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CASE NO.:

Appeal (civil) 4696 of 2007

PETITIONER:

Hariom Agrawal

RESPONDENT:

Prakash Chand Malviya

DATE OF JUDGMENT: 08/10/2007

BENCH:

B.N. AGRAWAL,P.P. NAOLEKAR & P. SATHASIVAM

JUDGMENT:

J U D G M E N T

(arising out of Special Leave Petition (Civil)No.12573 of 2006)

P.P. NAOLEKAR, J.:

1. Leave granted.

2. The facts necessary for deciding the question

involved in the case are that one Maganlal Jain was the

original tenant of Prakash Chand Malviya, the respondent-

landlord. Maganlal Jain had given the shop to the appellant

for carrying out the business. On a dispute being arisen

between the respondent-landlord, the original tenant Maganlal

Jain and the appellant herein, an agreement was executed on

28.3.1988 by the respondent (landlord) and the appellant

(subsequent tenant), whereby the landlord tenanted the shop

to the appellant on payment of an advance amount of

Rs.4,75,000/- which was received by the landlord in cash in

front of the witnesses. The agreement further provided that in

case the landlord requires eviction of the tenant from the shop

he will have to give notice of 6 months to the tenant and will

also refund the payment of Rs.4,75,000/- to the tenant. On

the other hand, if the tenant wants to vacate the shop he will

have to give prior notice of 6 months to the landlord and the

landlord will pay back Rs.4,75,000/- to the tenant. This

document was affixed with a notarial stamp of Rs.4/-. Under

the Indian Stamp Act, 1899 (for short \023the Act\024), agreement of

this nature requires affixture of a stamp of Re.1/- under

Schedule I, Item 42 of the said Act.

3. On 12.5.2003 a suit for eviction was filed by the

respondent-landlord before the Civil Judge, Bhopal under

Section 12(1)(f) of the Madhya Pradesh Accommodation

Control Act, stating the bonafide need for the use of the

accommodation by his elder son. It was the case of the

appellant-tenant that the original copy of the agreement which

was with him was stolen and thus he was unable to produce

the original document dated 28.3.1988, but was in possession

of a photostat copy of the agreement and made a prayer for

receipt of the photocopy of the agreement as secondary

evidence under Section 63 of the Indian Evidence Act, 1872.

The trial court allowed the application for admission of the

photocopy of the document and admitted it as secondary

evidence under Section 63 of the Evidence Act.

4. On being aggrieved by the order of the trial court,

the respondent-landlord filed a writ petition before the High

Court. The High Court set aside the order of the trial court and

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remitted the matter back to decide the question as to whether

a photocopy of an improperly stamped original document can

be received in secondary evidence. After hearing the parties,

the trial court by its order dated 9.8.2005 ordered that the

document be impounded, it being insufficiently stamped; the

document was sent to the Collector of Stamps for affixing

appropriate stamp duty and thereafter for sending the

document back to the court. This order was challenged by the

respondent in a review petition which was dismissed by the

trial court. Thereafter, a writ petition was filed before the

High Court. The High Court by its judgment dated 3.5.2006

held that the impugned document which is a photocopy of the

agreement, original of which is lost, cannot be admitted in

evidence; and that such a document can neither be

impounded nor can be accepted in secondary evidence.

5. It is an admitted fact that the photostat copy which

is sought to be produced as secondary evidence does not show

that on the original agreement proper stamp duty was paid.

The photostat copy of the agreement shows that the original

agreement carried only a notarial stamp of Rs.4/-. Thus the