IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.747 of 2008 (O&M) Date of Decision:22.11.2010 Ram Kanwar .....Appellant Vs. Surender Singh and others .....Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present:- Mr. Kapil Aggarwal, Advocate for the appellant. Mr. Pritam Saini, Advocate for respondent No.1. Mr. N.C. Kinra, Advocate for respondent No.3. **** RAKESH KUMAR GARG, J. This is plaintiff's second appeal challenging the judgment and decree of the lower appellate court whereby while accepting the appeal, judgment and decree of the trial court was set aside and suit of the appellant was dismissed by holding the same as not maintainable. As per the averments made in the suit, defendant No.1 was the owner of truck No. HR-14-1991 which was got financed from defendant No.2. Since the aforesaid truck was running into losses, plaintiff was made a partner by the defendant No.1 on 6.7.1994 in respect of the truck in question through a partnership deed and the plaintiff paid the amount to defendant No.1 for the said partnership. It is further case of the appellant that after he became the partner on 6.7.1994, the truck was used for business. However, on 11.1.1995 defendant No.1 forcibly and fraudulently R.S.A. No.747 of 2008 (O&M) -2- took the truck back from Karanpur (Rajasthan) and mortgaged a spare tyre of the truck which was got released by the plaintiff later on after making payment. Thereafter, again a dispute arose between the plaintiff and the defendant No.1 with respect to the user of the truck, thereafter, a mutual settlement had taken place. However, thereafter, defendants No.1 and 2 in connivance with defendant No.3 sold the truck to defendant No.3. Since the defendants were bent upon to alienate the truck in question, the present suit was filed seeking a decree for permanent injunction restraining the defenadnts from alienating/selling of the truck to anybody else. The suit was contested by the defendants No.1 and 3 by filing separate written statements denying the averments made in the suit. It was specifically stated that after the purchase of the truck, defendant No.1 was exclusive owner of the truck in question which he purchased through the finance from defendant No.2. The said truck was taken into possession by defendant No.2 and, thereafter, has been sold away to defendant No.3 and the plaintiff has no concern with the same. The trial Court decreed the suit holding that the plaintiff was a partner in equal shares therein. On an appeal filed by the defendant No.1, the judgment and decree of the trial Court was set aside by the lower appellate court holding that the relief of permanent injunction under Section 38 of the Specific Relief Act was not maintainable as the injunction was sought in respect of a right arising out of a contract which cannot be specifically enforced and the adequate relief to the appellant could have been sought by filing suit on the basis of the agreement of partnership. Still not satisfied from the aforesaid judgment and decree of the R.S.A. No.747 of 2008 (O&M) -3- lower appellate court, the plaintiff has filed the instant appeal. I have heard the learned counsel for the parties and perused the impugned judgment and decree. In fact, before this Court, the findings of the lower appellate court could not be disputed by the learned counsel appearing on behalf of the appellant that the suit was not maintainable in the present form. Not only this, it may be noticed that it is averment of the plaintiff- appellant himself that the truck has been sold away to defendant No.3. In view of the aforesaid averments, even otherwise, suit for permanent injunction was not maintainable. Thus, no substantial question of law arises. Dismissed. November 22, 2010 ( RAKESH KUMAR GARG ) renu JUDGE