R.S.A. No. 680 of 2008 -1- 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 -2- 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 -3- 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.