ivil Appeal No 3644 of 1989
From the Judgment and Order dated 10101988 of the Allahabad High Court in SA No 194 of 1987
Yoeshwar Prasad and Mrs Shobha Dikshit for the Appellants
471 BD Agarwala Gopal Subramaniam Ms Bina Gupta Arvind Verma Ms Monika Mohil RK Srivastava and P Misra for the Respondents
The Judgment of the Court was delivered by THOMMEN J
This appeal is by defendants 1 and 2 in a suit for mandatory injunction
The appellants are officers of Nandganj Sihori Sugar Co Ltd Rae Bareli of which the third defendant the UP State Sugar Corporation Ltd the second respondent herein is the holding company
The State of Uttar Pradesh the third respondent is the fourth defendant
The plaintiff Badri Nath Dixit the first respondent instituted the suit for mandatory injunction to enforce a contract alleged to have been entered into between the plaintiff and defendants 1  2 for appointment of the plaintiff to the post of Instrumentation Foreman in the defendants company and for consequential reliefs
The plaintiff contended that he had been sponsored by the Chairman and Managing Director of the third defendant by his letters dated 18 October 1982 and 14 December 1982 for appointment by defendants 1  2 as an Apprentice Engineer in terms of a scheme formulated by the Government of India but such appointment was not made by defendants 1  2
The plaintiff prayed for an injunction compelling defendants 1  2 to appoint him to the post of Instrumentation Foreman  which post according to him was at the time of the suit lying vacant
In effect what the plaintiff seeks is a decree to compel the specific performance of a contract of personal service
Defendants 1 to 3 filed a joint written statement denying the allegations
They stated that there was no contract as alleged and there was no vacancy for any post to which the plaintiff was qualified to be appointed
They further stated that the plaintiff had been conditionally offered appointment as a Fitter Trade Apprentice subject to his possessing the requisite qualifications and his selection by the Apprentice Board Kanpur
The plaintiff was not qualified and was therefore not selected
They further contended that neither as an Apprentice nor as Instrumentation Foreman was the plaintiff qualified to be appointed
The suit was dismised by the trial court
However on appeal by the plaintifif it was decreed by the learned Additional District Judge who directed defendant 1 to appoint the plaintiff to the post of Apprentice Engineer under the s cheme sponsored by the Government of India
This decree was confirmed in appeal by the High Court by the impugned judgment
The High Court further held 472 that the plaintiff was entitled to be appointed to the post of Instrumentation Foreman with effect from the date on which the former incumbent of that post had resigned
Counsel for the appellants defendants 1  2  submit that there is no evidence of the alleged contract having been entered into by the defendants with the plaintiff nor is there any evidence of a scheme of the Government of India which entitled the plaintifif to be appointed to any post in the defendants  company
Counsel states that in any view the plaintiff was not qualified for appointment as an Apprentice and much less to the higher post of Instrumentation Foreman
The plaintiff s counsel however submits that the letters addressed by the third defendant in his capacity as Chairman and Managine Director of the holding company to defendants 1  2 the officers of the subsidiary company made it obligatory on the part of the latter to appoint the plaintiff in terms of the Government of India scheme
It was so found by the first Applleate Court and the High Court
That finding is not liable to be impeached in the present proceeding
He says that the defendants are therefore liable to be compelled by means of a mandatory injunction to honor the offer held out by them to the plaintiff who is entitled to enforce the contract founded on such offer by seeking specific performance of it
We are surprised that the first Appellate Court and the High Court should have proceeded on the assumption that any enforceable contract existed
Neither from the plaint nor from the evidence is it possible to identify and concluded contract to which the plaintiff is a party or which the plaintiff can enforce
The defendants deny the existence of any contract or any other relationships which gives the paintiff any cause of action against the defendants
There is no specific plea or evidence as regards the particulars of the alleged scheme of the Government of India in terms of which the plaintiff seeks relief
Whether it is a statutory scheme and if so what are the provisions relied on by the plaintiff and whether a duty is cast on the defendants and a benefit conferred on persons like the plaintiff is neither pleaded nor spoken to inevidence
Assuming that any such scheme existed or any such contract bound the parties to have decreed a suit for specific performance of a contract of personal service on the facts alleged by the plaintiff was to violate all basic norms of law
Courts do not ordinarily enforce performance of contracts of a personal character such as a contract of employment
In the words of Jessel MR 473 The courts have never dreamt of enforcing agreements strictly personal in their nature whether they are agreements of hiring and service being the common relation of master and servant   Rigby vs Connol  487 see Cheshire Fifoot and Furmston s Law of Contract 11th ed p 614
 In the joint written statement filed by defendants 1 to 3 representing the holding and subsidiary companies the alleged contract has been clearly denied
We fail to see how the letters addressed by the Chairman of the holding company to the officers of the subsidiary company advising the appointment of the plaintiff to a post which he was found to be not qualified to hold could have resulted in any contract between the defendants of the one part and the plaintiff of the other part
