High Court of KeralaDivision Bench2022-12-06Impugned order set aside; matter remitted to Re...

Beeran Haji v. Ali and Haris

Case / Petition Number:O.P.(RC).No.82/2017

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Muhamed Mustaque
Shoba Annamma Eapen
Judgment Date: 2022-12-06
Court Decision / Holding: The impugned order allowing marking of the photocopy is set aside and the matter is remitted back to the Rent Controller to decide afresh. If the respondent-tenant wishes to adduce evidence based on photocopies, he may do so, but the photocopies must be properly stamped and admissible; the Rent Controller should decide any stamp-duty deficiency before proceeding further. The original petition is disposed of accordingly.
Final Disposition: Impugned order set aside; matter remitted to Rent Controller for fresh consideration; petitioner disposed of as above; photocopy evidence may be admitted if properly stamped and authenticated.

Parties to the Case

Appellants / Petitioners

Beeran Haji

Respondents

Ali
Haris

Legal Representation & Advocates

Counsels for Petitioners

• Smti. Deepa Narayanan
• T. Sethumadhavan (Sr.)

Counsels for Respondents

• Sri. Jamsheed Hafiz

Case Synopsis & Summary

This High Court of Kerala rent-control proceeding arises from an eviction petition (OP (RC) No. 82/2017) filed by Beeran Haji (landlord) against Ali and Haris (tenants). During trial, the tenant sought to cross-examine the landlord using photocopies of the rent agreement and to mark those copies as evidence. The landlord objected, but the objection was overruled by a speaking order. The case centers on two issues: (i) the admissibility and marking of photocopies of the rent deed as evidence, and (ii) insufficiency of stamp duty on the instrument. The landlord contends that the photocopies are not admissible as primary evidence and that the original lease deed is at issue; the tenant argues the photocopies can be admitted as secondary evidence if properly authenticated and stamped. The court references Sections 65 and 66 of the Indian Evidence Act to delimit secondary evidence and the obligation to adduce secondary evidence following due process. It also cites the Kerala Stamp Act, Section 34, and the necessity that instruments be duly stamped to be admissible. The judgment discusses the principle that photocopies presented as secondary evidence cannot bypass stamp duty requirements and that improper stamping necessitates impounding or appropriate procedure. Ultimately, the court remits the matter to the Rent Controller to decide afresh, permitting the respondent tenant to adduce evidence based on photocopies if properly stamped and authenticated, and sets aside the impugned order. The petition is disposed of accordingly.

Provisions of Law Cited

Indian Evidence Act, Section 65Indian Evidence Act, Section 66Kerala Stamp Act, Section 34Constitution of India, Article 227

Legal Doctrines & Maxims

Admissibility of secondary evidence requires compliance with Sections 65 and 66 of the Indian Evidence Act.
Photocopies cannot be admitted as instruments unless properly stamped; stamping deficiencies must be addressed under the Kerala Stamp Act.
Instruments that are not duly stamped are inadmissible; proper stamping is a precondition for evidentiary admissibility.
A photocopy used as secondary evidence cannot bypass stamping requirements or procedural safeguards for evidence admissibility.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner-landlord contended that marking of photocopies of the rent agreement as evidence should be refused or strictly governed by the statutory provisions. While objections to admissibility of photocopies and the adequacy of stamp duty were raised, the core issue was whether photocopies can be admitted as secondary evidence and whether the Rent Controller could allow cross-examination using such copies without complying with Section 66 of the Indian Evidence Act and the stamping requirements under the Kerala Stamp Act. The landlord argued for strict adherence to admissibility criteria and procedural steps before admitting secondary evidence.

