ORDER
Dipak Misra, J.
1. The petitioner filed a Civil Suit No. 46-A/2003 (Old No. 12-A/99) for specific performance of contract to sell the suit property and with the passage of time, it came to be dealt with by the XIXth Additional District Judge, Indore. It is pleaded in the plaint that the parties had entered into a written agreement for sale of the suit property and the total consideration had been paid to the respondent No. 2, the defendant in the suit. After the execution of the agreement, the original had been retained by the said respondent and a plain copy was given to the petitioner. It was set forth that the transaction has been mentioned by the respondent No. 2 in the relevant income tax return. The copy of the plaint has been brought on record as Annexure P-1.
2. In the written statement filed by the defendant, he did not dispute the receipt of the amount but denied the fact of any agreement between the parties having been executed. After commencement of recording of the evidence of the plaintiff, as the original of the document was retained by the defendant, the plaintiff-petitioner submitted an application under Section 65 of the Evidence Act for adducing secondary evidence in respect of the documents mentioned in the application. Copy of the said application has been brought on record as Annexure P-5. Am objection was filed by the respondent No. 2 opposing the said application. The learned Trial Judge upon hearing the parties allowed the application under Section 65 of the Evidence Act by order dated 17-7-01 contained in Annexure P-7.
3. Being aggrieved by the aforesaid order, the second respondent herein preferred a revision before the High Court at Indore Bench on 23-7-01 forming the subject matter of Civil Revision No. 748 of 2001. After the Code of Civil Procedure was amended with effect from 1-7-02, the defendant-respondent withdrew the Civil Revision with liberty to file a review application. The order passed in civil revision has been brought on record as Annexure P-9.
4. As put forth, the respondent No. 2 filed an application for review of the earlier order dated 17-7-01 along with an application for condonation of delay in filing the application for review. The said applications were registered by filing objection by the plaintiff.
5. The learned Trial Judge allowed the application for condonation of delay and after adverting to the application for review, allowed the same by the impugned order dated 17-7-01. The reason ascribed in the order allowing the review is that the order passed on the earlier occasion was contrary to the decision rendered by the Apex Court in the case of Jupadi Kesava Rao v. Pulavarthi Venkata Subba Rao and Ors. : AIR 1971 SC 1070.
6. In the present writ petition, the plaintiff-petitioner while challenging the order passed in the application for review has also called in question the constitutional validity of Section 35 of the Indian Stamp Act, 1899. It is urged in the petition that the Indian Stamp Act, 1899 (for brevity 'the Act') is a fiscal statute and the object or purpose of the Act is to collect revenue by imposing stamp duty on every document which is liable to such duty and if the document is not so stamped, then the penalty is to be levied under Section 35 of the Act. It is contended that for the purpose of the Act and to serve the Legislative intent, it can make no difference between the duty and penalty which is payable on the original document and the copy. It is averred that if the Indian Stamp Act permits for admission of copies of the original instrument on payment of duty and penalty, for the purpose of harmonious construction of Section 65 of the Evidence Act, it should have been made applicable to the secondary evidence. It is his stand in the writ petition that in the present form, Section 35 of the Act nullifies to a large extent Section 65 of the Evidence Act and thereby invites the frown of Article 14 of the Constitution of India.
7. It is urged that the learned Trial Judge on merits could not have dealt with the application for review and in any case, the right stage would have been to file the document and thereafter consider the objections on the same but the learned Trial Judge has erroneously expressed an opinion that the said document is not admissible in law.
8. A return has been filed by the Union of India, the respondent No. 1 herein, contending, inter alia, that the provision is constitutional as the Legislative intention is very clear and it does not play four of Article 14 of the Constitution of India.
9. We have heard Mr. S.C. Bagadia, learned Senior Counsel with Mr. Kapil Jain for the petitioner, Mr. Shekhar Sharma, learned Standing Counsel for Union of India, the respondent Nos. 1 and 4 and Mr. A.M. Mathur, learned Senior Counsel with Mr. Ashok Lalwani, Mr. Abhinav Dhanodkar and Mr. B.L. Mehta for the respondent No. 2.
