Secondary evidence, like photocopies, must comply with evidentiary rules and stamping requirements to be admissible in court.

J U D G M E N T

Dated this the 6th day of December, 2022 A.Muhamed Mustaque, J.

In a rent control petition for eviction, during trial, an attempt was made by the tenant to cross examine the landlord with reference to the photocopies of the rent agreement and to mark the same. The landlord raised an objection but that has been overruled by a speaking order. This order is in question by way of a petition under Article

227 of the Constitution. There are two issues involved in this case, namely, (i) marking of the photocopy and, (ii) insufficiency of stamp duty borne on the instrument.

2. The dispute as above has arisen in the context of the landlord complaining that the tenant is in occupation of 11 rooms belonging to the landlord. The tenant contended that he is occupying only 7 rooms, as a tenant. The landlord claims that the rental arrangement was an oral lease. The tenant claims that the rental agreement was based on a written lease deed and the original of written deed is with the landlord. The landlord denied existence of the original lease deed.

3. The photocopy is in the nature of secondary evidence. Section 65 of the Indian Evidence Act states the cases in which secondary evidence relating to documents may be given. The original lease deed, according to the tenant, is in the possession of the landlord. The landlord denies the same. Section 66 of the Evidence Act says about rules of serving notice to adduce secondary evidence alleged to be in possession of the party with whom the original is kept. Without following the procedure under Section 66 , the secondary evidence of a document, the original of which is with another party, cannot be adduced. There is also serious dispute as to the stamp duty borne on the instrument. No doubt, insufficiently stamped photocopy of a document cannot be impounded, as it cannot be treated as an instrument for the purpose of stamp duty. However, when photocopy is sought to be received as a secondary evidence, the document must satisfy the condition for admissibility in evidence. Under the Kerala Stamp Act, 1959 an instrument not duly stamped is inadmissible in evidence. Section 34 of the Kerala Stamp Act prohibits any person/ authority to receive evidence of instrument not duly stamped.

4. One of the conditions to receive an instrument in evidence is, it must be duly stamped in accordance with law. If the original of an instrument produced is not duly stamped, the Court will have to proceed to impound the instrument in accordance with law. When a photocopy is produced, it cannot be per se called as an instrument. Therefore, even if the stamp appearing in the photocopy of the instrument is insufficient, the Court cannot order impounding of the instrument. {SeeHariom Agrawal v. Prakash Chand Malviya [2007 (8) SCC 514]}. However, in the guise of a photocopy and adducing it as a secondary evidence, the party cannot bypass payment of stamp duty on such instrument. This would defeat the very purpose of Section 34 of the Kerala Stamp Act. The admissibility of the instrument in evidence must satisfy the condition that the instrument bears a stamp of proper amount. In view of the law that, in order to admit a document as a primary evidence or in secondary evidence, it must bear a stamp of proper amount, the photocopy cannot be admitted without proof of proper stamp duty borne on the photocopy. If photocopy is sought to be relied as a secondary evidence and the Court is of the opinion that the stamp duty borne on the photocopy is insufficient, the Court will have to follow the procedure for impounding the instrument.

5. The Stamp Act completely shuts down adducing evidence of any nature of an instrument which is insufficiently stamped.

6. The Court cannot allow marking of a photocopy without following the procedure as contemplated under Section 66 of the Indian Evidence Act, if applicable and also without ensuring whether photocopy is properly stamped or not. The Rent Controller has to take a decision in