Case Note & Summary
The dispute arose from Regular Civil Suit No.77 of 2012 pending before the Civil Judge, Senior Division, Ambajogai, where the respondents/plaintiffs sought declarations that the petitioners/defendants were not licensees, that the leave and license agreement had ended, and that the agreement dated 03.10.1972/07.10.1972 was canceled as non est, along with removal of temporary structure and delivery of possession. The plaintiffs relied on a photostat copy of a leave and license agreement dated 15.10.1972, alleging the original was lost. The plaintiffs first sought permission to lead secondary evidence regarding this document through Exhibit-44; the trial court rejected that application on 27.07.2017 on grounds including that the agreement was inadequately stamped and a photostat copy could not be impounded, relying on Hariom Agrawal v. Prakash Chand Malviya and Smt. J. Yashoda v. Smt. K. Shobha Rani. A writ petition against that rejection, Writ Petition No.2481 of 2018, was withdrawn on 02.01.2020. Subsequently, the plaintiffs filed Exhibit-162 praying for impounding of the photostat copy. The trial court, relying on M. Chandra v. M. Thangamuthu, allowed the application on 03.08.2024, holding that plaintiffs were entitled to secondary evidence and impounding was necessary. The petitioners challenged that order in the present writ petition. Legal issues before the High Court included whether a photostat copy of an inadequately stamped document is an 'instrument' under the Maharashtra Stamp Act, 1958 and the Indian Stamp Act, 1899; whether such a copy can be impounded under Section 33; whether secondary evidence of an unstamped original can be admitted by paying duty and penalty on a copy; and whether the subsequent application was barred by res judicata after the earlier rejection and withdrawal. Petitioners argued that photostat copies cannot be impounded and that earlier rejection and withdrawal precluded a fresh application; they relied on Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao, Hariom Agrawal, and other decisions. Respondents contended that res judicata did not apply because the question of impounding was not directly and substantially in issue in the earlier application, and that the proviso to Section 3 of the Maharashtra Stamp Act as amended in 1998 permitted stamp duty on copies, unlike the Indian Stamp Act and Madhya Pradesh Stamp Act. The court examined the definitions of 'instrument' under Section 2(l) of the Maharashtra Stamp Act and Section 2(14) of the Indian Stamp Act, noting they are identically worded, and observed that judicial pronouncements uniformly hold that a photostat copy does not create or record rights or liabilities and thus is not an instrument. It noted that Section 33 of both Acts provides for impounding of instruments, not copies, and that Section 34 of the Maharashtra Stamp Act and Section 35 of the Indian Stamp Act bar admission of unstamped instruments, with the proviso applying only to original instruments. The court quoted from Jupudi Kesava Rao, which held that secondary evidence of an unstamped instrument is barred and that the proviso cannot be used for a copy, and noted similar view in Hariom Agrawal. The provided judgment excerpt ended during the discussion of the Madhya Pradesh Stamp Act's Section 48B and did not include the final operative order. Thus, the final decision and relief granted were not available in the provided text.
Headnote
A) Stamp Law - Definition of Instrument - Interpretation of 'instrument' under Section 2(l) Maharashtra Stamp Act, 1958 and Section 2(14) Indian Stamp Act, 1899 - A photostat copy of an instrument does not create, transfer, limit, extend, extinguish or record any right or liability by itself and therefore is not an 'instrument' - Maharashtra Stamp Act, 1958, Sections 2(l), 33, 34; Indian Stamp Act, 1899, Sections 2(14), 33, 35 - Trial court had allowed impounding of photostat copy of leave and license agreement; court examined statutory definitions and precedents and reiterated the settled principle that copies cannot be treated as instruments. Held that a photostat copy cannot be impounded under Section 33 as it is not an instrument (Paras 6-10). B) Stamp Law - Impounding and Secondary Evidence - Bar on secondary evidence of unstamped instrument unless original before court and duty/penalty paid - Maharashtra Stamp Act, 1958, Section 34; Indian Stamp Act, 1899, Sections 35 and 36; Indian Evidence Act, 1872, Sections 63 and 65 - Court quoted Jupudi Kesava Rao and Hariom Agrawal to hold that Section 35 bars secondary evidence of inadequately stamped instruments and the proviso applies only when the original is actually before the court; secondary evidence by way of copy does not fulfill requirements. Held that deficiency cannot be made up on a copy to admit secondary evidence (Paras 11-12). C) Civil Procedure - Res Judicata / Constructive Res Judicata and Maintainability of Successive Applications - Preclusion by earlier rejection and withdrawal of application for secondary evidence - Code of Civil Procedure, 1908, Section 11 (principle of res judicata) - Petitioners contended earlier rejection of Exhibit-44 and withdrawal of Writ Petition No.2481 of 2018 barred subsequent application for impounding; respondents countered that question of impounding was not directly and substantially in issue earlier. The court noted rival submissions but final finding was not included in the provided excerpt. Held not determined (Paras 4-5). D) Stamp Law - Charging Provision and Amendment - Effect of proviso to Section 3 of Maharashtra Stamp Act, 1958 inserted w.e.f. 01.05.1998 allowing duty on copies - Maharashtra Stamp Act, 1958, Sections 3 and 34 proviso clause (e) - Respondents argued that the 1998 amendment to Section 3 permits stamp duty on a copy and therefore impounding of photostat copy is permissible; petitioners relied on judgments under Indian Stamp Act and Madhya Pradesh Stamp Act which lack such a provision. The court was analyzing this difference in statutory schemes when the excerpt ended; no final holding included. Held not determined (Para 5).
Issue of Consideration
Whether a photostat copy of an inadequately stamped leave and license agreement can be impounded under the Maharashtra Stamp Act, 1958; Whether the plaintiffs' application for impounding the photostat copy was maintainable after withdrawal of earlier application for secondary evidence and rejection of that application; Whether secondary evidence of original unstamped instrument can be admitted by making up stamp duty and penalty on copy.
Law Points
- Photostat copy of an instrument does not constitute an 'instrument' under Section 2(l) of the Maharashtra Stamp Act
- 1958 or Section 2(14) of the Indian Stamp Act
- 1899
- A copy of an original instrument cannot be impounded under Section 33 of the Maharashtra Stamp Act
- 1958
- Secondary evidence of an unstamped or insufficiently stamped instrument is not permissible unless the original instrument is before the court and duty and penalty are paid
- Proviso to Section 34 of the Maharashtra Stamp Act applies only to original instruments
- Judicial precedents in Jupudi Kesava Rao and Hariom Agrawal bar secondary evidence of unstamped documents
