Skip to content


Vohara Abbasali Mahomadalli Lakhawala Vs. the State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectContract
CourtGujarat High Court
Decided On
Case NumberLetters Patent Appeal No. 34 of 1966
Judge
Reported inAIR1971Guj241; (1971)0GLR884
ActsSpecific Relief Act, 1877 - Sections 42; Code of Civil Procedure (CPC), 1908 - Order 7, Rule 7
AppellantVohara Abbasali Mahomadalli Lakhawala
RespondentThe State of Gujarat
Appellant Advocate N.V. Karlekar and; N.C. Sheth, Advs.
Respondent Advocate Y.B. Bhatt, Asst. Govt. Pleader
Cases ReferredRobert Fischer v. Secy. of State
Excerpt:
contract - suit - section 42 of specific relief act, 1877 and order 7 rule 7 of code of civil procedure, 1908 - suit filed challenging levy of penalty by government for cutting trees without authority of government - also for restraining government fro withholding amount of deposit - suit contended as hit by section 42 and not maintainable - in suit no pecuniary claim made by plaintiff - plaintiff merely seeks adjudication of unlawful orders of state - he seeks injunction for restraining government from implementing its unlawful orders of withholding deposit - section 42 not attracted - held, suit maintainable and directed to be decided on merits. - - the state government alleged that the plaintiff had cut without authority 56 trees and that, therefore, he was liable to make good to.....s.h. sheth, j.1. the plaintiff filed against the state of bombay regular civil suit no. 110 of 1956 in the court of the civil judge (senior division) baroda for two substantive reliefs. the first relief which he sought was the declaration that the order or orders made by the state government levying upon him penalty of rs. 2568-2-0 were illegal, void and without authority. the second relief which he prayed for was that a perpetual injunction be issued restraining the state government from withholding his deposit of rs. 2451/-.2. the impugned orders which were made by the state government were based upon certain allegations which the state government made against the plaintiff. the plaintiff had entered into a contract with the state government for felling, collection and removal of timber.....
Judgment:

S.H. Sheth, J.

1. The plaintiff filed against the State of Bombay Regular Civil Suit No. 110 of 1956 in the Court of the Civil Judge (Senior Division) Baroda for two substantive reliefs. The first relief which he sought was the declaration that the order or orders made by the State Government levying upon him penalty of Rs. 2568-2-0 were illegal, void and without authority. The second relief which he prayed for was that a perpetual injunction be issued restraining the State Government from withholding his deposit of Rs. 2451/-.

2. The impugned orders which were made by the State Government were based upon certain allegations which the State Government made against the plaintiff. The plaintiff had entered into a contract with the State Government for felling, collection and removal of timber fire-wood etc. The plaintiff was to execute that contract and fell and remove the trees situate in Songir Coupe forest in Sankheda sub-range of Chhota-Udepur Sub-Division of Baroda District. The State Government alleged that the plaintiff had cut without authority 56 trees and that, therefore, he was liable to make good to the State Government the value of the said trees so cut and the penalty. On 25th March 1955 the Chief Conservation of Forests of the State of Bombay made an order which is Ex. 34 wherein he stated that the total fine of Rupees 2650-10-0 imposed upon the plaintiff by the Sub Divisional Forest Officer, Chhota Udepur for various breaches of the said agreement was justified. He further stated that towards the said amount a sum of Rs. 62-8-0 had been paid by the plaintiff and that, therefore, a sum of Rupees 2568-2-0 was outstanding to be recovered from him. Having made this order the Chief Conservator of Forest further stated in his order that a sum of Rs. 2451/- being the balance of the deposit made by the plaintiff with the State Government in terms of the said contract could not be refunded to him.

3. The Sub-Divisional Forest Officers, Chhota Udepur on 16th/19th May 1955 wrote a letter to the plaintiff directing him to pay the aforesaid sum of Rs. 2568-2-0 into the Government Treasury within a fortnight failing which he stated that the said amount would be recovered from his deposit.

