J.P. Jain, J.
1. This is a plaintiff's appeal and it arises in the following circumstances:
2. Plaintiff Smt. Mohani Bai obtained a decree against one Aildas for ejectment from the house hearing No. AMC. 6/428 Old & 7/414 New on the ground of personal necesslty. Appeal by Alidas failed. His second appeal in the High Court was also dismissed on 7-5-68. During the pendency of the appeals the execution was stayed at the instance of Aildas. In execution Mohini Bai obtained an order of forcible dispossession on 8.5.68 Kishan Chand respondent, who is the nephew of Aildas, resisted the execution of the recovery of possession and maintained that be was the tenant of Mohini Bai as she has admitted him as the tenant on and from 7.5.68. The matter had gone upto the High Court and as a result of the litigation Smt. Mohini Bai have to file a fresh suit for recovery of possession of the suit property, on the basis of title. The Civil Suit was registered as 124/1970.
3. Kishan Chand in his written statement inter alia alleged that he was admitted as a tenant vide a lease deed dated 7.5.68. Mohini Bai was Called upon to produce the lease deed. She refused to have one and therefore could not produce the alleged document evidencing the tenancy of Kishan Cnand. A copy of the said document was filed in execution case No. 38/67, A certified copy of this document was placed on record of the suit. The learned trial Judge held that document to be inadmissible, and after trial of the case decreed the plaintiff's suit by his order dated 29.7.72. The order was challenged in appeal by Kishan Chand. The learned Additional District Judge, Ajmer dealt with this appeal. The only point that was argued before on behalf of Kishan Chand related to issue No. 2. Issue No. 2 reads as follows:
Has the plaintiff accepted the defendant as a tenant in respect of the suit property at the rate of Rs. 30/- per month on 7.5.68 as alleged by the defendant,
4. It was argued on behalf of Kishan Chand that he wanted to produce a carbon copy of the lease deed executed by the plaintiff Mohini Bai and the defendant Kishan Chand but the trial Court did not permit him to do so. The trial Court was wrong in disallowing the production of the document in holding that it was insufficiently stamped and not registered. The learned Judge in appeal, in the first instance, held that the carbon copy of the lease deed, which was sought to be produced by the defendant Kishan Chand, was not a secondary evidence but primary evidence. He was also of the opinion that it was a counter part of the main document and each document was an original. He held that the order of the learned trial Judge in not allowing the the defendant to produce the document was erroneous, He accordingly allowed the appeal, set aside the judgment and decree passed by the trial Court and remanded the case hack for a fresh decision after accepting the document on record. It is this order which has been challenged by Smt. Mohini under Order 41 Rule 1 Clause (u), Civil P.C.
5. Mr. Jindal appearing on behalf of the appellant strenuously urged that by no stretch of imagination a carbon copy of a document can be treated to be an original. Nor can that be termed as a counter part of the main document. My attention has been drawn to the document in question which has been placed on record. This is a certified copy of a copy from the execution file No. 38/67. The defendant's application dated 22.12.71 has been referred to in regard. This application is also accompanied by an affidavit of Kishan Chand himself. In the affidavit it has been stated that he had produced a copy of the rent note dated 7.5.68 executed by him in favour of the plaintiff for the suit premises in execution case No. 38/67 of the Court of Munsiff District Ajmer. It was further averred that it has become necessary that the record of the execution case No. 38/67 of the Court of Munsiff District Ajmer was containing duplicate of the rent note may be got produced According to this he himself called the document in the execution case as a copy the document and not as a original or counter part. Section 62 of the Evidence Act defines primary evidence and it reads follows:
62. Primary evidence means the document produced for the inspection of the Court.
Explanation 1 - Where a document is executed in several parts, each part is primary evidence of the document Where a document is executed in counterpart, each counterpart being evidence as against the parties executing it.
Explanation 2 - Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but where they are all copies of a common original, they are not primary evidence of the contents of the original.
6. It has never been the case of the defendant that a lease deed was prepared in duplicate and each was signed by the parties, one to be retained by each. As pointed out from the application and the affidavit it is abundantly clear that he called the document, which he placed on record of the execution case, as a copy. He somehow managed to obtain a certified copy of that copy and placed on the record of the present suit. This document is, therefore, not admissible.
7. Now adverting to the document which finds place in the execution case No. 38/67 itself I sent for the file and I have examined the document myself. From the document it is crystal clear that it is not an original document. It is no doubt that it ia a carbon copy but it appears that it has been copied from some other document. The original, if at all it existed was on a stamp paper of Rs. 1/- No. 658. In this view of the matter the contention of the defendant, which I bold as only an after thought, cannot be taken to be correct that that document is an original document. I am unable to accept the alternative contention that it is a counter part of an original document. In my opinion the learned lower appellate court was in error to bold the carbon copy as having been made by uniform process. Reference may be made T. Sivasankaram Pillai v. Agali Narayam Rao AIR 1937 Mad. 807 where it was held that a carbon copy could not be termed as prepared by one uniform basis.
8. That apart, the alleged lease deed appears to have been executed on a stamp of Rs. 1/-. The agreed rent is Rs. 30/- per month. According to Article 36 read with Article 15 of the Rajasthan Stamp Act a lease deed of this kind must have been on a non-judicial stamp of Rs. 4,50 paise. The lease deed having been executed on insufficient stamp paper was not admissible in evidence. As such the secondary evidence of such document Which is either unstamped or insufficiently stamped is not admissible Reference may be made to Champa Lal v. Panna Lal 1951 RLW 258, and Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao and Ors. AIR 1971 SC 1070, it has been laid down that the secondary evidence of a document which is unstamped or insufficiently stamped is not admissible. It has been observed that there is no scope for inclusion of a copy of the document as an instrument for the purpose to the Stamp Act. If the real document is not valid in law, its secondary evidence can not be admitted. In this view of the matter the order passed by the learned lower appellate Court cannot be sustained. The document placed on record cannot be admitted in evidence. The learned appellate Court has not given its decision on merits as such I have no alternative but to send the case back to him to decide the case on merits.
9. In the result, the appeal is allowed, the order passed by him on 31.10.1973 is set aside. The appeal will go back to him for decision on merits. The costs of this appeal will abide the event.