Contentions of Respondents

The tenants argued that photocopies of the rent agreement can be used as secondary evidence if properly stamped and admissible, and that the cross-examination based on those photocopies should not be barred. They urged the application of Sections 65 and 66 of the Indian Evidence Act and the Stamp Act provisions to allow marking and consideration of photocopies consistent with due process, subject to proper stamping and impounding procedures if necessary.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Hariom Agrawal v. Prakash Chand Malviya	2007 (8) SCC 514	Positive	Cited to support that a photocopy presented as secondary evidence cannot be treated as an instrument for stamping purposes and that proper stamping must be ensured; impounding procedures, if applicable, must follow the law.
Bipin Shantilal Panchal v. State of Gujarat and Another	(2001) 3 SCC 1	Positive	Cited to emphasize that where a document’s stamp-duty is deficient, the court must decide that objection before further proceedings, preserving due process in evidentiary admission.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN TUESDAY, THE 6[TH] DAY OF DECEMBER 2022 / 15TH AGRAHAYANA,** ## **1944** **OP (RC) NO. 82 OF 2017** **AGAINST THE JUDGMENT IN RCP 28/2015 OF SUB COURT, TIRUR PETITIONER/S:** BEERAN HAJI AGED 68 YEARS S/O.MUIDEEN, AGED 68 YEARS, VELLARIKKAT HOUSE, THALAKKAD AMSOM DESOM, TIRUR TALUK. BY ADVS. SMT.DEEPA NARAYANAN T.SETHUMADHAVAN (SR.)(S-310) ## **RESPONDENT/S:** 1 ALI AGED 62 YEARS, MALABAR FURNITURE, SEENATH COMPLEX, NEAR VISWAS THEATRE, B.P ANGADI, TIRUR. 2 HARIS S/O.ALI, AGED 28 YEARS, KUNDANI HOUSE, THALAKKAD AMSOM DESOM, POLISSERY, TIRUR. BY ADV SRI.JAMSHEED HAFIZ **THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 06.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **“C.R.”** ## **A.MUHAMED MUSTAQUE** ## **&** ## **SHOBA ANNAMMA EAPEN, JJ.** ------------------------------------------ ## **O.P.(RC).No.82/2017** ------------------------------------------ ## **J U D G M E N T** ## **Dated this the 6th day of December, 2022** ## A.Muhamed Mustaque, J. In a rent control petition for eviction, during trial, an attempt was made by the tenant to cross examine the landlord with reference to the photocopies of the rent agreement and to mark the same. The landlord raised an objection but that has been overruled by a speaking order. This order is in question by way of a petition under Article ## **O.P.(RC).No.82/2017** ## -:2:- 227 of the Constitution. There are two issues involved in this case, namely, (i) marking of the photocopy and, (ii) insufficiency of stamp duty borne on the instrument. 2. The dispute as above has arisen in the context of the landlord complaining that the tenant is in occupation of 11 rooms belonging to the landlord. The tenant contended that he is occupying only 7 rooms, as a tenant. The landlord claims that the rental arrangement was an oral lease. The tenant claims that the rental agreement was based on a written lease deed and the original of written deed is with the landlord. The landlord denied existence of the original lease deed. 3. The photocopy is in the nature of secondary evidence. Section 65 of the Indian Evidence Act states the cases in which secondary evidence relating to documents may be given. The original lease deed, according to the tenant, is ## **O.P.(RC).No.82/2017** ## -:3:- in the possession of the landlord. The landlord denies the same. Section 66 of the Evidence Act says about rules of serving notice to adduce secondary evidence alleged to be in possession of the party with whom the original is kept. Without following the procedure under Section 66, the secondary evidence of a document, the original of which is with another party, cannot be adduced. There is also serious dispute as to the stamp duty borne on the instrument. No doubt, insufficiently stamped photocopy of a document cannot be impounded, as it cannot be treated as an instrument for the purpose of stamp duty. However, when photocopy is sought to be received as a secondary evidence, the document must satisfy the condition for admissibility in evidence. Under the Kerala Stamp Act, 1959 an instrument not duly stamped is inadmissible in evidence. Section 34 of the Kerala Stamp Act prohibits any person/ authority to receive evidence of instrument not ## **O.P.