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Damodar Valley Corporation Vs. Haripada Das and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 1556 of 1977
Judge
Reported inAIR1978Cal489,82CWN1093,[1979(39)FLR180]
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rules 1 and 2
AppellantDamodar Valley Corporation
RespondentHaripada Das and ors.
Appellant AdvocateAmulya Kr. Mukherji, Adv.
Respondent AdvocateDebiprasad Bhattacharyya and ;Bikash Ranjan Neogi, Advs.
Cases ReferredAmerican Cyanamid Co. v. Ethicon Ltd.
Excerpt:
- .....him as superannuated. on the same day the plaintiffs opposite party filed an application for an ad interim injunction restraining the corporation from interfering with or obstructing him from performing his duties pertaining to his service. on this application the learned munsif held that there was nothing to show what the plaintiff-opposite party did during this period up to june, 1976 from which itcould be said that he was in service of the corporation. an ad interim order, it was held, would be infructuous at this stage and hence the application for interim order was rejected. 2. against this order the plaintiff preferred an appeal and the learned subordinate judge was of the opinion that from the affidavit of the corporation before the appellate court, it could not be ascertained.....
Judgment:
ORDER

Salil Kumar Datta, J.

1. This Rule is directed against an order dated March 22, 1977 passed by the Additional Subordinate Judge, Bur-dwan in Misc. Appeal No. 135/1976 in reversal of the order of the learned Munsif at Durgapur. The opposite party was an employee under the Damodar Valley Corporation, a body corporate, and by a letter dated April 30, 1976 he was released from his service from the afternoon of the said date. The opposite party, according to the Corporation, attained the age of superannuation for which he was released from service. The opposite party as plaintiff thereafter filed the suit on August 20, 1976 praying for a declaration that the order of release made by the Corporation referred to above, was illegal, ineffective and without jurisdiction and further that he was not to be treated as superannuated and that his service subsisted and continued. There was a further prayer for permanent injunction restraining the defendants from interfering with and obstructing the plaintiff in carrying on his service and in discharging his duties in connection with and pertaining to his service and from treating him as superannuated. On the same day the plaintiffs opposite party filed an application for an ad interim injunction restraining the Corporation from interfering with or obstructing him from performing his duties pertaining to his service. On this application the learned Munsif held that there was nothing to show what the plaintiff-opposite party did during this period up to June, 1976 from which itcould be said that he was in service of the Corporation. An ad interim order, it was held, would be infructuous at this stage and hence the application for interim order was rejected.

2. Against this order the plaintiff preferred an appeal and the learned Subordinate Judge was of the opinion that from the affidavit of the Corporation before the appellate court, it could not be ascertained that the plaintiff had actually been removed from service. Accordingly it was held that the main ground for refusal of the prayer for interim order of injunction by the learned Munsif was not tenable. The appellate court also considered the case on merits taking into consideration the horoscope as also the identity card which disclosed that the date of birth of the plaintiff was May 1, 1922 which did not justify or support the Corporation's case that the plaintiff had attained the age of superannuation on the relevant date. The court also noticed that the defendants did not produce the service record disclosing the age of the plaintiff. In such circumstances, it was held that the plaintiff has been successful in making out a prima facie case and that the balance of convenience also appeared to be lying with the plaintiff appellant. It was further held that the appeal was not incompetent relying on the decision in the case of Motilal Singh v. Shib Chandra Bose, reported in (1971) 75 Cal WN 233. The appeal was accordingly allowed and the order of the learned Munsif refusing to issue an ad interim order of injunction was set aside. The Corporation and its agents were restrained by temporary injunction, till the disposal of the connected Title Suit, from interfering with or obstructing the plaintiff from performing his duties pertaining to his service. This Rule, as already stated, is directed against this decision.

3. It will be of interest to refer to a recent decision in American Cyanamid Co. v. Ethicon Ltd., reported in (1975) 1 All ER 504 (HL) on the principle governing grant of interlocutory injunction in an action for permanent injunction. It has been laid down that there is no rule of law that the court was precluded from considering whether on a balance of convenience, an interlocutory injunction should be granted, unless the plaintiff succeeded in establishing a prima facie case or a probability that hewould be successful at the trial of the action. All that is necessary is that the court should be satisfied that the claim was not frivolous or vexatious; in other words, there is a serious question to be tried. The Court observed-

'It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial. Unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought.'

4. The Court further proceeded to observe :

'As to that, the governing principle is that the court should first consider whether if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant's continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages in the measure recoverable at common law would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction would normally be granted, however strong the plaintiff's claim appeared to be at that stage. If, on the other hand, damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the court should then consider whether, on the contrary hypothesis that the defendant were to succeed at the trial in establishing his right to do that which was sought to be enjoined, he would be adequately compensated under the plaintiff's undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of the trial. If damages in the measure recoverable under such an undertaking would be an ade-quate remedy and the plaintiff would be in a financial position to pay them, there would be no reason on this ground to refuse an interlocutory injunction.'

5. The principle governing grant of ad interim injunction appears to be as follows :--

(i) It is not necessary for grant of ad interim injunction on a balance of convenience that the plaintiff should succeed in establishing a prima facie case or a probability that he would be successful at the trial of the action.

(ii) It is also no part of court's function at that stage of the litigation to resolve conflicts on evidence on affidavits as to facts on which the claims of either party may ultimately depend nor to decide difficult question of law which call for detailed argument and mature consideration which is reserved for the trial. All that is necessary at that stage on the evidence on affidavits, is that the court should be satisfied that the claim is not frivolous or vexatious, in other words there is a serious question to be tried.

(iii) On such satisfaction, the court will consider whether the plaintiff, if he succeeds, would be adequately compensated by an award of damages for the loss if the defendant continued to do what was sought to be injuncted. If damages recoverable in law is an adequate remedy and the defendant is in a financial position to pay them, no interlocutory order should be normally granted, however strong the plaintiff's claim appears to be at that stage.

(iv) If damages are not an adequate remedy to the plaintiff in event of his success at the trial the court will consider if the defendant would be adequately compensated if he succeeds in his case, by reason of the plaintiff's undertaking for damages for the loss caused by reason of the injunction. If such damages are adequate remedy and the plaintiff is in a financial position to pay them, an interlocutory injunction should not be refused.

6. In this case it is obvious that in case the plaintiff succeeds, he would be adequately compensated which will follow as a consequence of the declaratory decree sought for in the suit as in such event the effect of the decision would be that the plaintiff is to be deemed to have continued in service. Further, it is no-body's case nor it can be that the statu-tory Corporation would ever be financially incapable of meeting the demands of the plaintiff in respect of his service, if held to be illegally superannuated. On the other hand, if the plaintiff who was a driver, loses the suit, there may be no way of recovering the amount that may be obtained by the plaintiff in the meantime and his undertaking would be of no avail. Further, the plaintiff's joining the service, after his release, would be illegal and create serious complications involving right of other persons in the event the suit is dismissed.

7. For all these reasons, as stated above, it appears that this is not a case where an ad interim order of injunction as prayed for, should have been granted by the appellate court.

8. The Rule is accordingly made absolute and the appellate order impugned in this Rule is set aside. Let the suit be heard out expeditiously, and let the records be sent down at once.

9. There will, however, be no order as to costs.


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