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Jawahar theatres Private Ltd. Vs. Smt. Kasturi Bai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 489 of 1959
Judge
Reported inAIR1961MP102
ActsSpecific Relief Act, 1877 - Sections 55, 56 and 57; Code of Civil Procedure (CPC) - Order 7, Rule 10
AppellantJawahar theatres Private Ltd.
RespondentSmt. Kasturi Bai and anr.
Appellant AdvocateP.D. Pathak, Adv.
Respondent AdvocateS.L. Jain, Adv.
DispositionRevision dismissed
Cases ReferredMotiram v. Daulat
Excerpt:
- - provided that the applicant has not failed to perform the contract so far as it is binding on him. --when, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts. therefore, i am of opinion that the trial judge cannot be said to have acted erroneously or illegally in holding that the plaintiff cannot be permitted to claim mere negative injunction but should be compelled to claim specific performance of the contract of lease as well......the learned judge of the trial court expressed the view that the plaintiff was also required to claim specific performance of the contract of lease and that for that reason he could not merely claim a negative injunction against the defendants. as regards the claim for specific performance the learned judge came to the conclusion that the valuation would be rs. 47,400/-, which would be the amount of lease money for one year. in that view of the case, the applicant's plaint was directed to be returned for presentation to proper court on the basis that the trial court would have no jurisdiction to try the suit upon the valuation as found by the court.5. the learned counsel for the applicant urged that it was open to the plaintiff to value his claim of injunction according to his own.....
Judgment:
ORDER

P.K. Tare, J.

1. This revision under Section 115 Civil P. C, is by the plaintiff against the order, dated 20-8-1959, passed by Shri A. K. Pandey, Second Civil Judge, Class II, Jabalpur, in Civil Suit No. 135-A of 1959 holding that the valuation of the relief of injunction claimed in the plaint at Rs. 500/-was inadequate and that the real valuation would be Rs. 47,400/-. Although originally the trial Judge demanded court-fees on the valuation of Rs. 47,400/-, the learned Judge, by a later order, held that he could not demand court-fees, as he had no jurisdiction to try the suit on the valuation as found.

Therefore, he ordered the plaint to be returned for presentation to proper Court under Order 7, Rule 10, C. P. C. That order was passed on 28-8-1959. Although that order may be appealable under Order 43, Rule 1(a), C. P. C., revision under Section 115, C. P.C., would be competent against the previous order, dated 20-8-1959.

2. The parties entered into an agreement, dated 26th July, 1958, regarding the lease of a cinema theatre, by which the cinema theatre belonging to the first non-applicant was agreed to be leased out to the applicant. It is not necessary to reproduce the terms of the said agreement.

3. The applicant filed the present suit for a mere injunction and valued it at Rs. 500/-. In the plaint, it was alleged that the first defendant was contemplating to lease out the theatre to other persons and was not abiding by the agreement entered into by her with the applicant on 26-7-1958. The applicant also prayed for leave to reserve his relief claiming specific performance of the contract of lease by filing a suit later. Therefore, in the present suit a mere negative injunction was claimed seeking to restrain the non-applicants from leasing out the theatre to any other person.

4. The learned Judge of the trial Court expressed the view that the plaintiff was also required to claim specific performance of the contract of lease and that for that reason he could not merely claim a negative injunction against the defendants. As regards the claim for specific performance the learned Judge came to the conclusion that the valuation would be Rs. 47,400/-, which would be the amount of lease money for one year. In that view of the case, the applicant's plaint was directed to be returned for presentation to proper Court on the basis that the trial Court would have no jurisdiction to try the suit upon the valuation as found by the Court.

5. The learned counsel for the applicant urged that it was open to the plaintiff to value his claim of injunction according to his own estimate and unless the valuation were found to be totally inadequate or wholly arbitrary, the Court could not interfere with the same.

6. It is true that the plaintiff can value his relief of injunction, as he likes, unless the Court finds it to be wholly unreasonable or absolutely arbitrary. In that event alone, the Court would interfere with the plaintiff's valuation. But, in the absence of those conditions the Court would not ordinarily interfere with a plaintiff's valuation regarding the relief of injunction, as laid down by a Full Bench of this Court in Motiram v. Daulat, ILR (1938) Nag 558: (AIR, 1939 Nag 50).

