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Ramchandra Tanwar Vs. Ram Rakhmal Amichand and anr. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Appeal No. 56 of 1970
Judge
Reported inAIR1971Raj292; 1970(3)WLN541
ActsSpecific Relief Act, 1963 - Sections 14(1), 36, 37 and 41; Code of Civil Procedure (CPC) , 1908 - Order 39, Rules 1 and 2
AppellantRamchandra Tanwar
RespondentRam Rakhmal Amichand and anr.
Appellant Advocate P.C. Mathur, Adv.
Respondent Advocate H.M. Parakh and; Dalpat Raj, Advs. (for No. 1) and; L.R.
DispositionAppeal allowed
Cases ReferredNandan Picture Ltd v. Art Pictures Ltd..
Excerpt:
.....order 39 rule (1) or (2) c.p.c. so as to permit the plaintiff to restart that business. - - the learned judge, strangely enough, made an order on that very day stating that the plaintiff had filed an application, with an affidavit, stating that the union of india wanted to take over the possession of the stalls with the help of the police and that if it was not prevented from doing so the purpose of the suit would be defeated and it would suffer irreparable loss. in doing so, he clearly ignored his earlier order dated march 21, 1970, as also the facts that the plaintiff had not produced any document to show that its contract was due to expire in december, 1970 or that compensation was not an adequate remedy for its claim in the suit. i am in respectful agreement with this view, for..........pronounced on that date and march 21, 1970 was fixed for the purpose. on the adjourned date, the learned judge drew up a long order after considering the arguments of the learned counsel for the plaintiff and the plaintiff's documentary evidence. he took note of the requirements of the law in respect of such an application, and observed that no document of the plaintiff went to show that its contract was to expire in december, 1970, or that it had been terminated by the railway administration in an unauthorised manner. the learned judge also held that the likelihood of irreparable loss, which was an essential requirement in such cases, could not also be said to have been established. ho further held that the plaintiff could claim compensation from the railway administration and recover.....
Judgment:

P.N. Shinghal, J.

1. This is an appeal by defendant Ramchandra against the order of Additional District Judge, Shri Ganganagar, dated June 5, 1970, making absolute the ad interim injunction dated March 26, 1970.

2. The facts are quite simple. The plaintiff instituted the suit on March 17, 1970, against the Union of India and the present appellant Ramchandra, for the grant of a perpetual and a mandatory injunction under Sections 38 and 39 of the Specific Relief Act, 1963, and recovery of damages amounting to Rs. 4,500/-. It was alleged that the plaintiff was a vendor of hot and cold drinks at Hanumangarh railway station, and carried on that business in two stalls constructed by the Railway Administration, and in six trollies, on payment of the fee therefor. The plaintiff paid the vending fee up to December 31, 1969, and any previous notice of termination of the contract was waived by the Railway Authorities. It was therefore pleaded that the plaintiff was surprised when it was informed that it would not be allowed to carry on the vending work beyond January 1. 1970. The plaintiff felt aggrieved because it was not served with a notice of three months, and it therefore served a notice under Section 80. C. P. C. and refused to vacate the stalls. Its trollies, were, however, not allowed to ply. It was specifically pleaded in Paragraph 10 of the plaint as follows:

'10. That the last contract was for a period of three years beginning from 1st January, 1967 (later corrected to read 1st January 1968) and terminating on 31st December, 1970. The defendant No. 1 could not terminate this contract before this date except as provided in the contract and by giving three months notice.'

The brackets are mine. On these averments the plaintiff claimed Rs. 1.500/-per month by way of damages amounting to Rs. 4,500/- for the period of 3 months which had passed up to the institution of the suit, and also for the issue of a perpetual and a mandatory injunction.

3. Along with the plaint, the plaintiff filed an application dated March 17, 1970 under Section 37 of the Specific Relief Act read with Order 39, Rules 1 and 2 C. P. C. for the issue of a temporary injunction restraining the Union of India from dispossessing it from the two stalls and interfering with the plying of the six trollies within the precincts of the railway station. A temporary injunction was also prayed against the present appellant Ramchandra for the removal of his trollies. An affidavit was filed in support of the application. There was, however, no prayer for the issue of an ad interim temporary injunction. Arguments on the application were heard on March 18, 1970 as if it was an application for the grant of an ad interim injunction, and it was fixed for pronouncing the order on March 20. 1970. The order was not, however, pronounced on that date and March 21, 1970 was fixed for the purpose. On the adjourned date, the learned Judge drew up a long order after considering the arguments of the learned counsel for the plaintiff and the plaintiff's documentary evidence. He took note of the requirements of the law in respect of such an application, and observed that no document of the plaintiff went to show that its contract was to expire in December, 1970, or that it had been terminated by the railway administration in an unauthorised manner. The learned Judge also held that the likelihood of irreparable loss, which was an essential requirement in such cases, could not also be said to have been established. Ho further held that the plaintiff could claim compensation from the railway administration and recover any damages that may be due to it. For these reasons he reached the conclusion that it was not proper to make an ad interim order, without hearing the defendants and without seeing the original contract. He therefore directed the issue of notices to the defendants and fixed April 28, 1970 for further consideration.

