A photocopy of an unstamped document may be admissible as secondary evidence under specific circumstances despite objections under the Stamp Act.

JUDGMENT

Anil Kshetarpal, J.

This is plaintiffs revision petition against the interlocutory order passed by the trial Court on 23.03.2021, whereby, the Court of first instance has held that copy of agreement to sell dated 10.01.2012 (Ex.PW7/1) is inadmissible in evidence and it cannot be impounded as being a photocopy as it is not an instrument on which the plaintiff can be asked to make good the deficient stamp duty or pay penalty.

2. In order to comprehend the issue involved in the present case, the relevant facts, in brief, are required to be noticed.

3. The plaintiff has filed a suit for possession (as owner) by way of specific performance of an agreement to sell dated 13.09.2012 with respect to land measuring 58 bighas and 7 biswas.

4. It is the case of the plaintiff that on 10.01.2012 an agreement to sell with respect to 75 bighas and 11 biswas land was entered into by defendant No.1 on the receipt of Rs.10,00,000/- as earnest money for a total sale consideration of Rs.5,55,00,000/-. The sale deed of the property was agreed to be executed on or before 11.07.2012. As per the agreement, Rs.40,00,000/- was to be paid on 18.01.2012. The defendant-Trust passed the resolution in a general meeting on 15.01.2012 to this effect and on 18.01.2012 Rs.40,00,000/- was paid against the receipt. On 23.03.2012, certain conditions of the original agreement to sell were modified and another sum of Rs.50,00,000/- as an earnest money was paid. The plaintiff has been making further payment from time-to-time, which was being received by defendant No.1. Thereafter, on 13.09.2012, the agreement to sell dated 10.01.2012, which was modified on 23.03.2012 and was further divided into three agreements and one sale deed in the following manner:-

"(i) Agreement to sell for land measuring 58 bigha 7 biswa dated 13.09.2012;

(ii) Agreement to sell for land measuring 6 biswas 16 biswasi dated 13.09.2012;

(iii) Agreement to sell for land measuring 11 bigha 18 biswasi dated 13.09.2012;

(iv) Sale deed for land measuring 5 bigha dated 17.09.2012."

5. On 09.10.2010, the suit of possession as an owner by way of specific performance of the agreement to sell dated 13.09.2012 was filed. Defendant No.1 admitted execution of agreement to sell dated 13.09.2012 with respect to 58 bighas and 7 biswas of land (the suit land). However, execution of the agreement to sell on 10.01.2012 was disputed. Defendant No.3 filed a separate written statement, wherein, it was stated that the agreements dated 13.09.2012 were not in the continuation of the previous agreements.

6. On an application filed by the plaintiffs for permission to prove the agreement to sell dated 10.01.2012 by way of secondary evidence, the permission was granted on 31.08.2012. Thereafter, defendant No.1 made a statement in the Court as noted in orders dated 10.07.2018 and 01.10.2018 that he is ready to execute the sale deed on the basis of agreement to sell dated 13.09.2012. The matter was referred to the National Lok Adalat, however, defendants failed to appear in person for recording the statement for the purpose of compromise. Thereafter, the parties were directed to lead evidence. The defendants filed an application on 09.01.2019 for directing the plaintiff to deposit the balance sale consideration. The aforesaid application was disposed of on 01.03.2019. On 05.11.2016, Sh. Sher Singh appeared on behalf of the plaintiff and produced copy of the agreement to sell dated 10.01.2012 as Ex.PW7/1 as well as original agreement to sell dated 23.03.2012 as Ex.PW7/2. The statement of the plaintiff is extracted as under:-

"Stated that In am tendering my affidavit/examination-in-chief Ex.PW-7/A in my evidence and the