10. Mr. Bagadia, learned Senior Counsel, has raised the following contentions:
(i) The provision contained in Section 35 of the Act to the effect that if instrument is not duly stamped, it is inadmissible in evidence fundamentally nullifies the provision as contained in Section 65 and thereby ushers in a state of discrimination which is not permissible as it offends Article 14 of the Constitution of India.
(ii) The provision by restricting it to the instrument and not including the document differentiates between two categories of documents, namely, original and its copy which is per se irrational and unreasonable.
(iii) Section 35 has not visualized many a situation like when a document in its original is retained by force by someone or procured by fraud or destroyed by natural calamity and, thus, the provision is totally arbitrary and unreasonable and deserves to be declared ultra vires.
(iv) The stamp duty being a fiscal statute should have restricted itself to the fiscal field and not dwelled upon the field of admissibility of a document in such a strict manner.
(v) The learned Trial Judge has not acted within his jurisdiction to review the order as the same does not come within the purview of review.
(vi) The learned Trial Court has fallen into grave error by declaring the document as inadmissible when the plaintiffs evidence was in progress whereas he should have waited for the plaintiff to tender the document and then taken a decision thereon.
11. Mr. Mathur, learned Senior Counsel, per contra, propounded number of contentions to highlight that Section 35 of the Act does not suffer from the vice of constitutionality. In this regard, Mr. Shekhar Sharma, leaned Standing Counsel for the Union of India, adopted the arguments canvassed by Mr. Mathur. Mr. Mathur, who represents the respondent No. 2, in addition to the aforesaid submissions, supported the order passed by the learned Trial Judge. It would be appropriate to enumerate the submissions of the learned Senior Counsel in seriatim as follows:
(a) Section 35 of the Act and Section 65 of the Evidence Act operate in two different fields and, hence, it would be inappropriate to compare the provisions.
(b) The submissions that it is a fiscal statute and, therefore, the field should have been restricted to the fiscal interest of the State alone and there should have been no entrenchment pertaining to the field of evidence, is totally sans substance as the Legislature in its wisdom has laid down the parameters and such parameters cannot be stated to be unreasonable as the same subserves the purpose of the enactment.
(c) Section 35 uses the term 'instrument' whereas Section 65 uses the term 'document' and, therefore, the area of operation is different and the classification being permissible, the question of discrimination is not attracted.
(d) The Trial Court has correctly allowed the application for review as a plain copy of the document was sought to be introduced which is totally impermissible in view of Section 35 of the Act and when the earlier order was contrary to the decision rendered in AIR 1971 SC 1070 (supra), no fault can be found with it.
12. The learned Senior Counsel, to bolster the submission, has placed reliance on the following decisions:
Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius and Ors. AIR 1954 SC 526, Commissioner of Sales Tax v. Hukumchand Mills : 2004 (2) MPLJ 492, Board of Control for Cricket, India and Anr. v. Netaji Cricket Club and Ors. : AIR 2005 SC 592, Jupadi Kesava Rao v. Pulavarthi Venkata Subba Rao and Ors. : AIR 1971 SC 1070, Hariom Agrawal v. Prakash Chand Malviya AIR 2008 SC 166, V. Venugopala Ravi Verma Rajah v. Union of India and Anr. : AIR 1969 SC 1094, Federation of Hotel & Restaurant v. Union of India and Ors. : AIR 1990 SC 1637, Commissioner of Sales Tax, U.P. v. Modi Sugar Mills Ltd. : AIR 1961 SC 1047, Commissioner of Wealth Tax Gujarat-III, Ahmedabad v. Ellis Bridge Gymkhana etc. AIR 1998 SC 120, Rai Ramkrishna and Ors. etc. v. State of Bihar : AIR 1963 SC 1667, Dr. T.A. Qureshi v. Commissioner of Income Tax, Bhopal : (2007) 2 SCC 759, Commissioner of Sales Tax, Delhi and Ors. v. Shri Krishna Engg. Co. and Ors. : (2005) 2 SCC 692, State of Maharashtra and Ors. v. Mana Adim Jamat Mandal : (2006) 4 SCC 98.
