ORDER
D.S.R. Varma, J.
1. Heard both sides.
2. This civil revision petition is directed against the order, dated 16-8-2004, passed by the Principal Junior Civil Judge, Kurnool, allowing the application in IA No. 101 of 2003 in RCC No. 23 of 2002, filed under Sections 33 and 40 of the Indian Stamp Act, 1899 (for brevity 'the Stamp Act') seeking to send an unregistered document to the competent authority for the purpose of impounding and levying stamp duty and penalty.
3. The petitioner filed RCC No. 23 of 2002 seeking eviction of the respondent from the premises in question.
4. For the sake of convenience, the petitioner and the respondent will be referred to as 'the landlord' and 'the tenant' respectively.
5. The tenant along with the counter filed the document under controversy, which is said to be a memorandum of partition deed. But, the said document admittedly, is an unregistered and xerox copy of the original document. The original document has not been filed before the Court below.
6. At the threshold of the enquiry in the Rent Control Proceedings, the tenant filed the present application in IA No. 101 of 2003 seeking to send the document in controversy to the competent authority to impound and to levy appropriate stamp duty, if necessary, along with the penalty.
7. The said application had been opposed by the landlord on the sold ground that since the document in dispute was only a xerox copy, the Court cannot simply allow the said application and send the document to the competent authority under the Stamp Act.
8. In other words, it is the contention of the learned Counsel appearing on behalf of the landlord that inasmuch as the document in dispute is not an instrument, under Sub-section (14) of Section 2 of the Stamp Act, the Court cannot, rather need not, permit the tenant to have it transmitted to the competent authority under the Stamp Act for levying the Stamp duty and thereby getting it validated for the purpose of admissibility in evidence.
9. The Court below, however, allowed the said application and ordered to transmit the document in dispute to the competent authority i.e., the Revenue Divisional Officer, Kurnool, for impounding and levying the Stamp duty. Hence, the present civil revision petition.
10. The learned Counsel appearing on behalf of the landlord places reliance on the judgment rendered by a learned Single Judge of this Court in Akkam Laxmi v. Thosha Bhoomaiah, 2002 (4) ALD 808, wherein it was observed as under:
'A combined reading of both the sections would show that what was not admissible under the mandatory provisions of Section 35 when admitted inadvertently in evidence without taking any objection in that regard, such admission shall not be called in question at any stage of the suit or proceeding subsequently. Therefore, what Section 36 speaks of, in my considered view, is in regard to the original document itself. A combined reading of Sections 35 and 36 of the Act and the definition of 'instrument' as enjoined under Section 2(14) of the Act would leave no room for any doubt that what is required to be stamped is the original instrument itself and the Act has not envisaged a copy of the original for the purpose of Stamp Act. A copy of the document cannot be called as an instrument and, therefore, it is not required to be stamped.'
11. From the above, it is to be seen that the view of the learned Single Judge of this Court based on the judgment rendered by the Apex Court in Jupudi v. Pulavarthi, : [1971]3SCR590 , is clear to the effect that the document in dispute is not an 'instrument' as envisaged under Section 2(14) of the Stamp Act and that it is only the original instrument that is required to be stamped or impounded either for the purpose of impounding and levying the stamp duty along with penalty by the Court itself or upon an application made by the person who tries to introduce such document in evidence, to send the same to the competent authority under the Stamp Act for impounding and levying the stamp duty along with penalty.
12. A Division Bench of this Court (to which I am a party) in Chintalapudi Annapurnamma v. Andukuri Punnayya Sastry, : 2000(3)ALD649 (DB), held that it is imperative for the Court to send the document for impounding and levying the stamp duty upon an application made by the person who tries to introduce the document under Section 38(2) of the Stamp Act.
13. Now the question that falls for consideration in the present civil revision petition is-as to whether the Court is at an obligation to send the xerox copy of a document to the competent authority i.e., the Revenue Divisional Officer, Kurnool, upon an application filed under Section 38(2) of the Stamp Act?
14. In this context, first of all, it is to be seen as to whether a document is a primary evidence or secondary evidence as envisaged under Section 63 of the Indian Evidence Act?
15. Whether the document in dispute is a secondary evidence or not, may not, in fact, be gone into for the simple reason that admittedly it was not an original document and it was only a xerox copy.
16. As could be seen from the impugned order, admittedly, an attempt was also made by the Court below to examine the person in whose custody the alleged original document was and he stated that the original was missed.
