agreement to sell dated 11.3.2011 executed by Karamjit Singh in favour of the petitioner by way of secondary evidence, was allowed.

2. Brief facts of the case are that respondent No.1 filed suit for permanent injunction restraining the defendants including the petitioner from obstructing or encroaching the passage in dispute. The suit is being contested by the defendants. Learned trial Court directed both the parties to maintain status quo vide order dated 9.6.2012. Thereafter, respondent No.1 filed an application under Order 39 Rule 2A CPC on the ground that the other party committed breach of the aforesaid order of status quo.

3. The said application under Order 39 Rule 2A CPC is contested by the petitioner and other defendants and during the pendency of the said application, respondent No.1 filed an application to produce and prove one agreement to sell dated 11.3.2011 by way of secondary evidence in order to prove the existence of passage in dispute. The application was resisted by the petitioner. The learned trial Court allowed the said application and permitted respondent No.1 to lead secondary evidence to prove agreement to sell dated 11.3.2011.

4. Being aggrieved, the present revision petition has been filed by the petitioner.

5. I have heard the counsel for the parties.

6. Counsel for the petitioner has inter alia contended that that the alleged agreement to sell dated 11.3.2011 is not relevant for the disposal of the application under Order 39 Rule 2A CPC. It has been further contended that from the perusal of the photocopy of the said agreement to sell, it appears that the same was executed on stamp paper of Rs. 500/- and thus, the said document is under stamped. Counsel for the petitioner further submits that respondent No.1 intends to produce and prove photocopy of the said insufficiently stamped document which is not permissible under law. In support of his contentions, counsel for the petitioner has placed reliance upon the decision of Hon'ble Supreme Court in Hariom Agrawal v. Prakash Chand Malviya 2007(4) RCR (Civil) 548 wherein it was held that since the original document was inadmissible being not sufficiently stamped, its photocopy cannot be allowed to be taken as secondary evidence and copy of the said document cannot be validated by impounding it. Hon'ble Apex Court further held that such photocopy cannot be admitted as secondary evidence even if required fee and penalty is paid as impounding could be done in respect of the original document and not its copy. Counsel for the petitioner has further contended that in light of the aforesaid settled position of law, the impugned order being illegal, deserves to be set aside.

7. Counsel for respondent No.1, while supporting the impugned order, has inter alia contended that agreement to sell dated 11.3.2011 is necessary for proper adjudication of the application under Order 39 Rule 2A CPC and as the original of the said document is not available, learned trial Court rightly allowed the respondents to produce its copy by way of secondary evidence. It has been prayed that the present revision petition be dismissed.

8. I have considered the submissions made by the counsel for the parties.

9. Admittedly, respondent No.1 intend to produce photocopy of agreement to sell dated 11.3.2011 by way of secondary evidence. Concerned photocopy of the document is Annexure P-4. Counsel for respondent No.1 has not disputed the fact that photocopy (Annexure P-4) shows that the original document was insufficiently stamped. Hon'ble Apex Court in Hariom Agrawal's case (supra) has clearly held that if the document was not suff