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Mohammad Mustafa Ali Khan Vs. District Board and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1934All101
AppellantMohammad Mustafa Ali Khan
RespondentDistrict Board and anr.
Excerpt:
.....by the contract of hiring and service is of so personal and confidential a character that it is evident that such contracts cannot be specifically enforced by the court against an unwilling party with any hope of ultimate and real success, and accordingly the court refuses to entertain jurisdiction with regard to them :see fry on specific performance of contracts, edn. 6. on the preceding page there is a reference to the well known case of lumley v. i would like to note that though in the ordinary case of a master and a servant an injunction certainly would not lie restraining a master from dismissing his servant, the remedy of the servant, if ho was wrongly dismissed, would be for damages;.....or volition of the parties, or otherwise from its nature is such that the court cannot enforce specific performance of its material terms.2. as an illustration to (b) the example is given:a contracts to render personal service to b, and a contracts to employ bon personal service : b cannot enforce specific performance of these contracts.3. the specific relief act therefore embodies the well known rule of english law that contracts of personal service between a master and a servant cannot be specifically enforced by either party. there are a large number of other examples given in the illustrations to section 21(b) on this point. the section has been followed in a ruling of a bench of the calcutta high court reported in ram chandra bajpai v. rakhal das moolcerjee a.i.r. 1914 cal. 325.....
Judgment:
ORDER

Bennet, J.

1. This is an application on behalf of an appellant plaintiff asking that defendants be restrained from enforcing a resolution of the District Board of Bareilly dated the 8th March 1933, and that proceedings relating to the handing over of charge be postponed until the disposal of a second appeal filed in this Court. The first defendant is the District Board of Bareilly. On the date in question there was a resolution dismissing the appellant from the post of Secretary of the Board. The case for the appellant is that that resolution was illegal because Section 48 of the District Boards Act requires that all business to be transacted by a special resolution must be notified to the members by a notice setting that business forth, and that this was not done in the present case. Both the lower Courts have dismissed the suit of the plaintiff. The Board has advertised in the papers that the post of secretary is vacant, and has passed a further resolution on the 18th September 1933, that the plaintiff should hand over charge. Now the question is whether the injunction in question can legally issue. Section 56(f) of the Specific Relief Act states:

An injunction cannot be granted...to prevent the breach of a contract, the performance of which would not be specifically enforced. Section 21 states : The following contracts cannot be specifically enforced...(b) a contract which runs into such minute or numerous details, or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such that the Court cannot enforce specific performance of its material terms.

2. As an illustration to (b) the example is given:

A contracts to render personal service to B, and A contracts to employ Bon personal service : B cannot enforce specific performance of these contracts.

3. The Specific Relief Act therefore embodies the well known rule of English law that contracts of personal service between a master and a servant cannot be specifically enforced by either party. There are a large number of other examples given in the illustrations to Section 21(b) on this point. The section has been followed in a ruling of a Bench of the Calcutta High Court reported in Ram Chandra Bajpai v. Rakhal Das Moolcerjee A.I.R. 1914 Cal. 325 and the discussion of the section is at pp. 33 to 34. In that case there was a deed of trust providing that there should be certain trustees and under their control there should be a superintendent of the trust property. The first superintendent was to be the donor himself, and after his death or relinquishment the superintendent was to be appointed by the trustees. After the death of the donor a superintendent was appointed by the trustees and the trustees eventually dismissed that superintendent. The superintendent brought a suit claiming that be was wrongfully dismissed and asking for an injunction against the trustees. It was held by the Court that the contract of service between the superintendent and the trustees was governed by Section 21(b) of the Specific Relief Act, and an injunction could therefore not be granted in respect of it under Section 54. On p. 33 it is stated:

Now a contract of service may be determined by the master, and the only remedy for a wrongful dismissal would be by an action for damages. Suppose the plaintiff refused to serve the defendants, the defendants surely could not compel him to serve them. If the trustees cannot prevent the plaintiff form resigning, he can have no right to compel the trustees to keep him. An agreement to serve cannot be specifically enforced. The relation established by the contract of hiring and service is of so personal and confidential a character that it is evident that such contracts cannot be specifically enforced by the Court against an unwilling party with any hope of ultimate and real success, and accordingly the Court refuses to entertain jurisdiction with regard to them : see Fry on Specific Performance of Contracts, Edn. 5, p. 41.