17. Therefore, obviously, the document in dispute is not the original and consequently, at best, be termed as 'a piece of secondary evidence only'.
18. The Apex Court in Jupudi's case (supra), as was noticed by a learned Single Judge of this Court in Akkam Laxmi's case (supra), held as under:
'The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped or insufficiently stamped, would be tantamount to the document being acted upon by the person having by law or authority to receive evidence. Proviso (a) is only applicable when the original instrument is actually before the Court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document. Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by Section 63 of the Indian Evidence Act would not fulfill the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself. Section 35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document which is an instrument for the purpose of Section 35. 'Instrument' is defined in Section 2(14) as including every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded. There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act.'
19. Further, a Division Bench of this Court in E. Venkat v. E. Yadgir, : AIR1973AP398 , has taken the same view following the judgment rendered by the Apex Court in Jupudi's case (supra).
20. As already noticed, the present document in dispute would not fall under the definition of Section 2(14) of the Stamp Act.
21. Therefore, the document in dispute need not be taken into consideration either for the purpose of impounding or for the purpose of sending the same to the competent authority under the Stamp Act.
22. In fact, this question would fall for consideration before the Court only when the document is sought to be tendered for admission under Rule 4 of Order 13 of the Code of Civil Procedure. But, it is not in dispute that such stage has not reached yet.
23. In such a case, what would be the plausible remedy available for the tenant herein?
24. The answer is available under Rule 9 of Order 13 of the Code of Civil Procedure Code and also under Rule 131 of the Civil Rules of Practice, which Denvisage the conditions and contingencies under which a document can be sought to be returned.
25. From a reading of the above provision, the following would emerge:
(1) The parties can file the documents at the initial stage;
(2) Such documents shall be admitted into evidence as provided under Sub-rule (4) of Rule 13 of the Code of Civil Procedure;
(3) An unstamped or insufficiently stamped document is not admissible in evidence per se as postulated under Section 35 of the Indian Stamp Act, subject to Section 36;
(4) During the trial when actually the document is tendered to be marked as piece of evidence, objection can be raised either by the contesting party or by the Court as regards its admissibility on account of unstamped or insufficiently stamped an also can impound and eventually can levy the stamp duty along with penalty;
(5) In the event of any application made by the party who tries to introduce a document into evidence for admission can file an application under Section 38(2) of the Stamp Act to send the document to the competent authority for impounding and levying the stamp duty along with the penalty;
(6) As and when such an application is made, it is imperative for the Court, to send the document to the competent authority under the Stamp Act;
(7) When once the document is admitted into evidence and marked as an exhibit the same becomes the property of the Court;
(8) So long as the document was not tendered in evidence for admission and marked as an exhibit, such document shall be treated as the property of the party who files or places the said document on record; and
(9) At any stage, the document can be returned by the Court on an application made by the party, who places the document on record, subject to certain conditions.'
26. In the instant case, the tenant filed the said document and the matter did not reach the stage of enquiry/trial. Therefore, it is always open for the tenant to take back the document in dispute and approach the competent authority under the Stamp Act for impounding the same and levying the stamp duty along with penalty.
27. However, it is to be borne in mind that merely because a document is impounded by the Court, particularly the one, which is a xerox copy, even if impounded by the competent authority under the Stamp Act, need not necessarily be understood as legally got validated, for the purpose of admissibility of the same in evidence inasmuch as such document has to be tested on the touch stone of Sections 63 and 64 of the Indian Evidence Act.
28. For the foregoing reasons, I am of the view that the Court below was in error in simply sending the document in dispute to the competent authority i.e., the Revenue Divisional Officer, Kurnool, as prayed for by the tenant, instead the interim application in this regard ought to have been rejected, however, with liberty to the tenant to take return of the document and to take recourse as permissible under law.
29. In other words, the Court is not at an obligation to concede to the prayer of the respondent.
30. I do not see any justifiable reason for the Court below to pass the impugned order. Hence, the impugned order is liable to be set aside and accordingly the same is set aside.
31. In the result, the civil revision petition is allowed, at the stage of admission. In the circumstances, there shall be no order as to costs.
32. However, it is needless to mention that it is open for the tenant to take return of the document in dispute as provided under Rule 9 of Order 13 of the Code of Civil Procedure read with Rule 131 of the Civil Rules of Practice.