1. The revision petitioner assails the order dated 1-8-2001 passed by the learned Junior Civil Judge, Medak, in OS No. 8 of 1998.

2. When a xerox copy of the agreement of sale dated 24-4-1997 was sought to be introduced in evidence by the plaintiff, while leading secondary evidence through PW4 on an objection taken by the adversary under the impugned order the learned Judge directed the document to be impounded under Section 35 of the Indian Stamp Act ('the Act' for brevity) on the premise that the document should be stamped as if it were a sale inasmuch as the possession was delivered under the document in view of Article 47-A of Schedule I-A of the said Act. Earlier, it appears, in IA No. 40 of 2001 the plaintiff-revision petitioner was permitted to lead secondary evidence by producing xerox copy of the original agreement of sale dated 24-4-1997. It is discernible from the order that the original agreement itself was executed on a plain paper and since it was lost, the plaintiff sought to adduce secondary evidence as aforesaid. When the plaintiff was permitted to adduce secondary evidence under an order dated 8-4-2001 in IA No. 40 of 2001 by the learned Junior Civil Judge, Medak, that order was assailed before this Court in Civil Revision Petition No. 2603 of 2001, dated 21-6-2001. A learned single Judge of this Court held that the finding recorded by the trial Judge was perfectly in accordance with the law and based upon the material available on record and, therefore, there was nothing to interfere with the said order. However, the question as regards the payment of stamp duty and penalty and inadmissibilily of the document in question was left open. As aforesaid, pursuant to the said order, when the xerox copy of the document was sought to be introduced, an objection as regards the stamp duty and penalty was raised on the premise that the original itself was executed on a plain paper and, therefore, it required to be stamped as it would take the place of the primary evidence.

3. It was sought to be contended on the side of the plaintiff-revision petitioner that the document did not require to be stamped since it was only secondary evidence. The nomenclature of the document in question, as could be seen from the order, is 'conditional agreement'. Having regard to the recitals contained in the document in question, the learned Judge was of the view that inasmuch as the possession was delivered under the document, it should be construed in accordance with Article 47-A of Schedule I-A of the Act and accordingly it had to be impounded. The objection on the side of the defendants in the suit was, therefore, sustained under the impugned order.

4. The undisputed fact seems to be that the original agreement of sale dated 24-4-1997 was executed on a plain paper. Therefore, it was unstamped and the said document was lost. The xerox copy of the said document has been permitted to be introduced by leading secondary evidence by the trial Court which has been subsequently upheld by this Court, as aforesaid.

5. In view of the above facts, two questions would fall for consideration, namely, (1) whether the copy of the document, which was unstamped, is required to be stamped ? and (2) what is the evidentiary value of such a document when original itself was an unstamped document ?

6. Section 35 of the Act is apposite here to be considered since it is the relevant provision, which prohibits the reception of a document, which is not duly stamped and the same insofar as is relevant for the present purposes may be extracted hereunder thus :--

"35. Instruments not duly stamped inadmissible in evidence etc :--No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped :

Provided that-

(a) x x x x x

(b) x x x x x

(c) x x x x x

(d) x x x x x

(e) x x x x x"

It is also expedient to consider Section 36 of the Act, which reads thus :

"Admission of instrument where not to be questioned :--Where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground thai the instrument has not been duly stamped."

7. The expression 'instrument' envisaged in both these sections has been defined under Section 2(14) of the Act. It is germane in the context to consider and the same may be excerpted hereunder thus:--

'Instrument' includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded.

