The main legal point established in the judgment is the strict application of stamp duty provisions under the Indian Stamp Act, specifically regarding the admissibility of secondary evidence of unstamped instruments.

Rohit Arya, J.

1. This petition, under Article 227 of the Constitution of India, by defendants is directed against the order dated 8-4-2010 passed by I ADJ, Gwalior in Civil Suit No. 2A/09, dismissing defendants’ application under section 35 of the Indian Stamp Act (for short "the Act"), as well as, amendment application under Order 6, Rule 17 , Civil Procedure Code.

2. Facts necessary for disposal of this petition are to the following effect:

Respondent No. 1/plaintiff has filed a suit for declaration, possession and injunction against petitioners and respondent Nos. 2 and 3, alleging that the suit land situated at Village Thati, District Gwalior, was sold by him to the petitioners-defendants and respondent No. 2 for a total sale consideration of Rs.1,27,000,00/- and agreement to sale was executed for the same amount i.e. Rs.1,27,000,00/-, but, later on sale deed of the aforesaid land was executed on 30-3-2007 for Rs.38,30,000/- only and the same was registered on 27-7-2007. It was alleged that to avoid stamp duty, the sale deed was undervalued and, therefore, less stamp duty was paid by respondents-defendants. Besides, the complete consideration amount was also not paid as detailed in the plaint. With the aforesaid pleadings amongst others, declaration has been sought that the sale deed dated 30-3-2007 registered on 27-7-2007 be declared as null and void on the premise of non payment of complete amount of consideration as agreed to under the agreement to sale and playing fraud upon the respondent No. 1-plaintiff.

3. Petitioners-defendants filed written statement and denied plaint allegations inter alia contending that there was no agreement to sale dated 3-8-2006 as alleged. The sale deed was executed on the actual amount of consideration agreed to and passed on to respondents-plaintiffs. Besides, respondents-plaintiffs in other judicial and revenue proceedings have admitted the factum of execution of sale deed on the amount of sale consideration shown therein. Thereafter, with their consent, the mutation order was passed and the suit land was mutated in the name of petitioners-defendants and the possession was delivered.

4. During pendency of the suit, respondents-plaintiffs filed an application under sections 65 and 66 of the Evidence Act seeking leave of the Court to adduce secondary evidence (copy of alleged agreement to sale) on the premise that the original was with the petitioners-defendants. The trial Court allowed the application on 1-7-2009. However, the said order was made subject-matter of challenge by petitioners-defendants in W. P. No. 3262/09. This Court, while disposing of the writ petition on 2-9-2009, has concluded as under :-

"In our opinion, when a fact is asserted by one of the parties and it is denied by the other then the basic burden to prove the existence of the fact and of the document would be upon the party asserting the said existence. In the present case, after proving the existence, the plaintiff would still be required to prove the contents of the document. If permission is not granted to him then the plaintiff would suffer a brunt to his case and cause. The defendants, however, would be entitled to rebut the entire evidence and would also be entitled to lead evidence to show that the document upon which reliance is placed was never executed and the terms so alleged by the plaintiff were never settled."

5. During the cross-examination of plaintiff, he was confronted with the alleged agreement to sale and questioned about the stamp duty paid on the said agreement. Plaintiff expressed his ignorance. At that stage, an application was filed by petitioners-defendants under section 35 of the Act questioning the admissibility of the said document on the premise that in the alleged agreement to sale, it is stated that sale consideration was Rs.1,27,000,00/- and, therefore, as per law 1% stamp duty amounting to Rs.1,27,000/- was required to be paid. That having not been done, plaintiff be directed to m