Ranawat,j - (1.) IN the second appeal the appellant has filed an application for permission to lead secondary evidence regarding the document which is the basis of the suit on the ground that the original document was lost while it was in the custody of the trial court after its evidence had been produced by the plaintiff and at the time when the defendant was leading his evidence and the plaintiff under the assumption that original bad been proved did not think it necessary at that time to lead secondary evidence of the contents of that document.
(2.) THE respondent has filed a reply to the petition of the appellant denying the fact that the document was lost while in the custody of the court. He has also stated that the document in question was unstamped and as such no secondary evidence should be permitted regarding its contents. Reliance has been placed on the decision of this Court in Champalal vs. Pannalal (1 ). The counsel of the plaintiff filed an affidavit in the trial court that he had produced the document in question in the court and that it was not returned to him thereafter and remained in the custody of the court. The report of the Ahalmad, which is on the record of the trial court is that the document was not received in the Ahalmadi and that it was not traceable in the section. The learned Munsif noted in the judgment of the case that the document in question was lost while it was in the custody of the court. Mr. Bhandari for the appellant has laid stress on the point that the document was unstamped and it was impounded and kept in the custody of the court till penalty thereon was paid and it was never returned to the party thereafter. He has, therefore, urged that the document should be taken to have been lost while it was in the custody of the court and after the evidence for the plaintiff had been closed. The learned Munsif also observed that the statement of Bhonrilal regarding the document not being in the custody of the plaintiff was wrong. Having regard to the opinion expressed by the trial court and also fact that the penalty was recovered on the document in question, the document should in ordinary course be presumed to have been taken in the custody of the court as stated by the counsel of the plaintiff. It was not returned to him and was also not traceable in the office of the court. It was held by the trial court as having been lost, from the custody of the court. The special feature of this case is that the document in question was post after its execution had been proved by the plaintiff and after the plaintiff bad closed his evidence and at the time the defendant was trying to rebut the evidence of the plaintiff. The plaintiff took it for granted that no secondary evidence was required to be led, as he had already proved i;s execution. Mr. Shah has agitated the point regarding the document being unstamped and unfit for receipt of secondary evidence. He has referred to the judgment of this Court in Champalal's case (1 ). It may be noted that in this case the document had already been admitted into evidence after the payment of penalty and as such the observations of the Court in Champalal's case do not apply to this case because of the fact that the document had already been accepted into evidence and it was lost later on while in the custody of the court. There can be little objection to the taking of secondary evidence of such a document in the very suit in which it had been admitted into evidence. The provision of sec. 36, Indian Stamp Act would come to the help of the plaintiff and the objection raised by the opposite side regarding the document being unstamped cannot be allowed to prevail. The document after it had been admitted into evidence on payment of penalty cannot be called into question at any subsequent stage of the same suit on the ground that it was not duly stamped. A copy of the document in question was placed on the record of the case but no evidence was led to show that it was a true copy of the original. An authenticated copy of the document also appears to have been sent by the trial court to the Nazim. It seems it would be in the interest of justice to allow the plaintiff so lead secondary evidence of the contents of the document in question. The petition of the appellant is allowed and he is permitted under Order 41, Rule 27 to lead secondary evidence regarding the contents of the document in question. It may be noted that at the time the case was tried the plaintiff remained under the misconception that no secondary evidence was necessary as he had already proved the execution of the document, but as the document has been lost thereafter it seems proper to have secondary evidence on the record of the contents of that document so that justice can be imparted properly. The record of the case may be sent to the court of the Munsif, Jaipur West, with a direction to allow the plaintiff to lead secondary evidence regarding the document Ex. 1 and to allow the respondent to rebut the evidence of the plaintiff appellant. He shall submit the record in this Court within three months. .;