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2018 DIGILAW 458 (ALL)

Hariom Paswan v. Sudhir Kumar

2018-02-20

MANOJ KUMAR GUPTA

body2018
JUDGMENT : MANOJ KUMAR GUPTA, J. 1. The instant petition is directed against the order dated 29.1.2018 passed by the Additional District Judge, Court No. 3, Saharanpur in Misc. Civil Appeal No. 54 of 2017 as well as order dated 13.11.2017 passed by Additional Civil Judge (Sr. Divn.), Saharanpur in Original Suit No. 434 of 2017. The trial court, by impugned order has rejected application of the petitioner for temporary injunction. The order has been affirmed with dismissal of the appeal. 2. The case of the petitioner was that the Society, of which he is the Chairman, was accorded permission to manage three toilets, by the Nagar Nigam, in pursuance of an agreement dated 1.6.2017, however, the private respondents are interfering with the rights of the petitioner to work under the contract dated 1.6.2017. Accordingly, a prohibitory injunction was sought against the private respondents. 3. Indisputably, during pendency of the suit, with the leave of the court, Nagar Nigam was impleaded as a party defendant. The original defendants as well as newly impleaded Nagar Nigam filed written statements and contested the claim of the plaintiff inter alia on the ground that the agreement with the petitioner dated 1.6.2017 was cancelled by order dated 18.7.2017, which has not been challenged, and consequently, the suit filed by the petitioner was barred under section 41(h) of the Specific Relief Act, 1963. 4. Counsel for the petitioner submitted that the petitioner has never been communicated the order cancelling the contract. It is urged that on 18.7.2017, the Municipal Commissioner has only endorsed his approval to office report stating that the agreement with the private respondents is for a period of 30 years which is thus to continue till 26.11.2022. Since the said period has not yet expired and thus, it is desirable that the contract in favour of petitioner be cancelled and the private respondents be permitted to continue. He submitted that even if the said office report was approved, but unless order cancelling the contract is communicated to the petitioner, it will not result in the contract being cancelled, nor there was any necessity to challenge the said order. 5. It is not disputed that not only the private respondents but even Nagar Palika, Saharanpur took specific plea that the contract of the petitioner was cancelled on 18.7.2017. 5. It is not disputed that not only the private respondents but even Nagar Palika, Saharanpur took specific plea that the contract of the petitioner was cancelled on 18.7.2017. Assuming the order of cancellation was not communicated to the petitioner, but from the pleadings, it is clear that the Nagar Nigam was not permitting the petitioner to work under the contract. In other words, even if it is assumed that Nagar Nigam has committed breach of the terms of the agreement, the remedy of the petitioner was to sue for damages. The nature of the contract was not such that it could be specifically enforced. In such view of the matter, this Court does not find any illegality in the ultimate conclusion arrived at by the courts below that the petitioner was not entitled to any temporary injunction. 6. There is no merit in the instant petition. It is accordingly dismissed. However, it is clarified that the observations made herein are only for the purpose of deciding the matter relating to temporary injunction and would not come in the way of the trial court, while deciding the suit on merits.