HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Writ Petition No. 5511/2021

Durga Shankar Bareth S/o Late Sh. Ramdan Bareth, Aged About 62

Years, R/o Kishangarh Bass, Distt. Alwar, Rajasthan.

----Petitioner/Defendant

Versus

1.

Shayam Lal S/o Sh. Karamchand, R/o Khanpur Mevan,

Tehsil Kishangarh Bass, Distt. Alwar.

----Respondent/Plaintiff

2.

Santosh Kanwar D/o Late Sh. Ramdan Bareth,

3.

Vimla Kanwar D/o Late Sh. Ramdan Bareth,

Both are R/o Kishangarh Bass, Tehsil Kishangarh Bass,

Distt. Alwar, Rajasthan.

----Proforma Respondents/Defendant

For Petitioner(s)

:

Mr. Ajay Goyal

For Respondent(s)

:

None Present

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Order

19/09/2022

None appears for the respondents despite service.

This writ petition has been filed under Article 227 of the

Constitution of India assailing the legality and validity of the order

dated 06.03.2021 passed by learned Additional District Judge No.2,

Kishangarh Bass, Alwar in Civil Suit No.34/34/2018 whereby, an

application filed by the respondent No.1/plaintiff under Section 65,

Evidence Act, 1872 (for brevity, “the Act of 1872”) and Section 35,

Stamp Act, 1899 (for brevity, “the Act of 1899”) seeking to lead

secondary evidence in respect of the photocopy of an unregistered

and insufficiently stamped agreement to sell, has been allowed.

(2 of 7)

[CW-5511/2021]

The facts in brief are that the respondent No.1/plaintiff filed a

suit for specific performance of the agreement to sell dated

06.05.2022 and permanent injunction. During its pendency, he

moved an application under Section 65 of the Act of 1872 and

Section 35 of the Act of 1899 seeking permission of the Court to lead

secondary evidence qua the sale agreement dated 06.05.2022. The

application has been allowed by the learned trial Court vide its order

dated 06.03.2021, the subject matter of challenge.

Assailing the order, learned counsel for the petitioner/defendant

No.1 submits that a photocopy of an insufficiently stamped document

is inadmissible in secondary evidence. He submits that a photocopy

of such document cannot be validated under Section 35 of the Act of

1899. Learned counsel, in support of his submissions, relies upon a

judgement of Hon’ble Apex Court of India in case of Hariom

Agrawal Vs. Prakash Chand Malviya; Civil Appeal

No.4696/2007. He, therefore, prays that the writ petition be

allowed, the order dated 06.03.2021 be quashed and set aside and

the application filed by the respondent No.1/plaintiff be dismissed.

Heard. Considered.

Vide order impugned, a photocopy of the insufficiently stamped

and unregistered agreement to sell has been permitted in secondary

evidence. A three-Judges Bench of the Hon’ble Apex Court of India

has, in case of Hariom Agrawal (supra), held as under:-

“7. The instrument as per definition under Section

2(14) has a reference to the original instrument. In State

of Bihar v. M/s. Karam Chand Thapar & Brothers

Ltd., AIR 1962 SC 110, this Court in paragraph 6 of the

judgment held as under :-

“6. It is next contended that as the copy of

the award in court was unstamped, no decree could have

been passed thereon. The facts are that the arbitrator

sent to each of the parties a copy of the award signed by

(3 of 7)

[CW-5511/2021]

him and a third copy also signed by him was sent to the

court. The copy of the award which was sent to the

Government would appear to have been insufficiently

stamped. If that had been produced in court, it could

have been validated on payment of the deficiency and

penalty under Section 35 of the Indian Stamp Act, 1899.

But the Government has failed to produce the same. The

copy of the award which was sent to the respondents is

said to have been seized by the police along with other

papers and is not now available. When the third copy

was received in court, the respondents paid the requisite

stamp duty under Se