4. On p. 34 it is stated:

It was contended however that the case could not be disposed of merely on a consideration of the question whether an injunction could be granted; there has been no consideration whether, in fact, there had been proper removal of the plaintiff from the Office of Superintendent; there is nothing to show that there was any meeting of the committee in which the question of removal of the plaintiff was discussed and in fact no evidence had been taken in the case. But even assuming that he had been wrongly dismissed, the only remedy, as we have already stated, is by an action for damages, and the Court cannot compel the trustees to reinstate the Superintendent in his office if he was merely a servant.

5. In Pollock OH the Indian Contract and Specific Relief Act, Edn. 1924, it is stated on p. 867 in regard to Section 21(b) of the Specific Relief Act, that contracts involving personal service cannot be specifically enforced. Now to turn to She English law on the subject from which this doctrine takes its origin, I find that in Anson's Law of Contract, 1923 Edition, it is stated on p. 394:

In fact we may lay down that as a general rule contracts of personal service will not be dealt with either by decree for specific performance or by injunction.

6. On the preceding page there is a reference to the well known case of Lumley v. Wagner (1852) 1 De. G.M. & G. 604. In that case Miss Wagoner agreed to sing at Lumley's theatre, and during a certain period to sing nowhere else. Afterwards she made a contract with another person to sing at another theatre, and refused to perform her contract with Lumley. The Court rerfused to enforce Miss Wagner's positive engagement to Bing at Lumley's theatre, but compelled performance of her promise not to sing elsewhere by an injunction. In the case of Whitwood Chemical Co. v. Hardman (1891) 2 Ch. 416 at p. 428, it was held as follows:

'I think,' said Lindley, L.J., 'the Court will generally do much more harm by attempting to decree specific performance in cases of personal service than by leaving them alone; and whether it is attempted to enforce these contracts directly by a decree for specific performance or indirectly by an injunction appears to mo to be immaterial. It is on the ground that mischief will be done at all events to one of the parties that the Court declines in cases of this kind to grant an injunction, and leaves the party aggrieved to such remedy as he may have apart from the extraordinary remedy of injunction.

7. Attention has been invited by the learned Counsel for applicant to a ruling of a learned Single Judge of this Court reported in : AIR1933All826 , Sheonarain v. District Board, Shahjahanpur. In that case it was observed:

I would like to note that though in the ordinary case of a master and a servant an injunction certainly would not lie restraining a master from dismissing his servant, the remedy of the servant, if ho was wrongly dismissed, would be for damages; but in the case of the District Board they are governed by a statute.... It is clear therefore that it would be open for a dismissed servant to allege that the rule had not been complied with and that therefore he was not legally dismissed from his office. He would then be in a position to ask the Court for an injunction.

8. In that case the attention of the Court was not invited to the provisions of the Specific Relief Act in Section 56(f) and Section 21(b). I do not consider therefore that the ruling can be said to be a ruling upon those sections as those sections were not brought to the notice of the Court. I therefore prefer to follow the ruling of a Bench of the Calcutta High Court, to which I have made reference, as in that case the sections in question were referred to by the Court and the ruling was based on thele sections. For the reasons given I consider that although the appellant may establish that he has been wrongfully dismissed, still, assuming that he has established that point, he is not entitled to the remedy of injunction or of specific performance. Accordingly I hold that he cannot get the temporary injunction for which he has asked in the present case. Therefore I refuse this application.


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