13. To appreciate the submissions raised at the bar, it is appropriate to reproduce Sections 35 and 36 of the Act which read as under:
35. Instruments not duly stamped inadmissible in evidence etc.-- No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:
Provided that,--
(a) any such instrument not being an instrument chargeable with a duty not exceeding ten naye paise only, or a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;
(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;
(c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898;
(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government or where it bears the certificate of the Collector as provided by Section 32 or any other provision of this Act.
36. Admission of an instrument where not to be questioned.--
Where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.
14. In this context, we may also reproduce Section 65 of the Evidence Act, which reads as under:
Section 65. Cases in which secondary evidence relating to documents may be given.-- Secondary evidence may be given of the existence, condition or contents of a document in the following cases:
(a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it;
(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) When the original is of such a nature as not to be easily movable;
(e) When the original is a public document within the meaning of Section 74;
(f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India, to be given in evidence;
(g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collections.
In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
14. In Jupadi Kesava Rao (supra), the Apex Court in Paragraphs 13, 14 and 15 has held as follows:
13. 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 fulfil 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.
14. If Section 35 only deals with original instruments and not copies Section 36 cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit. The words 'an instrument' in Section 36 must have the same meaning as that in Section 35. The Legislature only relented from the strict provisions of Section 35 in cases where original instrument was admitted in evidence without objection at the initial stage of a suit or proceeding. In other words, although the objection is based on the insufficiency of the stamp affixed to the document, a party who has a right to object to the reception of it must do so when the document is first tendered. Once the time for raising objection to the admission of the documentary evidence is passed, no objection based on the same ground can be raised at a later stage. But this in no way extends the applicability of Section 36 to secondary evidence adduced or sought to be adduced in proof of the contents of a document which is unstamped or insufficiently stamped.
15. The above is our view on the question of admissibility of secondary evidence of a document which is unstamped or insufficiently stamped, as if the matter were res integra, it may be noted however, that the course of decisions in India in the Indian High Courts, barring one or two exceptions, have consistently taken the same view.
After so stating, Their Lordships proceeded to state as follows:
As we have expressed our view already Section 35 imposed a bar on the reception of any but the original instrument and forbade the reception of secondary evidence. Section 36 only lifted that bar in the case of an original unstamped or insufficiently stamped document to which no exception as to admissibility was taken at the first stage. It did not create any exemption in the case of secondary evidence which a copy would undoubtedly be. In the case before the Judicial Committee the copy was one other than the final draft of the original document which had been lost through no fault on the part of the person intending to prove it and yet it was held that the Stamp Act ruled out its admissibility in evidence.
15. From the aforesaid proponement of law, it is quite luminescent that there had been distinction between the instrument and the document. Sections 35 and 36 are not concerned with any copy or document. Section 2(14) defines the term instrument not to cover a copy or document for the purposes of the Stamp Act. The submission of Mr. Bagadia is that the provision of the Stamp Act nullifies Section 65 of the Evidence Act and hence, it is discriminatory. Section 65 of the Evidence Act deals with secondary evidence relating to documents only. As we have already stated, there is a difference between an instrument and a document. The two provisions are not to be compared. What is urged by Mr. Bagadia is that there can be hardship on occasions. Neither the hardship nor the inconvenience can make a provision unconstitutional. When both the statutes operate in different fields, they cannot be given equal platform. The spheres of operation is different. The Legislature in its wisdom has made a distinction and the said distinction, we are disposed to think, is rational and relevant and does not invite the frown of Article 14 of the Constitution of India. At this juncture, it would not be out of place to refer to the recent decision rendered in case of Avinash Kumar Chauhan v. Vijay Krishna Mishra (2009) 2 SCC 352, wherein Their Lordships in Paragraph 25 have held as follows:
Section 35 of the Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes.
