High Court Punjab-Haryana High Court

Mohinder Singh vs Jaswant Kaur And Others on 15 January, 2009

Punjab-Haryana High Court
Mohinder Singh vs Jaswant Kaur And Others on 15 January, 2009
R.S.A. No. 680 of 2008
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    IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                   CHANDIGARH

                                         R.S.A. No. 680 of 2008
                                         Date of decision: 15.1.2009


Mohinder Singh
                                                             ....Appellant

                    Versus


Jaswant Kaur and others
                                                          ....Respondents

CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA

Present: Mr. Sameer Rathore, Advocate,
         for Mr. Sumeet Goel, Advocate,
         for the appellant.

                    *****

VINOD K. SHARMA, J (ORAL)

This regular second appeal is directed against the judgments

and decrees dated 7.4.2005 and 30.10.2007 passed by the learned Courts

below vide which the suit filed by the plaintiff/appellant seeking

mandatory injunction for enforcement of agreement entered into between

the parties has been ordered to be dismissed.

The plaintiff claimed that in pursuance of the agreement

entered into between the parties, he was entitled to use of passage from

the land of the defendant/respondents.

The suit was contested.

The plaintiff produced on record carbon copy of the agreement

as Ex. P-1 in support of his contention that there was an agreement

between the parties, which was disputed by the defendant/respondents.
R.S.A. No. 680 of 2008
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The learned Courts below have recorded concurrent finding of

fact that the plaintiff has failed to prove that there was any agreement

entered into between the parties or acted upon.

The learned Courts rejected document Ex. P-1 by observing

that this was not a primary evidence and the same could not be said to

have been proved without the production of original.

The learned counsel appearing on behalf of the appellant

contends that the finding recorded by the learned Courts below is

perverse on the face of record and is outcome of misreading of evidence,

inasmuch as Ex. P-1 was duly proved on record by examining the

executant of the agreement and the attesting witness.

The signatures of the defendants were also proved on the

agreement. However, the learned Courts below have rejected the

document being not primary document to be taken in evidence.

The plea of the learned counsel for the appellant cannot be

accepted. Once it is admitted that the document Ex. P-1 was merely

carbon copy, it could not be said to be primary document in view of

explanation 2 to Section 62 of the evidence Act, which defines the

primary evidence. The explanation 2 to Section 62 reads as under: –

“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 cotents of the rest; but, where they are all copies of a

common original, they are not primary evidence of the

contents of the original.”

It is not the case of the appellant that the document was proved
R.S.A. No. 680 of 2008
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by way of secondary evidence.

The learned Courts, therefore, rightly concluded that the

plaintiff has failed to prove on record the agreement, nor any evidence

was brought to prove that this was ever acted upon by the parties.

The cocurrent finding of fact cannot be said to be perverse as

contended by the learned counsel for the appellant.

The appeal does not raise any substantial question of law for

consideration by this Court.

No merit.

Dismissed.

(Vinod K. Sharma)
Judge
January 15, 2009
R.S.