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.
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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
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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.