1. By this petition, petitioner has challenged order dated 9.8.2005 passed by XII Civil judge, Class II, Bhopal in Regular Civil Suit No. 121-A/2004.

2. Facts of the case in a nutshell are that the respondent Hariom Agrawal is the tenant of petitioner/owner Shri Prakash Chand Malviya of House No.1, Lakherapura, Bhopal. The petitioner filed suit for eviction on ground of 12 (1) (f) of the M.P. Accommodation Control Act for the need of his elder son. The respondent/tenant resisted the suit stating that he was in possession of the disputed accommodation, as per arrangement that he had paid to the petitioner Rs.4.75 lacs as advance and duly executed receipt and on condition that six months notice would be given in advance on arising personal need so also the amount of Rs.4.75 lacs was to be returned. The petitioner owner, however, had lost the original receipt and filed application for receiving the photocopy of the receipt as secondary evidence.

3. The trial Court allowed the application for receiving the secondary evidence by order dated 12.1.2005. Being aggrieved the petitioner filed WP No. 890/2005. The Hon'ble High Court remitted the matter by order dated 13.5.2005 directing the trial Court to decide whether an unstamped original document having been lost, photocopy thereof would be permitted as secondary evidence. The trial Court directed the impounding of the document. The petitioner filed review which was also dismissed and hence the present petition.

4. The main thrust of the argument of counsel for the petitioner is' that a photo copy of the original document of receipt could not be accepted as secondary evidence especially when the original itself was not duly stamped then no proceedings could be initiated for impounding under section 33 (1) of the Indian Stamp Act, 1899.

5. Counsel for the petitioner has placed reliance on judgment reported in Somdutt Builders v. State of U.P. and others [AIR 2005 Allahabad 234] whereby the Court held that: "when an understamped document was to be impounded and the initiation was made on the basis of a photocopy of the original document, the provisions of Stamp Act required summoning of the original document for ascertaining the liability to pay stamp duty and since the original had never been impounded by the authority nor it was produced before the District Magistrate then the procedure for impounding the document had not been followed and the District Magistrate had no jurisdiction to initiate proceedings.

6. The counsel submitted that in the present case the original receipt was apparently unstamped and never impounded then the photocpy could not be accepted in evidence leave alone the impounding which would also be contrary to provisions of law. Referring to the section 33 of Indian Stamp Act, AIR Manual (V.R. Manohar and W.W. Chitaley) 5th edition. Counsel pointed out that "The Stamp Act contemplates the production of the instrument itself and not its copy nor its prepared replica for purposes of impounding and the power and authority to impound which solely depends on the terms of the statute cannot be invoked apart from them 1961 (1) Andhra WR 183 (187) (DB), (1957) 2 Andhra WR 280 overruled.

7. The counsel also further relied on Jupudi Kesava Rao v. Pulavarthi Venkatasubbarao and others [AIR 1971 SC 1070] whereby the apex Court overruled AIR 1927 Rang 109 and AIR Mad. 431 and held that definition of 'instrument' under section 2 (14) of Stamp Act, 1899 does not cover "copy" of document for the purposes of Stamp Act and in view of section 35 and 36 secondary evidence by way of oral evidence or copy of the document insufficiently stamped is not admissible in a suit even though objection to its admissibility cannot be taken under the Evidence Act. Section 35 and 36 of the Stamp Act are not concerned with copy of document. A party can only be allowed to rely on a document which is an instrument for purposes of these sections. Section 36 does not ap