JAGDISH SINGH AND CO.AND ANOTHER Vs. RANJEET SINGH

JUDGEMENT

(1.) This revision petition has been filed against the order of the Addl. District Judge No. 2, Jodhpur dated Nov. 14, 1990, holding that the Photostat copies of the unstamped original receipts cannot be permitted to be read as their secondary evidence even on payment of required penalty under Sec. 35, Indian Stamp Act, (hereinafter to be called 'the Act'). File facts of the case giving rise to this revision petition may be summarised thus.

(2.) The plaintiff-non-petitioner has filed a suit for the recovery of certain amount against the defendant-petitioners. In their written statement, the defendants have averred that payments of total amount of Rs. 29,046.70 ps. have been made on different dates to the plaintiff and the latter has issued eight receipts whose Photostat copies have been filed alongwith it. An application under Sec. 65, Evidence Act was moved by the defendant-petitioners stating that the plaintiff requested them for giving the original receipts to enable him to make necessary entries in his account-books, they accordingly gave them keeping their Photostat copies, subsequently he did not return them and the same have not been produced in the court by him despite moving an application under Order 11, Rule 14 Civil Procedure Code. and praying that these Photostat copies may be allowed to be produced and proved as secondary evidence of the original receipts. After hearing the learned counsel for the parties, the learned trial court held that in secondary evidence of the original unstamped receipts their Photostat copies cannot be permitted to be proved and accordingly rejected plaintiff's application by its order under challenge.

(3.) It has been contended by the learned counsel for the defendant-petitioners that the learned trial court did not take into consideration the proviso (b) of Sec. 35 of the Act requiring payment of penalty only for admitting an unstamped receipt and non-applicability of Sec. 42 of the Act requiring endorsement of payment of duty and penalty on an instrument on which duty and penalty have been paid. He further contended that in Champalal Vs. Pannalal, 1951 RLW 258, and Jupadi Keshava Rao Vs. Pulavarthi Venkata Subbarao, AIR 1971 Supreme Court 1070 , the proviso (a) of Sec. 35 of the Act was under consideration and not proviso (b) relating to unstamped receipts and such these rulings are not applicable in the present case.