4. Under these circumstances the plaintiff filed the present suit for the aforesaid two reliefs.

5. The learned Trial Judge, upon evidence having felt satisfied with the claim which the plaintiff had made, granted the declaration that the orders which the State Government had made against the plaintiff for recovery of a sum of Rs. 2568-2-0 were illegal and ultra vires and not binding the plaintiff. The learned Trial Judge also issued a perpetual injunction restraining the State Government from 'retaining the plaintiff's amount of deposit of Rs. 2,451 which was kept with it'.

6. The State Government appealed to the District Court against the decree passed by the learned Trial Judge.

7. The learned Assistant Judge who heard the said appeal dealt with only one aspect of the case which was argued before him and arrived at the conclusion that the suit for declaration which the plaintiff had filed was not maintainable under Section 42 of the Specific Relief Act. He, in that view of the matter, did not think fit to record his finding on the merits of the case and allowed the appeal, set aside the decree passed by the learned Trial Judge and dismissed the suit with costs.

8. Against the appellate decree the plaintiff filed in this High Court Second Appeal No. 1235 of 1960 which was heard by Mr. Justice Raju on 10th March 1966.

9. Two points were canvassed before him both of which he by his judgment negatived. The first point which the plaintiff had made sought permission to amend the plaint. He negatived that application of the plaintiff. The second contention which was urged before him was that the plaint includes a prayer for refund and, that therefore, the learned Assistant Judge was in error in taking the view that the suit as framed by the plaintiff was not maintainable. He then recorded the finding that since the consequential relief of refund of money was not prayed for in the plaint by the plaintiff the suit was not maintainable. In that view of the matter he confirmed the finding recorded by the learned Assistant Judge and dismissed the appeal. He, however, granted to the plaintiff Certificate of fitness under clause 15 of the Letters Patent. It is upon the strength of that Certificate of fitness that the plaintiff has filed the present Letters Patent Appeal.

10. In this appeal the only contention which Mr. Karlekar for the plaintiff has raised is that the suit as framed by the plaintiff is maintainable and that it is not hit by the provisions of Section 42 of the Specific Relief Act. We have reproduced in the foregoing paragraphs of this judgment the two prayers which the plaintiff has made in the plaint. We have also briefly stated the circumstances under which the impugned orders were made against the plaintiff. In order to test whether the suit as filed by the plaintiff is maintainable or not we have to take into account the averments made by the plaintiff in the plaint. It is the plaintiff's case that the order which the State Government has made against him imposing upon him the aforesaid amount of penalty consisting of the value of the 56 trees alleged to have been cut without any authority and the fine is unlawful and defendant hors the contract which the plaintiff entered into with the State Government. The first averment which the plaintiff has made is that before passing the impugned order neither the State Government nor any of its officers heard the plaintiff in the matter or gave him the notice calling upon him to show cause why such an order should not be made. They allegation of the plaintiff, therefore, is that the order made by the Chief conservator of Forests and the officer subordinate to him does not have any authority of law and is not also in pursuance of the contract which the plaintiff had entered into with the State Government. The plaintiff, therefore, prayed for an adjudication of the unlawful character of the impugned order and then by the next prayer he wanted the Civil Court to issue an injunction restraining the State Government from implementing or enforcing that unlawful order against him. The second prayer, it cannot be gainsaid, has not been very happily worded. By the said prayer what the plaintiff wants is a perpetual injunction restraining the State Government from withholding his deposit of Rs. 2451/-. Withholding of the said amount of Rs. 2451/- is only one of the modes of recovering from the plaintiff the amount which the State Government claims from him by the impugned order. Ex. 35 makes it quite clear that the order which the concerned officer of the State Government made was for recovering the said amount as and by way of arrears of land revenue. Since incidentally the amount deposited by the plaintiff with the State Government for the due performance of the contract has been lying with the State Government the easier mode of recovering the amount claimed by the State Government from the plaintiff was the appropriation of the said deposit amount towards the claim made by the State Government. If there was no deposit amount of the plaintiff lying with the State Government naturally the State Government would have resorted to the coercive method of recovering the said amount from the plaintiff as and by way of land revenue. Therefore, merely because the deposit amount of the plaintiff was lying with the State Government and merely because as one of the modes of recovery of the amount claimed from the plaintiff the State Government was thinking of appropriating that amount towards the claim made by it from the plaintiff it cannot be said that the plaintiff ought to have, as a condition precedent to the maintainability of the suit, prayed for the refund of the said amount. We shall be shortly examining the several contentions which Mr. Bhatt has raised in this behalf. But it is clear, in our opinion, that if there was no deposit amount of the plaintiff lying with the State Government and if the State Government had threatened to take coercive action against the plaintiff for the recovery of the amount claimed by it from the plaintiff, the plaintiff would have been entitled to sue the State Government for restraining it from resorting to coercive method for recovering the said amount. In absence of any deposit amount laying with the State Government if the plaintiff would not be entitled to file a similar suit merely because some deposit amount of the plaintiff was lying with the State Government and merely because the State Government threatened to appropriate the said amount towards the claim which it made against the plaintiff (sic). In our opinion, there is no reason why the claim made by presence of the deposit amount of the plaintiff with the State Government should be mixed up. It is when these two facts are mixed up that one gets an erroneous impression that the claim made by the plaintiff in the present suit is in the nature of a pecuniary claim and that, therefore, the reliefs of declaration and injunction are not available to him. In the context of the circumstances which the plaintiff has alleged in his plaint under which the impugned order came to be made against him if we divorce the fact of the deposit amount of the plaintiff with the State Government from the claim made by the State Government against the plaintiff, the entire picture of the frame of his suit changes and an erroneous impression which is created as to the non-maintainability of the suit by the mixing up of the aforesaid two facts fades away and a different picture emerges. Appropriation of the deposit amount towards the claim made by the State Government is only one of the modes of recovering the claim made by the State Government against the plaintiff. The claim made by the State Government can also be recovered by the State Government filing a suit in the Civil Court or by the State Government recovering it as and by way of arrears of land revenue if it is permissible to do so. Therefore, a threatened action of appropriating the deposit amount towards the claim made by the State Government as one of the modes of recovery of the claim made by it against the plaintiff need not lead us to the conclusion what the plaintiff really seeks in his plaint amounts to pecuniary claim. Therefore, it appears to us that the presence of the deposit amount of the plaintiff lying with the State Government has clouded the issue and created an erroneous picture.

