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2002 DIGILAW 575 (PNJ)

Diwan Singh v. Major Ram Chander

2002-05-21

M.M.KUMAR

body2002
JUDGMENT M.M. Kumar, J. - This revision petition is directed against the order dated 20.2.1999 passed by the Addl. District Judge, Rewari allowing the appeal of the plaintiff-respondents which was directed against the order dated 3.12.1997. The order dated 3.12.1997 was passed by the Addl. Civil Judge (Senior Division) Rewari on an application filed under Order 39 Rules 1 and 2 of the Civil Procedure Code, 1908 (for brevity the Code) which was dismissed. 2. Brief facts of the case necessary for deciding the controversy raised in the present petition are that plaintiff-respondent No. 1 who claimed to be Manager in the Swami Uma Bharti Public Senior Secondary Public School, Jhajjar Road, Rewari (for brevity the School), filed a suit for permanent injunction alleging that he was appointed as a Manager of the School by defendant- respondent No. 3 for a period of three years on a fixed salary of Rs. 2500/- per month. He further alleged that he joined his duties as a Manager but the Receiver, defendant-petitioner No. 2 and defendant-petitioner No. 1, Principal have been interfering in the performance of his duties. It is on the basis of these allegations that plaintiff-respondent sought a decree for permanent injunction restraining defendant-petitioners from interfering in the discharge of his duties as a Manager of the School. Alongwith the suit, an application under Order 39 Rules 1 and 2 of the Code was also filed for grant of permanent injunction praying to restrain the defendant-petitioners from interfering in the performance of his duties as a Manager and also restraining them from withholding his salary. 3. The stand taken by the defendant-petitioner who are Principal and Receiver of the School is that the plaintiff-respondent was appointed by one Bhim Sain Wadhawa who was previously Secretary of Parma Hans Uma Bharti Mission and he resigned on 1.10.1988. Therefore, he had no authority to appoint the plaintiff-respondent as Manager of the School. It was further asserted that the plaintiff-respondent had earlier filed Civil Suit No. 668 dated 16.8.1995 in which temporary injunction was sought and his prayer was declined on merits vide order dated 19.2.1996. Thereafter the suit was withdrawn on 5.6.1996. 4. Therefore, he had no authority to appoint the plaintiff-respondent as Manager of the School. It was further asserted that the plaintiff-respondent had earlier filed Civil Suit No. 668 dated 16.8.1995 in which temporary injunction was sought and his prayer was declined on merits vide order dated 19.2.1996. Thereafter the suit was withdrawn on 5.6.1996. 4. The Civil Judge dismissed the application of the plaintiff-respondents vide order dated 3.12.1997 principally relying on the fact that in the earlier suit the prayer of the plaintiff-respondent for ad interim injunction was declined after hearing both the sides vide order dated 19.2.1996 and the suit was withdrawn thereafter on 5.6.1996 without seeking any permission to institute a fresh suit on the same cause of action. Therefore, the present suit is considered to be barred under Order 2 Rule 2 of the Code. It was further held that this fact was not disclosed in the suit from which the present revision petition has arisen. The Civil Judge further opined that plaintiff-respondent failed to place on record any document to establish a prima facie case in his favour to show that he was appointed as Manager in the school by the competent authority. The Addl. District Judge on appeal reversed the order passed by the Civil Judge. 5. I have heard Shri Gorakh Nath, learned counsel for the defendant- petitioners and Shri G.S. Gandhi, learned counsel for the plaintiff-respondent No. 1 and have perused the record with their assistance. 6. Shri Gorkah Nath has raised three arguments before me : a) That according to his own showing plaintiff-respondent No. 1 was appointed as Manager of the School on 14.2.1994 for a period of three years and that period of three years has come to an end on 13.2.1997. Therefore, according to the learned counsel plaintiff-respondent No. 1 has no right to continue as Manager of the School any further; b) That only a suit for damages could be filed by the plaintiff- respondent No. 1 because no specific performance of contract of personal service could be ordered by the Civil Court by virtue of the express prohibition imposed by Section 14 of the Specific Relief Act, 1963 (for brevity the Act). For this proposition, the learned counsel has placed reliance on a judgment of the Supreme Court in the case of Nandganj Sihori Sugar Co. For this proposition, the learned counsel has placed reliance on a judgment of the Supreme Court in the case of Nandganj Sihori Sugar Co. Ltd. and another v. Badri Nath Dixit and others, AIR 1991 SC 1525; and c) That defendant-petitioner No. 2, Naib Tehsildar has been running the school in pursuance to the order and compromise deed dated 19.9.1998. He has further argued that the provisions of Order 2 Rule 2 of the Code would be attracted and the present suit would be barred as the suit which was filed earlier wherein a similar application filed under Order 39 Rules 1 and 2 of the Code was declined and thereafter the suit was withdrawn. Moreover, this fact has not been disclosed by the plaintiff-respondent No. 1 in his plaint. 7. On the other hand, Shri G.S. Gandhi, learned counsel for the plaintiff- respondent No. 1 has argued that according to the letter dated 1.3.4.1995, the petitioner was appointed on 16.2.1994 on the basis of mutual agreement for a period of ten years at a monthly salary of Rs. 3,500/- with retrospective effect i.e. 16.2.1994. Another submission made by the learned counsel is that the earlier suit was withdrawn because of a formal defect as all the necessary parties were not impleaded. 8. Having heard the learned counsel, I am of the considered opinion that the impugned order dated 20.2.199 is liable to be set aside because it is well settled that no suit for performance of personal service could be decreed as is provided by Section 14 of the Act. This view has been taken by the Supreme Court in the case of Executive Committee of Vaish Degree College v. Laxmi Narain and others, A.I.R. 1976 S.C. 888 wherein the earlier view taken in the case of U.P. State Ware Housing Corporation v. C. Tyagi, 1970(2) S.C.R. 250 and B.N. Tiwari v. District Board, Agra, A.I.R. 1964 S.C. 1680 has been reiterated. Moreover, it is the assertion of the plaintiff-respondent himself that he has been appointed as Manager on 14.2.1994 for a period of three years and that period has already come to an end. Moreover, the impugned order passed by the Addl. District Judge fails to deal with the reasons given by the Civil Judge declining the application of the plaintiff-respondent No. 1. Therefore, I am of the considered opinion that this revision petition is liable to succeed. Moreover, the impugned order passed by the Addl. District Judge fails to deal with the reasons given by the Civil Judge declining the application of the plaintiff-respondent No. 1. Therefore, I am of the considered opinion that this revision petition is liable to succeed. 9. For the reasons recorded above, this revision petition is allowed. The impugned order dated 20.2.1999 passed by the Addl. District Judge, Rewari is set aside. The parties through their counsel are directed to appear before the Additional District Judge on 13.6.2002. In view of the fact that proceeding before the appellate Court has remained stayed because of the interim order dated 8.3.1999 passed by this Court it is directed that the appeal be decided as expeditiously as possible and preferably within a period of six months from the date of receipt of copy of this order. Revision allowed.