To arrive at such a conclusion, Their Lordships placed reliance on the decisions rendered in the cases of Ram Ratan v. Parma Nand : AIR 1946 PC 51, Bhaskarabhoila Padmanabhaiah v. B. Lakshminarayana AIR 1962 AP 132, Sanjeeva Reddi v. Johanputra Reddi : AIR 1972 AP 373, T. Bhaskar Rao v. T. Gabriel : AIR 1981 AP 175 and Chandra Sekhar Misra v. Gobinda Chandra Das : AIR 1966 Orissa 18.
We have referred to the said decisions only to show that there is a distinction between the two enactments and they have been accepted by the Courts of law.
16. The next argument on behalf of Mr. Bagadia is that the Court should not have allowed the review at that stage. The learned Trial Judge has allowed the review and held that:
I.L. No. 26, dated 9-9-2002 filed by the defendant (under Order 47 Rule 1, CPC), decided in affirmative under the following grounds:
That, earlier on filing of application, I.L. No. 21 under Section 65, Indian Evidence Act, 1972 by the plaintiff, the Court allowed the same for adducing secondary evidence with regard to the photocopy of document dated 4-2-88, which is an agreement and on which the suit of the plaintiff is based. This application was opposed by the defendant on the ground that the document is not admissible in evidence, the document is not sufficiently stamped and copy of the same is not admissible.
The defendant placed reliance on AIR 1971 SC 1071, in which it is held that if any document is not stamped or not sufficiently stamped, the contents of the documents cannot be proved by secondary evidence in the light of Sections 35 and 36 of Indian Stamps Act, 1899.
Sections 35 and 36 of the Indian Stamps Act, 1899 relates to the original document and not the copy of the document. In this case, photocopy of the document agreement dated 4-2-88, on which the plaintiffs suit is based has been filed and not the original document, therefore, the defendant opposed the application for secondary evidence.
The Court did not follow the principles laid down in : AIR 1971 SC 1070 (relied by the defendant) but, followed AIR 1971 P&H; 488, which is also regarding the admissibility of the document. Needless to say on the similar point when the Supreme Court has laid down the principle on the same point, it is not necessary to analyze AIR 1971 P&H; 488. As regarding raising objection by the defendant the objection was raised at the time of recording evidence of Vijay Choudhary (P.W. 1) at Para 13 of his statement when the document dated 4-2-88 was tendered.
The Court held that it is a fit case for allowing the application under Order 47 Rule 1, CPC for there is mistake apparent on the face of the record. Consequently, the application, I.L. No. 26, dated 9-9-02 under Order 47 Rule 1, CPC was allowed and earlier order dated 17-7-01 (which was pronounced allowing I.L. No. 21 under Section 65, Indian Evidence Act) is amended to the extent that the plaintiffs document agreement dated 4-2-88 is not admissible in evidence, therefore, the plaintiff cannot adduce secondary evidence under Section 65, Indian Evidence Act, 1872 to this document.
17. In our considered opinion, the permission was granted to adduce secondary evidence with regard to the factum of the document which was an agreement and on which the suit of the plaintiff was based. The application was opposed by the defendant on the ground that the document was not admissible in evidence as it was not sufficiently stamped. A photocopy of the alleged instrument cannot be tendered in evidence. Section 35 clearly prohibits so but the learned Trial Judge was not aware of the principles laid down in Jupadi Kesava Rao (supra).
18. In view of the aforesaid, we do not find any error in the order allowing the review. Consequently, the writ petition, being devoid of merit, stands dismissed. However, as the suit is pending since long, the Trial Judge shall positively decide the same within a period of three months from the date of receipt of the order passed today. Liberty is granted to the petitioner to produce a copy of the order before the learned Trial Judge. There shall be no order as to costs.