11. On reading the plaint and the averments which it contains on which the plaintiff's prayers are founded we have no doubt in our mind whatsoever that in substance and in effect the plaintiff wants two reliefs. Firstly, he wants an adjudication of the unlawful character of the impugned orders made by the State Government and secondly he wants an order of the Court whereby the State Government is restrained from enforcing and implementing these unlawful orders against him and from doing any damage to him. Restraining the State Government from withholding the deposit cannot, under the circumstances of this case, be tentamount to directing the State Government to pay the deposit amount to the plaintiff. If that was so, something probably could have been said in favour of the contention which Mr. Bhatt has raised before us. But payment or refund of the deposit amount by the State Government to the plaintiff is governed by the terms of the contract and is also governed by the making up of the accounts between the parties and by making several other considerations. It cannot, therefore be said that by praying for the injunction for which the plaintiff has prayed he is in substance making a pecuniary claim against the State Government.

12. Mr. Bhatt has invited out attention to Section 42 of the Specific Relief Act and contended that a suit for declaration is not maintainable unless the suit raises some dispute as to the legal character of the plaintiff to which he is entitled or to any right as to any property. In this case, argues Mr. Bhatt, there is no dispute as to the legal character of the plaintiff. He further contends that no right of the plaintiff as to any property is also involved in this case. He further contends that the word 'property' used in Section 42 excludes monies. So far as the principal part of S. 42 is concerned, it enables a person who is entitled to any legal character or to any right as to any property to sue for a mere declaration and permits him to omit any further relief. It is only the proviso to Section 42 which brings the requirement as to further relief into play. The proviso to Section 42 states that if the plaintiff is able to seek further relief than a mere declaration of title and if he does not seek any further relief, the Court shall not make such a declaration. So far as the proviso is concerned in terms it refers to 'further relief than a mere declaration of title.' The question of seeking further relief in terms of the proviso, therefore, arises only where under the principal part of Section 42 the plaintiff sues for a declaration of title. If the plaintiff has not prayed for a declaration of any title then the proviso cannot be invoked so as to hit, as in the present case, a suit of the type which the plaintiff has filed. So far as the proviso is concerned, therefore, in our opinion, it has no application to the present case.

