R.S.A. No. 2275 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2275 of 2009 Date of decision: 30.05.2009 Sant Shri Namdev Trust near General Hospital, Sirsa Road, Hisar ....appellant versus Rajinder Parshad ....respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Kulvir Narwal, Advocate, for the appellant. *** VINOD K. SHARMA, J. (ORAL) C.M. No. 6805-C of 2009 Allowed. Exemption from filing certified copy of order dated 8.11.2008 of learned trial Court is granted. R.S.A. No. 2275 and C.M. No. 6806-C of 2009 This regular second appeal is directed against the judgment and decree dated 5.5.2009 passed by the learned Courts below, decreeing the suit for restoration of possession of shop, filed by the plaintiff/respondent. The plaintiff/respondent had taken shop No. 5 of Sant Shri R.S.A. No. 2275 of 2009 -2- Namdev Charitable Trust situated at Sirsa Road, Hisar, on lease on 17.2.1993. After the expiry of lease, he continued to be the tenant over the property on payment of rent. It was claimed that the appellant/defendant stopped issuing receipt of payment of rent. It was also the case set up by the plaintiff/respondent that he was forcefully evicted from the suit property, and that his request to restore possession was not accepted, thus, he filed the suit for mandatory injunction to hand over the possession of the suit property. The suit was contested. Besides taking preliminary objections, the case set up by the defendant/appellant was, that the plaintiff/respondent had not been paying the rent due to losses in business, and, therefore, made a request to hand back the possession, for transferring it to one Sh. Satish Bhatia. The defence set up was, that the plaintiff-tenant had voluntarily surrendered the possession. The learned Courts below, on appreciation of evidence, recorded a concurrent finding of fact that the plaintiff/respondent was illegally dispossessed and, therefore, he was entitled to injunction to seek back possession. The learned Courts below also held that the suit filed by the plaintiff/respondent was maintainable. Issue No. 2 was not pressed at the time of arguments before the learned lower appellate Court. It was also held that the plaintiff had cause of action to file the suit. The suit was held to be within time, and the objection qua estoppel was decided against the defendant/appellant. Mr. Kulvir Narwal, the learned counsel appearing on behalf of the appellant, contends that the appeal raises the following substantial questions of law: - R.S.A. No. 2275 of 2009 -3- “1. Whether the suit for mandatory injunction was maintainable in view of availability of specific remedy under the Specific Relief Act?” 2. Whether the judgment and decree passed by the learned lower appellate Court is based on presumptions and assumptions, thus, perverse? 3. Whether the learned Courts below gave undue weightage to oral evidence without there being any supportive document, and illegally ignored the documentary evidence and oral evidence led by the appellant, thus, the judgment and decree is perverse?” In support of the first substantial question of law, the learned counsel for the appellant contends, that in view of the specific remedy available under Section 6 of the Specific Relief Act, the suit for mandatory injunction was not competent. The contention of the learned counsel for the appellant is, that as the suit filed by the plaintiff/respondent was not maintainable, the learned Courts below committed an error in decreeing the suit. On consideration, I find no force in the contention, raised by the learned counsel for the appellant. The relief claimed by the plaintiff/respondent was covered under Section 6 of the Specific Relief Act. Merely because a provision of statute is not mentioned, cannot be a ground to hold that the suit framed was not competent. Even otherwise, the findings of the learned trial Court were not challenged by the appellant at the time of arguments before the learned lower appellate Court. It is, therefore, not open to the appellant to raise this point in the regular second appeal. R.S.A. No. 2275 of 2009 -4- In support of the second substantial question of law, the learned counsel for the appellant contends that the learned Courts below have rejected the document Ex. D-1 i.e. the letter written by the plaintiff/respondent merely on the basis of presumption, therefore, the decree passed by the learned Courts below being perverse is not sustainable. This contention is again mis-conceived. The learned Courts below, on appreciation of evidence, have recorded a concurrent finding of fact that Ex. D-1 was not written by the plaintiff/respondent, rather it was written by somebody else. Defendant/appellant failed to prove that the document Ex. D-1 was, in fact, written by the plaintiff/respondent. The learned Courts below, therefore, did not accept Ex. D-1 to hold that there was voluntary surrender by the plaintiff/respondent. The second substantial question of law is also answered against the appellant. In support of third substantial question of law, the learned counsel for the appellant contends that the learned Courts below have accepted the statement made by the plaintiff/respondent, and ignored the documentary evidence by way of application Ex. D-1 and proceeding books Ex. D-2 to D-5, as well as the receipt of licence fee, to hold that the plaintiff/respondent was illegally dispossessed. The learned counsel for the appellant referred to the proceedings recorded by the Trust, which were alleged to have been recorded on the basis of application Ex. D-1. This contention also cannot be accepted. The learned Courts below rightly rejected the evidence led by the defendant/appellant by holding that Ex. D-1 was prepared by the defendant/appellant to defeat the rights of the plaintiff/respondent. R.S.A. No. 2275 of 2009 -5- It is well settled law, that the concurrent findings of fact cannot be interfered with in regular second appeal merely on the ground that other view than the one taken by the learned Courts below, is also possible. The findings recorded by the learned Courts below are based on appreciation of evidence, which cannot be said to be perverse. The substantial questions of law, therefore, are answered against the appellant. For the reasons recorded above, finding no merit in the appeal, it is ordered to be dismissed in limine. (Vinod K. Sharma) Judge May 30, 2009 R.S.