7. But the question in the present case is not merely regarding the valuation of the relief of injunction. The real question is whether the plaintiff can be permitted to claim a mere negative injunction, although he might be found to be in a position to claim a mandatory injunction by claiming specific performance of the contract of lease. It is true that the plaintiff sought leave of the Court to reserve his relief of specific performance and to confine the present suit to the negative injunction. I am of opinion that, ordinarily the Court would be disinclined to give him liberty to reserve his claim for specific performance for a separate suit.

It would be so mainly for the consideration that his claim of specific performance would not be triable by a Civil Judge Class II, but would be triable by a Court of higher jurisdiction. From that point of view, the present litigation, even it it goes against the plaintiff may not help thedefendants in preventing a trial of the second suit or may also defeat their plea of res judicata. From that point of view, I am of opinion that the plaintiff should not be permitted to split up his claim and to reserve the relief of specific performance for a later suit.

8. There is another aspect which persuades me to adopt this course. Section 56(f) of the Specific Relief Act, 1877 lays down that an injunction cannot be granted to prevent the breach ofa contract, the performance of which would not be specifically enforced. However, Section 57 of the Specific Relief Act, which is as follows is an exception to Section 56 of the Specific Relief Act:

'Notwithstanding Section 56, Clause (f), where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstance that the Court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement;

Provided that the applicant has not failed to perform the contract so far as it is binding on him.''

Therefore, unless a plaintiff brings his claim within the ambit of Section 57 of the Specific Relief Act, the Court would ordinarily refuse to grant a mere negative injunction in cases where a plaintiff is in a position to claim a mandatory injunction or the specific performance of the contract. If the Court were to permit that, it might result in multiplicity of suits and also might amount to abuse of the process of the Court if the other side were prevented from raising legal pleas, which would ordinarily be available to it.

It is true that where a party may not be able to claim a specific performance of the contract of lease, or where a party is not in a position to claim a mandatory injunction, such as cases, where it is a matter of personal skill or personal service, the Court might grant mere negative injunction. But in other cases the Court should be cautious about granting mere negative injunction in cases where a plaintiff, being able to claim positive injunction, or being able to claim specific performance, avoids to do the same and wants to reserve it for some later occasion. I do not mean to say that in no case should the Court grant such liberty to reserve for a later occasion. But the discretion has to be exercised judicially and if it results in depriving the other side of some of its legal pleas, the Court would not be inclined to exercise its discretion in favour of the plaintiff.

9. Upon a scrutiny of the plaint in the present case, it is clear that the plaintiff will get an unfair advantage, if he is allowed to claim a mere negative injunction instead of being compelled to claim a mandatory injunction for the enforcement of the right in his favour. Section 55 of the Specific Relief Act provides for mandatory injunction. It is as follows:--

'When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.'

The present case, in my opinion, would be governed by Section 55 of the Specific Relief Act and while the plaintiff seeks a mere negative injunction, the Court ought to and should exercise its discretion in favour of granting the further relief of a mandatory injunction. From that point of view, I am of oninion that the plaintiff in the present case cannot be permitted to continue his suit for a mere negative injunction.

10. If the plaintiff is also required to sue for mandatory injunction by way of claiming specific performance of the contract of lease in his favour, it is clear that the trial Court, where the suit is pending, would not have jurisdiction to try the suit. As such, the order of the trial Judge ordering the plaint to be returned for presentation to proper Court would be justifiable. However, that direction was not given in the order, which is impugned before me.

All the same, when the matter comes to the I notice o this Court, I am entitled to take cognizance of any subsequent development that took place in the trial Court. Therefore, I am of opinion that the trial Judge cannot be said to have acted erroneously or illegally in holding that the plaintiff cannot be permitted to claim mere negative injunction but should be compelled to claim specific performance of the contract of lease as well. I am of opinion that the order impugned is correct and calls for no interference.

11. As a result, this revision fails and is dismissed with costs. Counsel's fee Rs. 50/- if certified.


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