13. Turning to the principal part of Section 42 we find that it refers to cases where mere declarations are sought. Those declarations relate to the plaintiff legal character, or to any right as to any property. The principal part of Section 42 applies to cases where mere declarations are sought. It would be exhaustive so far as claims for mere declarations are to be made. But where the plaintiff makes a claim for a declaration and also for some other substantive and independent relief S. 42 is not exhaustive. In other words, where the plaintiff seeks by an order of the Court to prevent the defendant from causing to him any threatened injury and if the declaration of action of the defendant is introductory to that relief, that declaration is not one which falls within the compass of S. 42. Firstly, S. 42 has no application to case where a declaration is sought as an introductory to some other relief and secondly, it has no application to cases where some independent relief other than a mere declaration is sought. In our opinion, therefore, it is not open to the State Government to invoke the provisions of S. 42 of the Specific Relief Act to hit the present suit and to contend that it is not maintainable. In this case the plaintiff has prayed for a declaration that the order made by the State Government is unlawful. That declaration which he seeks is introductory to the further relief which he claims, viz., an order of the Court restraining the State Government from causing any injury to him in pursuance of and in execution of its unlawful orders. Therefore, to the present case, for the reasons which we have stated above, S. 42 of the Specific Relief Act has no application.

14. Assuming that the reasons which we have stated above are not correct and that Section 42 hits the plaintiff's suit and that the plaintiff's suit on that account is not maintainable, we see no reason why the plaintiff is not entitled to an injunction within the meaning of S. 54 of the Specific Relief Act. In this case the State Government made, according to the plaintiff, an unlawful order unilaterally and further by its unilateral action it is threatening the plaintiff with the implementation of that order without having resort to the Court of law. In these circumstances it is clear, therefore, that, according to the plaintiff, the State Government is trying to cause to him an undue injury by arbitrarily executing the unilateral order made by it without seeking prior adjudication of the validity of that order. Such order naturally, if executed, would deprive the plaintiff of his property and its enjoyment. If the State Government threatens the invasion, under the aforesaid circumstances, of the plaintiff's right to the enjoyment of his property, there is no reason why the plaintiff is not entitled to a perpetual injunction restraining the State Government from taking such an action against him. To say that the execution of such an order merely involves recovery of some amount from the plaintiff and that the plaintiff can sue the State Government after the State Government has resorted to coercive methods and recovered the said amount from him is, in our opinion, to do grave injustice to the plaintiff. In such a case, apart from other considerations, the plaintiff would be in much worse position than the State Government would be in a suit of the present type. Such a course of action, if permitted to be adopted, is likely to do much harm to a citizen. We are not inclined, therefore, to uphold such an argument advanced by Mr. Bhatt.

15. Mr. Bhatt has invited our attention to two decisions of the High Court of Bombay. The first is in the case of Chunilal Thakordas Modi v. The Surat City Municipality, (1903) 5 Bom LR 267. In that case the plaintiff had filed the suit to restrain the Surat City Municipality by an order of injunction from recovering a certain sum as arrears of house tax for the years 1894 to 1899 on the ground that the plaintiff was not liable to pay the arrears due for certain years previous to 1899. The injunction which the plaintiff had prayed for in that suit was not granted and the suit was dismissed. The reasons which weighed with the High Court in refusing to the plaintiff the injunction which he prayed for were as follows. Firstly, the Municipality had a money claim against the plaintiff in the suit and the Municipality could not be restrained by an injunction from enforcing a money claim in the manner sanctioned by law. Secondly, equally efficacious remedy was available to the plaintiff under Section 86 of the Bombay District Municipal Act, 1901, viz., appeal to the Magistrate against the notice of demand issued by the Municipality. The plaintiff had not exhausted that remedy. Thirdly, in the opinion of the High Court, it could not be said that there existed no standard for ascertaining the actual damage likely to be caused to the plaintiff if the Municipality recovered the arrears of tax by distress warrant and sale because the plaintiff could sue for refund. The last reason which weighed with the High Court in terms of Section 56 of the Specific Relief Act was that pecuniary compensation could be given to the plaintiff for the invasion of the plaintiff's right. It was under those circumstances that the Division Bench of the High Court of Bombay consisting of Mr. Justice Crowe and Mr. Justice Chandavarkar held that -

