( 1. ) THE question raised in this petition is whether in secondary evidence, photo copy of the document, original of which is lost and was inadmissible in evidence, can be permitted ?

( 2. ) THE short facts of the case are that the petitioners are defendants in Civil Suit No. 69-A/1997 pending before Civil Judge Class-I, Sehora. Both the parties are real brothers and dispute is in respect of partition of family property. It is alleged that the father of parties Mooratlal executed a deed in the nature of family settlement on 7-6-1994. The photo-copy of the aforesaid document is filed in the record. It is alleged that the original document was obtained by plaintiff Sitaram from defendant No. 1 Sugreeva Prasad on the pretext that after consultation with his sons, he will settle the matter. Thereafter Sitaram has not returned the document to the defendants. The defendants have also issued a notice to the plaintiff to produce the document, but the plaintiff has not produced the original document. Now he has taken a stand that the original document is not in his possession. In the circumstances, the document of family settlement, photo-copy of which is on record be permitted to be adduced in secondary evidence. The plaintiff contested the aforesaid application on the ground that there was no family settlement between the parties. The plaintiff did not ask for original deed, nor he was given the deed by the defendant Sugreeva Prasad, the document is not in possession of the plaintiff. In fact the document is forged and can not be permitted in evidence by way of secondary evidence. The Trial Court by the impugned order (Annexure P-8), dated 6-7-2003 rejected the application filed by the petitioners, aggrieved by which this petition has been filed by the defendants.

( 3. ) LEARNED Counsel for petitioners submits that the document is admissible in evidence and secondary evidence of the document may be adduced. The aforesaid document may be received in secondary evidence for collateral purpose. If the Trial-Court is of the view that the document is insufficiently stamped, petitioners are ready to pay the deficit stamp duty. This petition may be allowed and the impugned order be quashed.

( 4. ) CONTRARY to the aforesaid, respondent has supported the order passed by the Trial Court and contended that the aforesaid prayer has been rightly rejected by the Trial Court and this petition is without any merit and may be dismissed.

( 5. ) TO appreciate the rival contention of the parties, it is necessary to look into the following provisions which are relevant for the decision in this case. Section 35 of the Indian Stamp Act, 1899 (hereinafter referred to as act for short) provides that the instrument not duly stamped is inadmissible in evidence. Section 35 reads as under:-

"35. Instruments not duly stamped inadmissible in evidence, etc.-- No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authorised to receive evidence or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped : Provided that- (a) any such instrument not being [a receipt], a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence or payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion; (b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it; (c) wh