Regular Second Appeal No. 2291 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2291 of 2008 (O&M) Date of Decision: 13.1.2009 *** Mahender ..APPELLANT VS. Arun ..RESPONDENT CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Surender Saini, Advocate. *** ARVIND KUMAR, J. After having lost concurrently before two Courts below in a suit for permanent injunction, the plaintiff-appellant has preferred the instant regular second appeal. I have heard learned counsel for the appellant and have gone through the paper-book carefully. The agreement and receipt dated 3.9.2003, allegedly executed by defendant-respondent, on the strength of which the plaintiff-appellant sought restraint order against the respondent from alienating the suit properties, remained unproved on record since except his own bald statement, the plaintiff, for the reasons best known to him, neither produced its scribe nor the attesting witnesses to the same. Although along with the instant appeal, an application for permission to lead additional evidence to prove the said agreement and receipt dated 3.9.2003 has been filed, but his this request cannot be allowed in the facts of the case. The very genesis of the case of the plaintiff was agreement and receipt dated 3.9.2003 and thus it can be safely said that the evidence now sought to be produced was well within the knowledge of the plaintiff since the inception of litigation. The plea of the plaintiff that he was not told by his lawyers that the examination Regular Second Appeal No. 2291 of 2008 2 of other witnesses is necessary to prove the case, cannot be accepted and is just an after-thought in the light of the fact that even while challenging the judgment and decree of the learned trial court, which found the said agreement and receipt dated 3.9.2003 as unproved, no efforts were made by the plaintiff to make such a prayer for leading additional evidence, before the learned first appellate court. Thus, in the fitness of things it would not be appropriate to allow the request of the appellant, which obviously resulted into opening of settled issue once again and thereby causing prejudice to the opposite party. Adverting to the merits of the case, even the recitals appearing in the alleged agreement regarding delivery of possession by the defendant to the plaintiff, were found factually incorrect since it was admitted by the plaintiff himself that defendant is in possession of the suit properties. Even the maintainability of the suit for permanent injunction was doubted by the Courts below in the light of the fact that with the expiry of date i.e. 4.9.2004, on which the sale-deed was to be allegedly executed, the said relief has become redundant and the plaintiff was required to amend his suit taking the plea of specific performance of the impugned agreement, which recourse was not adopted by him and hence in totality of the facts, his suit was rightly dismissed by the Courts below. No ground is made out to interfere with the concurrent findings of fact recorded by both the Courts below. No substantial question of law, which is sine qua non for admission of appeal is made out. The appeal is wholly without merits and the same is accordingly dismissed in limine. (ARVIND KUMAR) JUDGE January 13,2009 Jiten