'there is neither principle nor authority for restraining by injunction one who alleges that he has a money claim against another from enforcing that claim in the manner sanctioned by law.' In the present suit, the plaintiff does not seek to restrain the State Government from enforcing its alleged money claim in the manner sanctioned by law. He seeks an injunction to restrain the State Government from enforcing and executing its illegal order. Even if the plaintiff succeeds in the present suit, the refund or the recovery of the deposit amount, the presence of which has created quite a good deal of trouble for the plaintiff in the present suit, will be subject to many other considerations to which we have referred in the foregoing paragraphs. This decision of the High Court of Bombay has no application to the present case because what the plaintiff alleges in the present suit is that the order levying upon him penalty is unlawful and illegal and is an order which is made outside or defendant hors the realm of contract which the parties had entered into and which is also contrary to law. No such situation arose in the case (1903) 5 Bom LR 267. The second reason why that decision of the High Court of Bombay is not applicable to the present case is that irrespective of the wording of his prayer the essential and basic prayer which the plaintiff makes is for adjudication of the illegal and unlawful character of the impugned orders Exs. 34 and 35 and he then prays to restrain the defendant from enforcing those orders. The rest of the things, in our opinion, are purely incidental which need not be taken into account because they cloud the real issue. We do not subscribe to the view that an illegal and unlawful order unilaterally made by a public authority when it is incidentally likely to touch pecuniary claim or question should be first allowed to be enforced and then the plaintiff should be driven to the remedy of a civil action for getting the wrong done to him removed. Enforcement of such an illegal order by coercive measures of the State Government, apart from causing undue pecuniary loss to the plaintiff (as in the case of (1903) 5 Bom LR 267), also affects his reputation and peace of his mind for being subjected to coercive power of the State unlawfully and illegally. In our opinion, therefore, where such orders exist, if the person who is threatened with an action in pursuance of the orders wants the illegality or unlawful character of such orders to be adjudicated upon by a competent Court of law, he is certainly entitled to have such an adjudication. To permit the implementation of such an order first and then to have an adjudication upon it is, in our opinion, putting the cart before the horse, such a principle also militates against the concept of rule of law. No such facts or no such situation existed in the case (1903) 5 Bom LR 267. In the instant case, law does not sanction the enforcement of the impugned orders unless they have been previously determined, in case of a grievance, to be lawful by a Court of law. What the plaintiff, therefore, seeks in this case is essentially to put a stop to the enforcement or implementation of such orders. In the case referred to above the plaintiff had an efficacious alternative remedy. In the present case there was no such remedy except the present suit. So far as the pecuniary compensation is concerned, if an unlawful order is permitted to be executed, then it is difficult to assess the pecuniary compensation for such factors as the agony, distress, loss of peace and reputation which would be caused to the plaintiff. Pecuniary compensation for such things can hardly be adequately and satisfactorily assessed. In our opinion, therefore, the decision in the case of Chunilal Thakordas Modi, (1903) 5 Bom LR 267 (Supra) has no application to the present case.

16. Another decision to which he has invited our attention is in the case of Sripatrao Sadashiv Upre v. Shankarrao Saranaik, 32 Bom LR 207 = (AIR 1930 Bom 331). That is a decision of Mr. Justice Mirza. It was a case between two private citizens having contractual relations. The plaintiff sued for declaration that the defendant was liable to pay to him certain amounts of money in connection with a certain decree and certain costs incurred by the plaintiff. The further prayer which it contained was for a decree against the defendant to pay to him the money mentioned in the first prayer and costs and interest on judgment. On reading the report we find that no question in that case of adjudicating upon any unlawful order and restraining the defendant from implementing it otherwise than by having resort to the Court of law arose, there was no prayer for injunction there. The facts of that case, therefore, are really distinguishable from the facts of the present case. On the facts of that case the principle which Mr. Justice Mirza has laid down is that a declaratory suit cannot lie in respect of rights arising out of a contract. In a given case and in a given set of circumstances that principle can be applied. But the facts of this case are altogether different and the principle laid down by the learned Judge has no application to the present case.

