- (1.) Crucial legal question which arises for consideration in this revision petition, is, whether carbon copy of a document is not admissible as primary evidence in view of Ss. 35 and 26 of the Indian Stamp Act, 1899.
(2.) This question emerges in the following circumstances :- (i) Plaintiff-non-petitioner (for short plaintiff) instituted a suit against the defendant petitioners (for short defendants) in the trial Court for the recovery of possession of house in question making averments to the effect that the plaintiff entered into an agreement of sale for the said house in favour of the defendants and actual physical possession of the house was given by the plaintiff to the defendants and certain amount was received by him as part performance towards the payment of the sale consideration. But as the defendants have failed to comply with the terms and conditions of the agreement it has become void and the plaintiff is entitled to possess the said house with certain other reliefs relating to mesne profits etc. (ii) In the written statement, the defendants made specific denial of the facts pleaded in plaint and pleaded that they were ready and willing to perform their part. By way of filing counter claim, the defendants prayed for passing a decree for specific performance in their favour. (iii) The trial Court framed the issues and case was posted for recording the evidence of the plaintiff. (iv) On November 18, 1995 when recording of statement of plaintiff was in progress, the counsel for the plaintiff intended to prove a carbon copy of a document dated 25th July, 1987. The counsel for the defendants raised objection that the said document was inadmissible in evidence as it did not bear any stamp duty required to be paid under the Indian Stamp Act. The trial Court on the objection being raised deferred the recording of the statement of the plaintiff till the objection is decided and the case was posted for hearing the arguments on the question of the admissibility of the said document. (v) The trial Court vide its order dated 12-71996 observed as under : "So the intention as appears from the document regarding the nature of document is very very clear. To me when this is a position the document is admissible under S. 62, Indian Evidence Act as original and primary evidence. The long arguments advanced by the learned counsel for defendants go on merit of the case and for the limited purpose of admissibility cannot be taken into consideration at this stage. Of course when case will be argued finally, then their arguments will be taken into account. Learned counsel for the defendants himself admits this position. Hence the document is admissible as primary evidence. Now put up for recording the statement of plaintiff on August 13, 1996." (vi) Against this order of the trial Court action for filing the revision has been resorted to.
(3.) I have given my anxious and thoughtful consideration to the rival contentions and carefully perused the impugned order.;