Facts
The petitioners filed a suit for specific performance based on an agreement to sell dated 12.03.2003
Source reference: p. 4They did not possess the original document and sought to lead secondary evidence using a photocopy, alleging the original was with the Electricity Department
Source reference: p. 5The Trial Court rejected the application for secondary evidence on 11.02.2025, holding the document was insufficiently stamped and inadmissible
Source reference: p. 4The petitioners then filed an application under Sections 35 and 37 of the Rajasthan Stamp Act, 1998, to impound the photocopy and send it for stamp duty payment
Source reference: p. 4The Trial Court dismissed this on 26.08.2025, ruling that a photocopy cannot be impounded in the absence of the original
Source reference: p. 5The petitioners challenged both orders via writ petitions under Article 227
Source reference: p. 4-5Issues
1. Whether a photocopy of an instrument that is insufficiently stamped can be impounded under Section 35 of the Rajasthan Stamp Act, 1998
Source reference: p. 8, para. 162. Whether secondary evidence can be permitted in respect of a document that is not sufficiently stamped and where foundational requirements for secondary evidence are not met
Source reference: p. 9, para. 16Law Applied
Section 35 of the Rajasthan Stamp Act, 1998, which mandates that an instrument chargeable with duty shall not be admitted in evidence for any purpose unless duly stamped
Source reference: p. 9, para. 17Supreme Court precedent in Hariom Agrawal v. Prakash Chand Malviya, which established that the bar under Section 35 is absolute and a photocopy of an original instrument cannot be validated by impounding
Source reference: p. 10, para. 20Section 65 of the Indian Evidence Act, 1872, and the principles in Tharammel Peethambaran v. T. Ushakrishnan, which require a factual foundation proving the existence, execution, and valid reasons for the non-production of the original document
Source reference: p. 11-12, para. 22-24Reasoning
The court reasoned that the admissibility of a document is a condition precedent to its mode of proof; since the original agreement was insufficiently stamped, it was inadmissible, and such a defect cannot be bypassed by introducing secondary evidence
Source reference: p. 9, para. 19The court noted that what cannot be done directly cannot be done indirectly
Source reference: p. 9, para. 19The court found that the petitioners failed to establish the foundational facts required under Section 65 of the Evidence Act, such as the execution of the original or a credible explanation for its unavailability
Source reference: p. 11, para. 22-23The court held that the power to "impound" applies only to an "instrument" (the original), and a photocopy does not meet this legal description
Source reference: p. 12, para. 23; p. 15, para. 26Obtaining a copy via the RTI Act does not automatically grant it admissibility if the original itself was never proved to exists or be validly executed
Source reference: p. 14, para. 25Holding
The court held that an insufficiently stamped document is inadmissible even in the form of secondary evidence, and a photocopy cannot be impounded under Section 35 of the Act of 1998
The High Court upheld the Trial Court’s orders dated 11.02.2025 and 26.08.2025, finding no jurisdictional error or perversity. Both writ petitions were dismissed
Source reference: p. 15, para. 28Original Court PDF
KAMLESH W/O TEKCHANDvsPAPPU SAINI SON OF DEDARAM SAINI
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