4. It appears, however, that on an application of the plaintiff dated March 25, 1970, the case was taken up again the very next day. The learned Judge, strangely enough, made an order on that very day stating that the plaintiff had filed an application, with an affidavit, stating that the Union of India wanted to take over the possession of the stalls with the help of the police and that if it was not prevented from doing so the purpose of the suit would be defeated and it would suffer irreparable loss. With this observation, the learned Judge reached the conclusion that it was necessary to maintain the status quo until the disposal of the application, and directed the defendants not to dispossess the plaintiff from the two railway stalls. In doing so, he clearly ignored his earlier order dated March 21, 1970, as also the facts that the plaintiff had not produced any document to show that its contract was due to expire in December, 1970 or that compensation was not an adequate remedy for its claim in the suit. The learned Judge thus completely ignored the fact that the plaintiff had not been able to make out a prima facie case.

5. The case was then taken UP on the subsequent dates and ultimately, the impugned order dated June 5, 1970 was passed by another learned Judge against which the present appeal has been directed.

6. It has been argued by the learned counsel for the appellant that the impugned order is contrary to the law inasmuch as it has been made in contravention of Clauses (a) and (c) of Subsection (1) of Section 14 of the Specific Relief Act, 1963, which provide as follows:

'14. (1). The following contracts cannot be specifically enforced, namely:

(a) a contract for the non-performance of which compensation in money is an adequate relief; ... .....................

(c) a contract which is in its nature determinable;.,......................'

7. Now a perusal of paragraph 14 of the plaint shows that the plaintiff has assessed the damages for breach of contract at the rate of Rs. 1,500/- per month so that, on its own showing, this is a case for which compensation in money is an adequate relief. Moreover the plaintiff has claimed damages against the railway administration in its notice under Section 80 C. P. C. also. It is therefore difficult to refute the argument of the learned counsel for the appellant, at this stage, that the case of the plaintiff falls within the purview of Section 14(1)(a) of the Specific Relief Act.

8. Then there is the further fact that the plaintiff has stated in paragraph 7 of the plaint that the contract could be terminated by giving a notice of three months. Mr. Mathur is therefore justified in arguing, at this stage, that this is a case of a contract which is 'in its nature determinable' within the meaning of Clause (c) of Sub-section (1) of Section 14 of the Act, and the fact that the contract provides for the issue of a notice of three months cannot detract from this basic fact. For this reason also, the contract cannot be specifically enforced. I am fortified in this view by the decision in Aldin v. Latimer Clark, Muirhead and Co., (1894) 2 Ch 437. The case law on the point has elaborately been examined in Dominion of India v. E. B. Sohanlal, AIR 1950 EP 40. In that case, by clause (1) the licensor granted to the licensee:

'The sole and exclusive right to sell to the travelling public newspapers, books, periodicals and the usual travellers' requisites and to erect book stalls for the purpose on station premises under the control of the North Western Railway Administration wherever the licensor may consider necessary.'

The site and the space of the book stalls were to be determined by the licensor. It was nonetheless held that the clause did not amount to the grant of any interest in the station premises or any particular part of and that it created only a licence as there was no transfer of property in the sense of the transfer of any interest in the station premises to him. It was therefore held that the licence was prima facie revocable, and that if its enjoyment was obstructed by the licensor the licensee's remedy was by way of damages so that 'on principle, no temporary induction should have been granted' in the case. I am in respectful agreement with this view, for Section 41(e) of the Specific Relief Act clearly provides that an injunction cannot be granted to prevent the breach of a contract the performance of which cannot be specifically enforced.

9. Mr. Parakh has cited Hurst v. Picture Theatres Ltd.. (1914)-15 All ER 836 but that was quite a different case because the right to enter the premises was a licence coupled with a grant, and was irrevocable. Similarly, State of Punjab v. Raghunath Das, AIR 1963 Punj 76 was also a different case as the excise licences were not 'bare licences' but were coupled with interest and were as such not revocable at pleasure. These cases cannot avail the respondent and have no relevance whatsoever.

10. Then there is another important factor which also goes in favour of the appellant. As has been stated, the plaintiff filed the application on March 17, 1970, along with the plaint, for the issue of temporary injunction, and in that application it was clearly stated that the two stalls in question were not working and were closed on the date of the suit. In such circumstances, when the business of the plaintiff had already been closed on the date of the suit, namely, on March 17. 1970, there could be no question of granting an injunction under Order 39 Rule 1 or 2 C. P. C. so as to permit the plaintiff to restart that business, for it is well settled that the trial court could do no more than restore the position as it stood on the date of the suit. Reference in this connection may be made to Nandan Picture Ltd v. Art Pictures Ltd.. AIR 1956 Cal 428. The learned Judge of the trial court, therefore, committed another illegality in passing the impugned order which had the effect of allowing the plaintiff to reopen and restart its business on the two stalls in question.

11. In these facts and circumstances I have no doubt that the impugned order of the trial court dated June 5, 1970 is quite illegal and incorrect. I have no hesitation, therefore, in allowing the appeal and in dismissing the application of the plaintiff dated March 17. 1970 for the issue of a temporary injunction under Order 39, Rules 1 and 2 C. P. C. The appellant will be entitled to his costs here and below from the plaintiff-respondent.


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