‘What cannot be done directly cannot be done indirectly’: Rajasthan HC bars photocopy of unstamped sale agreement as secondary evidence

Jaipur: The Rajasthan High Court has ruled that a photocopy of an insufficiently stamped agreement cannot be impounded by a civil court or led in secondary evidence. Justice Bipin Gupta gave this ruling on 10 April 2026 while dismissing two connected writ petitions filed by the legal heirs of one Tekchand against Pappu Saini and others.

The dispute reached the High Court from a civil suit for specific performance pending before the Civil Judge, Virat Nagar, Jaipur (Kotputli-Behror). In that suit, Kamlesh and her two children claimed that Tekchand had entered into an agreement to sell dated 12 March 2003 with the respondents. They did not possess the original document. What they had was a photocopy which, they said, was insufficiently stamped.

The plaintiffs first asked the trial court to let them lead secondary evidence of the photocopy. The trial court rejected that plea on 11 February 2025, holding that a document which is not properly stamped is not admissible as evidence in the first place. The plaintiffs then filed a second application to impound the photocopy and send it to the Collector for payment of stamp duty and penalty. On 26 August 2025, the trial court rejected that plea too, saying only the original of a document can be impounded.

Both orders were challenged before the High Court by way of writ petitions under Article 227 of the Constitution, which allows High Courts to correct serious errors by lower courts.

Counsel for the plaintiffs submitted that the original was not with them but with the Electricity Department. The photocopy, he said, had been obtained from the department under the Right to Information Act, 2005. Since the existence of the agreement had been established, he argued, the plaintiffs should be allowed to lead the photocopy as secondary evidence. He further submitted that once the existence of the document was proved, the photocopy itself could be impounded and, upon payment of stamp duty and penalty, rendered admissible. He relied on the Supreme Court’s ruling in Ferani Hotels Pvt. Ltd. and on judgments of the Telangana and Andhra Pradesh High Courts.

Senior Advocate Z.A. Naqvi, appearing for the respondents, contended that the agreement to sell was forged and fabricated and was never executed. Even if the plaintiffs believed the original was with the Electricity Department, he said, they could obtain a certified copy through the RTI route. But such a copy, he argued, would be admissible only if reproduced by a mechanical process directly from the original. A photocopy of a photocopy could never qualify as secondary evidence. He also submitted that the power to impound under the Stamp Act applies only to an original instrument and not to photocopies. He relied on the Supreme Court’s ruling in Tharammel Peethambaran (2026 INSC 134).

Justice Gupta framed the core question in two parts. First, whether a photocopy which is insufficiently stamped can be impounded under Section 35 of the Rajasthan Stamp Act, 1998. Section 35 bars courts from admitting any instrument chargeable with duty unless it is duly stamped. Second, whether such a photocopy can be permitted in secondary evidence under Section 65 of the Indian Evidence Act, 1872. Section 65 allows copies of a document only in specific exceptional circumstances.

On the first point, the Court held that the bar under Section 35 is absolute in nature. The Court was addressing the argument that impounding would cure the stamp duty defect. It observed: “What cannot be done directly cannot be permitted to be done indirectly.” In plain terms, if the original agreement itself was inadmissible for lack of stamp duty, the plaintiffs could not use a photocopy to get around that bar. The Court relied on the Supreme Court’s three-judge ruling in Hariom Agrawal vs Prakash Chand Malviya (AIR 2008 SC 166). That ruling had categorically held that a photocopy of an original instrument cannot be admitted in evidence, and that a photocopy cannot be validated by impounding.

On the second point, the Court set out the foundational conditions for secondary evidence under Section 65. The party relying on a photocopy must prove three things — that the original existed, that it was executed, and why it is not being produced. Justice Gupta held that the plaintiffs had failed to establish any of these foundational facts. The Court was weighing the reliability of a photocopy obtained from the Electricity Department under the RTI Act. It observed that “a photocopy of a photocopy, lacking proper foundational proof,” could not be treated as reliable secondary evidence. This meant the plaintiffs could not convert a second-generation RTI copy into admissible evidence simply by pointing to a government office.

On impounding, the Court held that the power under the Stamp Act applies only to an “instrument” and a photocopy does not answer that description. Therefore, in the absence of the original, the question of impounding simply does not arise. The Court also noted that the Supreme Court’s recent ruling in Tharammel Peethambaran reiterates that mere production of a photocopy does not automatically make it admissible.

Justice Gupta dismissed both writ petitions as devoid of merit. The trial court’s orders dated 11 February 2025 and 26 August 2025 — refusing to admit the photocopy as secondary evidence and refusing to impound it — were upheld. Pending applications were disposed of.

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