(RC).No.82/2017** ## -:4:- duly stamped. 4. One of the conditions to receive an instrument in evidence is, it must be duly stamped in accordance with law. If the original of an instrument produced is not duly stamped, the Court will have to proceed to impound the instrument in accordance with law. When a photocopy is produced, it cannot be _per se_ called as an instrument. Therefore, even if the stamp appearing in the photocopy of the instrument is insufficient, the Court cannot order impounding of the instrument. {See **Hariom Agrawal v. Prakash** **Chand Malviya [2007 (8) SCC** 514]}. However, in the guise of a photocopy and adducing it as a secondary evidence, the party cannot bypass payment of stamp duty on such instrument. This would defeat the very purpose of Section 34 of the Kerala Stamp Act. The admissibility of the instrument in evidence must satisfy the condition that the instrument bears a stamp of proper ## **O.P.(RC).No.82/2017** -:5:- amount. In view of the law that, in order to admit a document as a primary evidence or in secondary evidence, it must bear a stamp of proper amount, the photocopy cannot be admitted without proof of proper stamp duty borne on the photocopy. If photocopy is sought to be relied as a secondary evidence and the Court is of the opinion that the stamp duty borne on the photocopy is insufficient, the Court will have to follow the procedure for impounding the instrument. 5. The Stamp Act completely shuts down adducing evidence of any nature of an instrument which is insufficiently stamped. **==> picture [392 x 13] intentionally omitted <==** photocopy without following the procedure as contemplated under Section 66 of the Indian Evidence Act, if applicable and also without ensuring whether photocopy is properly stamped or not. The Rent Controller has to take a decision **O.P.(RC).No.82/2017** ## -:6:- in this matter as above while allowing marking of the photocopy in evidence. If the objection relates to deficiency of stamp duty of a document, the Court has to decide the objection before proceeding further. {See **Bipin Shantilal Panchal v. State of Gujarat and Another [(2001) 3 SCC 1]** } **.** Accordingly, the impugned order is set aside and the matter is remitted back to the Rent Controller to consider the matter afresh. If the respondenttenant wants to adduce evidence based on photocopy, he shall do so. The impugned order is set aside. The original petition is disposed of as above. **Sd/** **A.MUHAMED MUSTAQUE, JUDGE Sd/-** **SHOBA ANNAMMA EAPEN, JUDGE** ## **ms** **O.P.(RC).No.82/2017** ## -:7:- ## **APPENDIX OF OP (RC) 82/2017** PETITIONER EXHIBITS - EXHIBIT P1. COPY OF THE PETITION, RCP NO.28/2015, FILED BY THE PETITIONER BEFORE THE HONOURABLE RENT CONTROLLER OF TIRUR DATED 25.3.15. - EXHIBIT P2. COPY OF THE OBJECTION FILED BY THE IST RESPONDENT IN RCP 28/15 PENDING BEFORE THE HONOURABLE RENT CONTROLLER OF TRIRU DATED 6.4.16. - EXHIBIT P3. COPY OF THE OBJECTION FILED BY THE 2ND RESPONDENT N RCP 28/15 PENDING BEFORE - THE HONOURABLE RENT CONTROLLER OF TIRUR DATED NOVEMBER 2016. - EXHIBIT P4. COPY OF THE AFFIDAVIT IN IA 1847/2016 IN RCP 28/2015, FILED BY THE PETITIONER BEFORE THE HONOURABLE RENT CONTROLLER OF TIRUR DATED SEPTEMBER 2016. - EXHIBIT P5. COPY OF HTE OBJECTION FILED BY THE PETITIONER IN IA 1847/2016 IN RCP - 28/2015 FILED BY THE PETITIONER BEFORE - THE HONOURABLE RENT CONTROLLER OF TIRUR DATED 21.09.16. - EXHIBIT P6. COPY OF THE AFFIDAVIT IN IA 688/2017 IN RCP 28/2015 FILED BY THE PETITIONER BEFORE THE HONOURABLE RENT CONTROLLER OF TIRUR DATED 10.3.17. - EXHIBIT P7. COPY OF THE ORDER DATED 28.3.17 IN RCP 28/15 FILED BY THE PETITIONER BEFORE THE HONOURABLE RENT CONTROLLER OF TIRUR DATED 10.3.17. - Exhibit P8 TRUE COPY OF THE PHOTOCOPY OF THE RENT AGREEMENT DATED 1.1.2004 - Exhibit P9 TRUE COPY OF THE PHOTOCOPY OF THE RENT **O.P.(RC).No.82/2017** -:8:- AGREEMENT DATED 21.5.2008 Exhibit P10 TRUE COPY OF THE PHOTOCOPY OF THE RENT AGREEMENT DATED 1.2.2009 Exhibit P11 TRUE COPY OF THE PHOTOCOPY OF THE RENT AGREEMENT DATED 20.3.2012 Exhibit P12 TRUE COPY OF THE PHOTOCOPY OF THE RENT AGREEMENT DATED 20.3.2012