17. Mr. Bhatt has invited our attention to the decision of the Lahore High Court in the case of F. Gopal Das Parmanand v.L. Mul Raj, AIR 1937 Lah 389. The principle which has been laid down by the Division Bench of the High Court consisting of Mr. Justice Abdul Rashid and Mr. Justice Addison is that a declaration that certain sum deposited by the plaintiff with the defendant as margin money is accountable by the defendant to the plaintiff cannot be granted under Section 42 of the Specific Relief Act as it affects only the pecuniary relationship between the parties to the contract. In the present case the plaintiff does not sue for the defendant's accountability. When he seeks to sue for is adjudication of the unlawful orders and forbidding the State Government from implementing them. That decision also has no application to the present case.

18. On a slightly different point he has then invited our attention to the decision of the High Court of Bombay in Bai Radhabai Vasudeo Jethabhoy v. Nandlal : AIR1956Bom649 . Mr. Bhatt cited that decision to his aid for the purpose of convincing us that the prayers which the plaintiff has made are essentially for recovering his amount. The principle which Mr. Justice Tendolkar has laid down in that case is that it is not the form of the prayer which matters but it is the substance thereof which should be looked into. No exception can be taken to that principle. We apply that principle to the facts of the present case and we are of the opinion that it is not the form of the plaintiff's prayer which matters, namely, that he wants an injunction seeking to restrain the defendant State from withholding his deposit amount. By wording his prayer in that form what he really prays for is that the State Government should be restrained from implementing its unlawful orders. That decision which has been cited before us by Mr. Bhat, therefore, does not advance his argument any further.

19. We have already taken the view that except in the case of mere declaration Section 42 has no application and it is, therefore, not exhaustive. Mr. Karlekar has invited our attention to a decision of the Division Bench of the High Court of Madras in the case of Krishnaveni Ammal v. M.D. Soundararajan : AIR1945Mad53 . The principle which has been laid down by the Madras High Court in that case is that S. 42 of the Specific Relief Act is not exhaustive. The following observations made in that decision are apposite.

'I respectfully agree with the decisions in both ILR 4 Rang 22 = (AIR 1926 Rang 124) and 1940 Rang LR 59 = (AIR 1939 Rang 332 FB). It is true, as laid down in the various decisions to which I have referred, that the general view is that Section 42, Specific Relief Act, is not exhaustive, but there is no authority for the proposition that a suit for a declaratory decree will lie when the plaintiff is neither entitled to any legal character nor to any right in the suit property.'

20. Mr. Karlekar has then invited our attention to the decision of the Judicial Committee of the Privy Council in the case of Robert Fischer v. Secy. of State for India in Council, (1904) ILR 22 Mad 270 (PC). The view which the Madras High Court has taken conforms to the view taken by the Privy Council in that decision.

21. These are all the points which have been argued before us. We are unable to uphold the contentions raised by Mr. Bhatt before us. In our opinion, for the reasons stated above, the suit filed by the plaintiff for the aforesaid two reliefs is maintainable.

We, therefore, allow the appeal, set aside the decrees passed by the High Court in Second Appeal No. 1235 of 1960 and by the District Court in Civil Appeal No. 78 of 1959 and remand the appeal to the District Court for hearing it on merits and deciding it according to law. Since the learned Assistance J. has decided the appeal only on the preliminary ground and since he has not recorded his findings on the merits of the case, though the learned Trial Judge decided the entire suit, it has become necessary for us to remand the appeal to the District Court for decision on merits according to law. So far as the costs are concerned, there shall be no order as to costs of this appeal, in the circumstances of the case.

22. Appeal remanded.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //