1988 PLP 1461 (MLD)

This Revision Petition is directed against the order dated 23‑4‑1988 passed by the learned Additional District Judge, Gujrat accepting the appeal of the respondent against order dated 22‑3‑1988 passed by the learned Trial Court rejecting his application for issuance of temporary injunction during the pendency of the suit.

2. The respondent was given contract for collection of cattle fee of Mandi Muvashian through open auction for three years from 1‑12‑1.986 to 30‑11‑1989. This contract was however subsequently cancelled on 26‑2‑1988 by the Chairman Zila council Gujrat on the alleged violation of clause 10 of the agreement. The respondent filed suit on 1‑3‑1988 before the trial Court challenging the said action of the Chairman. Alongwith the suit an application for temporary injunction was made praying therein that pending disposal of the suit, the defendant/present petitioner be restrained from cancelling the contract and from interfering with the right of the respondent to. hold Mandi. The learned trial Court by order dated 22‑3‑1988 rejected the application. It has been held that before filing the suit on 1‑3‑1988 the contract had already been cancelled on 26‑2‑1988. The contract did not create any vested right m favour of the respondent to hold Mandi Muvashian and that the Chairman was competent to cancel the contract if in his opinion the respondent had violated its terms. It has also been held that respondent failed to establish prima facie case and the respondent if felt aggrieved, could file suit for damages and no injunction could be granted for restoration of the contract as no irreparable loss was to accrue to the respondent because the damages could be assessed in terms of money. Feeling aggrieved the respondent filed appeal before the learned Additional District Judge, Gujrat which has been accepted by impugned order dated 23‑4‑1988 and after setting aside the order of the trial Court, the learned Additional District Judge, passed an order restraining the petitioner from disturbing the respondent from carrying out his job till the period of lease.

3. Learned Advocate‑General who appeared in support of this revision petition argued that under section 21 of the Specific Relief Act since the very contract was not such which could be specifically enforced, therefore, no injunction could be issued in case of alleged breach of such a contract. He stressed that the remedy if available to the respondent was to claim, damages as such the respondent did not have prima facie case in his favour and since the damages could be assessed in terms of money as such in case of refusal to issue temporary injunction, the respondent could not be held to suffer any irreparable loss. The balance of convenience was also in favour of the petitioner, since the impugned order amounts to interference in the functions of the Zila Council.

4. On the other hand, learned counsel for the respondent argued that originally the contract in favour of the respondent was cancelled on 1‑4‑1987 against which the respondent previously filed a suit for permanent injunction on 4‑4‑1987. During the pendency of the suit, the Chairman Zila Council Gujrat, passed order on 9‑4‑1987 on an application of the petitioner praying restoration of the contract which was restored till further orders. In view of this order, the suit was withdrawn by the respondent. Subsequently according to learned counsel for the respondent on the application of the petitioner the Chairman on 28‑6‑1987 restored the contract permanently. According to learned counsel through letter dated 19‑10‑1987, after the expiry of the first year of the lease, the respondent/plaintiff was called upon by Taxation Officer to deposit Rs. 15,000 the lease money for the next year which has been deposited therefore through the order dated 26‑2‑1988 cancellation of the contract could not be made as the Chairman had no locus poenitentiae to pass such an order after having restored the contract permanently on 28‑6‑1987.

5. I have considered the arguments of both the learned counsel. The arguments of the learned Advocate‑General have considerable force. The contract in its nature was such that the specific performance of the same could be refused under section 21 of the Specific Relief Act and in case of such, a contract the relief of injunction could also be refused in the event of its breach. It was rightly held by the learned trial Court that irreparable loss would be caused to the respondent in case injunction on as prayed for was refused as he would have a remedy of claiming damages. It was also rightly pointed out by the learned trial court that before filing the suit the contract had already been cancelled and it was not found a fit case for issuance of temporary injunction so as to revive the contract, particularly when it had been cancelled on the ground of its violation as alleged by the petitioner. It has yet to be established on trial of the suit by the respondent that there was no violation of terms and conditions of the contract. The arguments of learned counsel for the respondent that the contract was restored permanently by the Chairman on 28‑6‑1987, in the first instance attracted my serious consideration but when inquired from the learned Advocate General, it was pointed out that there was no such order on the file which the official of Zila Council concerned has brought in Court. The order dated 28‑6‑1987 allegedly passed by Chairman Zila Council Gujrat, at this stage cannot be presumed to have been passed since its very existence is being denied. The respondent himself has produced a photo copy of the said order and there is no material brought on the record in order to establish that it was communicated to the respondent officially so as to attract rule of locus poenitentia as has been sought to be pressed .into service by the learned counsel for the respondent. Earlier the Chairman passed order on the application of the respondent allowing restoration of lease till further orders. Order dated 9‑4‑1987 shows that the Chairman clearly recorded therein that he would personally examine the case. According to learned Advocate‑General, it was in pursuance of the said order that the Chairman finally passed order dated 26‑2‑1988 which was challenged in the suit. Learned counsel for respondent referred to case law that a mandatory injunction could be issued restoring the contract during the pendency of the suit. I am afraid, this is not a fit case for passing such an order as the case is not an extraordinary case in which the Court could invoke this jurisdiction as the damages in case no injunction was issued could be assessed in terms of money. It has been pointed out by learned Advocate‑General that after cancellation of lease in favour of respondent, it was put to auction and the highest bid offered and accepted is for 11,00,500 for one year. This being so, the respondent can very well assess the alleged damages keeping in view this highest bid in assessing his alleged loss. The logical bases on which the learned trial Court rejected the application have not been properly attended to and dealt with by the learned lower appellate Court which it appears proceeded on the wrong assumption as if the contract was still to be cancelled when it observed in the concluded portion of paragraph 5 "that the plaintiff was likely to suffer an irreparable injury in case the lease was cancelled before the expiry of stipulated period".

6. Learned counsel for the respondent lastly argued that the contract has been cancelled without notice to the respondent and without affording him opportunity of hearing. This submission has no force. If the respondent succeeds in proving this action of the petitioner as wrongful, and ultimately he succeeds in the suit in establishing his allegations he could adequately be granted appropriate relief of either damages, or allowing him to complete unexpired tenure of the lease period as the case may be. It was not a fit case for allowing respondent to carry out the job under the lease which had already been cancelled. In case the respondent fails in suit, in that case the loss of petitioner could not adequately be compensated.

7. Learned lower appellate Court acted with material irregularity and illegality in interfering with just legal and proper order passed by the trial Court keeping in view the well established principles as laid down by the superior Courts regarding issuance of temporary injunction during the pendency of the suit. The revision petition succeeds. It is accepted, the impugned order dated 23‑4‑1988 passed by the learned Additional District Judge, Gujrat is hereby set aside. The parties are left to bear their own costs. H.B.T./D‑28/L Petition allowed.