R.S.A. No. 728 of 2010 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 728 of 2010 (O&M) Date of Decision : 17.2.2010 Avtar Singh .......... Appellant Versus Surjit Singh ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Sham Lal Bhalla, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 10.12.2009, passed by the learned Courts below, vide which suit for mandatory injunction filed by the plaintiff / appellant has been ordered to be dismissed. The plaintiff / appellant filed a suit for mandatory injunction directing the defendant / respondent to clear all the encumbrances upon the vehicle bearing registration No. PB-23-2212, and further to hand over the original RC and affidavit to the plaintiff. The injunction was also sought restraining the defendant from interfering into the peaceful use of the truck by the plaintiff / appellant. The suit was contested, wherein the defendant denied having sold the truck to the plaintiff / appellant. The defendant also denied having executed any receipt as alleged in the plaint. The receipt was said to be forged and fabricated document. R.S.A. No. 728 of 2010 2 The learned Courts below on appreciation of evidence, have recorded a concurrent finding of fact that the plaintiff was not entitled to mandatory or permanent injunction. The reason for coming to this conclusion was that the plaintiff did not produce the receipt, alleged to have been executed in his favour, which was the basis of the suit. The application moved by the plaintiff / appellant for leading secondary evidence to prove the receipt was allowed by the Court, however, the plaintiff / appellant failed to lead any evidence to prove the execution of the receipt. The learned Courts below recorded a concurrent finding of fact, that the appellant has failed to prove, that he had purchased the truck. The reason for coming to this conclusion was, that except for the alleged receipt there was no document on record to prove the purchase of truck by him. The learned counsel for the appellant contends that this appeal raises the following substantial questions of law :- 1. Whether the trial Court has granted sufficient opportunities to lead evidence to prove receipt dated 15.2.1997 executed by defendant in favour of appellant? 2. Whether present case as per Order 41 Rule 23 CPC is to be remanded back to decide afresh after granting opportunity to prove receipt? 3. Whether Ex.P-1 receipt is conclusive proof of sale of vehicle by the defendant to the appellant, and also proof regarding receipt of Rs. 1,50,000/-(Rupees fifteen thousand R.S.A. No. 728 of 2010 3 only) from the plaintiff? 4. Whether the judgments and decrees learned Courts below are based on misreading, mis-interpretation, and mis- construction of the oral as well as documentary evidence and against the material available on record amounting to perversity and giving rise to a substantial question of law? 5. Whether the judgment of the learned lower Appellate Court shows, the non- application of mind and discharge of the duty cast upon it under Section 96 of CPC? In support of the substantial questions of law, referred to above, the learned counsel for the appellant contended, that the appellant was not granted sufficient opportunity to lead evidence to prove the receipt dated 15.3.1997. Nothing has been disclosed, as to whether evidence of the plaintiff was closed by order of the Court or he himself closed the evidence. This contention of the learned counsel, therefore, deserves to be noticed to be rejected. The learned counsel for the appellant contended, that the receipt Ex.P-1 produced by the appellant was conclusive proof of the sale of vehicle in favour of the appellant. Especially, as the defendant had not appeared in the witness box to rebut the evidence led by the plaintiff / appellant. This contention is again misconceived. Admittedly, the plaintiff / appellant failed to prove the receipt, though, he availed opportunity for R.S.A. No. 728 of 2010 4 leading secondary evidence. He failed to prove the document relied upon. The findings recorded by the learned Courts below, therefore, cannot be said to be outcome of misreading and misinterpretation of the oral and documentary evidence, as was the contention of the learned counsel for the appellant on substantial question No.3. Once the plaintiff / appellant failed to lead evidence to prove the receipt in spite of availing number of opportunities, it can not be said that he was not granted sufficient opportunity to lead evidence. It also can not be said that the case is required to be remanded back, as no such plea was raised before the learned lower appellate Court. Once the plaintiff / appellant failed to prove the receipt, it can not be a conclusive proof of sale / or payment, as already observed above it is not a case of misreading of evidence, nor does the judgment and decree show non-application of mind. The concurrent finding of fact is not open to challenge in regular second appeal. The substantial questions of law, referred to above, are therefore answered against the appellant. No merit. Dismissed. 17.2.2010 ( VINOD K. SHARMA ) 'sp' JUDGE