8. A perusal of Section 35 shows that the said section is in two parts. The first limb pertains to the reception of the document in evidence when the document is not duly stamped. The second limb, however, pertains to acting upon the said document. The bar contained in Section 35 of the Act is an absolute bar and it is two fold - firstly it prohibits the reception of an instrument which has not been duly stamped and secondly it inhibits the authority which is expected to receive the same to act upon the same. Section 36 of the Act, however, reads that when an instrument has been admitted in evidence without taking any objection in accordance with Section 35, such admission shall not be called in question at any stage of the suit or proceeding on the ground that the instrument has not been duly stamped. A combined reading of both the sections would show that what was not admissible under the mandatory provisions of section 35 when admitted inadvertently in evidence without taking any objection in that regard, such admission shall not be called in question at any stage of the suit or proceeding subsequently. Therefore, what Section 36 speaks of, in my considered view, is in regard to the original document itself. A combined reading of Sections 35 and 36 of the Act and the definition of 'instrument' as enjoined under Section 2(14) of the Act would leave no room for any doubt that what is required to be stamped is the original instrument itself and the Act has not envisaged a copy of the original for the purpose of Stamp Act. A copy of the document cannot be called as an instrument and, therefore, it is not required to be stamped.

9. Apropos the second point obviously in this case the original agreement of sale, as discussed by me supra, itself has not been duly stamped having been written on a plain papur. When the original instrument which is required to be stamped, in view of the peremptory language in Section 35 of the Act, shall not be allowed to be introduced in evidence when it is not duly stamped and a copy of it need not be stamped and cannot be acted upon in view of the bar contained in the second limb of Section 35 of the Act, allowing a copy of the instrument to be introduced as secondary evidence is nothing but circumventing the provisions of section 35 of the Act. If a xerox copy were to be permitted, it would certainly circumvent the mandatory provisions of section 35 of the Act. Therefore, notwithstanding the legal position that a copy of the instrument need not be stamped, the same cannot be permitted to be introduced by means of secondary evidence when the original itself is not duly stamped inasmuch as such a document cannot be acted upon.

10. The legal position on the point is no more res integra and has been squarely covered by a judgment of the Apex Court in Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao, . Quoting with approval the judgment of the Privy Council in Raja of Bobbili v. Inuganti China Sitaramasami Garu, (1900) 1LR 23 Mad. 49, the Apex Court held in paras 13 and 14 thus :

"The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped or insufficiently stamped, would be tantamount to the document being acted upon by the person having by law or authority to receive evidence. Proviso (a) is only applicable when the original instrument is actually before the Court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document. Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by Section 63 of the Indian Evidence Act would not fulfil the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself. Section 35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document which is an instalment for the purpose of Section 35. 'Instrument' is defined in Section 2(14) as including every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded. There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act.

If Section 35 only deals with original instruments and not copies, Section 36 cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit. The words 'an instrument' in Section 36 must have the same meaning as that in Section 35. The Legislature only relented from the strict provisions of section 35 in cases where the original instrument was admitted in evidence without objection at the initial stage of a suit or proceeding."

11. Oblivious of the legal position hereinabove discussed, the Court below has allowed the parly to adduce secondary evidence. The order of this Court in Civil Revision Petition No. 2603 of 2001 dated 21-6-2001 passed by a learned single Judge of this Court becomes per incuriam.

12. Under the impugned order, the learned Junior Civil Judge proceeded to construe the nature of the document and on the assumption that the possession was delivered under the document, which in fact has not been so recited, he was of the view that in view of Article 47-A of Schedule I-A of the Act it requires to be stamped as if it were a sale. That question will not arise for consideration in view of my above discussion. If the document is required to be stamped duly, then the question as to what is the nature of the instrument and what amount of stamp duty to be paid thereon would arise next. A perusal of the document clearly shows that there has been no recital contained therein whereunder the property is said to have been delivered. The two conditions set forth at the end of the document incorporating the penal clauses shall have to be construed in the context as besides forfeiting the amount of Rs. 10,000/- paid as advance the promisee should leave the rights over the house. Those clauses have nothing to do with delivery of possession.

Anyway, that is not very much germane for consideration in view of the legal position stated by me herein above. Therefore, the impugned order directing the party to pay the requisite stamp duty under Article 47-A of Schedule I-A of the Act and the necessary penalty is hereby set aside. Consequently, the civil revision petition is allowed for the reasons mentioned above.