S. S. BYAS, J. - (1.) THIS is a plaintiff's revision against an order of the Addl. District Judge, Baran dated 4. 8. 1984 by which the defendant's application under Section 65 of the Evidence Act was allowed and he was permitted to adduce secondary evidence to prove a mortgage.
(2.) STATED in short, the relevant facts are that the plaintiff instituted a suit for specific performance of an agreement of sale pertaining to Khasra No. 123 comprising an area of 16. 3 bighas. It was alleged that on 24. 5. 1980 the defendant entered into agreement with him to sell his aforesaid agriculture land to the plaintiff for a sum of Rs. 17,000/ -. A sum of Rs. 15,201/- was paid by the plaintiff to the defendant in cash on that every day and the remaining amount of Rs. 1,799/. was agreed to be paid at the time of the registration of the sale deed. The defendant did not turn up for execution of the sale deed. The plaintiff, therefore, filed the suit for the specific performance of the agreement of sale in the court of the Addl. District Judge, Baran. The suit was resisted by the defendant. He denied to have made any agreement of sale in favour of the plaintiff. He came out altogether with another story and alleged that he had mortgaged Khasra No, 123 with the plaintiff in samvat year 2031-32 for a sum of Rs. 14,500/-and delivered its possession on the same day to the plaintiff. It was further averred that he (defendant) had executed the mortgage deed in the Bahi of the plaintiff. The mortgage was to be redeemed on the expiry of 5 years. On the expiry of 5 years, the defendant approached the plaintiff to relieve Khasra No. 123 from the mortgage and deliver its possession back to him. The attempt proved abortive. He then submitted an application in the court of the Assistant Collector to recover possession over the aforesaid field. In order to defeat that suit pending in the court of the Assistant Collector, the plaintiff has invented and fabricated the false story of the agreement of sale. The trial court framed the necessary issues. The plaintiff adduced the evidence and his evidence was completed. The case was then fixed for the defendant's evidence. The defendant submitted an application in the trial court on 17. 2. 84 for issuing notice to the plaintiff to produce the mortgage deed alleged to have been scribed and written in his Bahi. The plaintiff denied the existence of any such document in his Bahi and categorically stated that no such document was ever scribed, written or executed by the defendant in his favour. The defendant there after submitted an application on 16. 4. 1984 in the trial court praying permission to lead secondary evidence to prove the mortgage deed alleged to have been written in the plaintiff's Bahi. The plaintiff in his reply denied the existence of any such document in his Bahi. He also raised objections that since the alleged mortgage deed was not scribed or written on the stamp paper of requisite value, no secondary evidence could be permitted to be addued to prove it in view of the provisions of the Stamp Act and the Registration Act. The ttial court heard the parties and by the impugned 0rder, allowed the defendant's application as indicated at the very outset. Aggriaeved, the plaintiff has come up in revision. Despite service of notice on the defendant, nobody appeared on his behalf. As such the revision was heard exparte against him. I have heard Mr. R. R. L. Gupta learned counsel for the petitioner and perused the impugned order. It was strenuously contended by Mr. Gupta that the court below has acted with material illegality in permitting the defendant to lead secondary evidence in proof of the alleged mortgage deed. The court below has not determined the existence of the alleged mortgage deed. The mortgage deed even according to the averments of the defendant was scribed and written in a Bahi. The document was thus unstamped and unregistered. When the original docu-ment is executed on a paper without stamps of the requisite value, no se condary evidence can be permitted to prove its execution. Permitting a. party to adduce secondary evidence in proof of an unstamped mortgage deed would defeat the provisions of the Stams Act and the Registration Act. Reliance in support of the contention was placed on Sec. 65 of the Evidence Act and Sec. 35 of the Stamp Act. Reliance was also placed on Champa Lal Vs. Panna Lal (1), Mool Chand Vs, Laxman (2), Kartar Singh Vs. Mohinder Singh (3) and Jupudi Kesava Rao Vs. Pulavarthi Venkata (4 ). I have bestowed my thoughtful consideration to the submissions made by Mr. Gupta. The contentions raised by him have considerable force. The matter may be a examined at some length. Chapter V of the Evidence Act pertains to documentary evidence and lays down the rules in respect of the proof of documents. Sec. 61 of the Evidence Act speaks that the contents of documents may be proved either by primary or by secondary evidence. Sec. 64 lays down that documents may be proved by primary evidence except in the cases mentioned therein. Sec. . 65 relates to the cases in which secondary evidence relating to documents may be given. Sec. 64 lays down the cardinal rule of evidence that the party should produce the best evid-ence to prove the contents of a document. Sec. 65 lays that where the original document is not forth-coming, secondary evidence to prove its contents may be permitted to be adduced. Sec. 65 starts with the words that the secondary evidence may be given to prove the existence condition or contents of a docum-ent. This section makes it amply clear that before secondary evidence of a document can be let in, the existence of the document should be proved. If the. Existence of the document in question has not been proved, permission to lead secondary evidence of its contents cannot be given. 1 am fortified in my view by a Division Bench decision rendered by this court in Poonamchand v. Moti Lal (5 ). Unfortunately in the instant case, the court below has not at all decided the question whether any mortgage deed existed as alleged by the defendant. A specific object was raised by the plaintiff categorically denying the existence of any mortgage deed in his Bahi. It is lamentable that despite a specific objection raised by the plaintiff about the non-existence of the mortgage deed, the Addl. District Judge did not at all deal with it. This makes the impugned order bad in law.
(3.) ADMITTEDLY, according to the defendant himself, the mortgage deed was written or scribed or executed in the Bahi of the plaintiff. It was unstamped and unregistered. The court below has also recorded a finding that the alleged mortgage deed was unstamped and unregistered. Otherwise too, a mortgage deed scribed in the Bahi in always on a non-stamped paper. The clinching issue before me is whether secondary evidence can be permitted to prove the contents of mortgage deed which has not been written or scribed on stamp papers of requisite value. Section 35 of the Stamp Act 1899 clearly lays down that no instrument chargeable with duty shall be admitted in evidence for any purpose unless such instrument is duly stamped. The proviso appended to it lays down that such an unstamped instrument may be admitted in evidence on payment of the duty and penalty as mentioned therein. Now the duty can be levied only on the original document. If the original document is not on the stamp, the duty and penalty mentioned in the proviso of Section 35 of the Act cannot be charged, collected or levied. If the document is not on stamp paper and the duty cannot be charged, collected or levied for one reason or the other, no secondary evidence can be permitted to prove its contents. The law contained in Sec. 35, of the Stamp Act forbids the letting of any secondary evidence in prooff of its contents] ;