Assuming that the letters written by the Chairman of the holding company were in the nature of a direction which a subsidiary company was compelled to carry out we fail to see how on the facts of this case the plaintiff who had no privity whatever to a contract assuming there was a contract could enforce any right under it
In the first place the letters sent by the Chairman of the holding company are merely in nature of an advise giving rise to no contractual relationship
Even if the advise is taken to be of the character of a direction which the subsidiary company is bound to comply with any obligation arising from such direction is not enforceable at the instance of a total stranger
The Chairman was in no sense acting as a trustee of the plaintiff and no relationship of a fiduciary character whatever is alleged or proved to have existed between them
Assuming that the then Chairman was personally interested in the plaintiff that was not an interest which is legally enforceable against the defendants
Such predilection on the part of the Chairman of a holding company whatever be its impact on the subsidiary company does not give rise to any actionable claim
There is no evidence whatsoever as to the existence of a Government scheme apart from a reference to it in the Chairman s letter
The plaintiff has not shed any light upon it
The defendants have not admitted any such scheme
Even if a scheme existed there is no evidence that it was enforceable at the instance of a person seeking its benefit
Nor has the plaintiff pleaded estoppel or adduced any evidence to support any such contention
In the absence of any specific plea or evidence as regards the nature and other particulars of the scheme it is preposterous that the courts below should have thought it fit to issue a mandatory injunction to compel the performance of the alleged contract of service in terms 474 of or pursuant to an unknown scheme
Subject to certain well defined categories of exceptions the law does not permit and the does not contemplate the enforcement of a contract of a personal nature by a decree for specific performance
The facts of this case do not fall within the exceptions
Assuming that the fact alleged by the plaintiff to be true as stated earlier there is no evidence whatever to support them the plaintifif is not entitled to any relief other than damages in the even of his being in a position to prove that he has been damnified by reason of the defendants  failure to carry out the obligations arising under what he calls a contract
In Halsbury s Laws of England Fourth Edition Volume 44 at page 407 it is stated 407
Contracts for personal work or services
A judgment for specific performance of a contract for personal work or services is not pronounced either at the suit of the employer or the employee
The court does not seek to compel persons against their will to maintain continuous personal and confidential relations
However this rule is not absolute and without exception
It has been held that an employer may be restrained from dismissing an employee in breach of contract if there is no loss of confidence between employer and employee or if at least in a contract of employment to carry out a public duty the employee has been dismissed in a manner which does not comply with statutory or contractual regulations governing dismissal
No court may whether by way of an order of specific performance of a contract of employment or an injunction restraining a breach or threatened breach of such a contract compel an employee to do any work or attend at any place for the doing of any work
This principle applies not merely to contracts of employment but to all contracts which involve the rendering of continuous services by one person to another such as a contract to work a railway line  emphasis supplied As stated by this Court in Executive committee of Vaish Degree College Shamli and Others vs Lakshmi and Ors  at 1020 475  a contract of personal service cannot ordinarily be specifically enforced and a Court normally would not give a declaration that the contracts subsists and the employee even after having been removed from service can be deemed to be in service against the will and consent of the employer
This rule however is subject to three well recognised exceptions i where a public servant is sought to be removed from service in contravention of the provisions of Art311 of the Constitution of India ii where a worker is sought to be reinstated on being dismissed under the Industrial Law and iii where a statutory body acts in breach or violation of the mandatory provisions of the statute emphasis supplied A contract of employment cannot orodinarily be enforced by or against an employer
The remedy is to sue for damages
See section 14 read with section 41 of the  see Indian Contract and Specific Relief Acts by Polock  Mulla Tenth Edn page 983
The grant of specific performance is purely discretionary and must be refused when not warranted by the ends of justice
Such relief can be granted only on sound legal principles
In the absence of any statutory requirement courts do not ordinarily force an employer to recruit or retain in service an employee not required by the employer
There are of course certain exceptions to this rule such as in the case of a public servant dismissed from service in contravention of Article 311 of the Constitution reinstatement of a dismissed worker under the Industrial Law a statutory body acting in breach of statutory obligations and the like
BN Tiwari vs District Board Agra   UP State Warehousing Corporation vs CK Tyagi   Executive Committee of Vaish Degree College Shamli and Ors
vs Lakshim Narain and Ors  see Halsbury s Laws of England Fourth Edn Volume 44 paragraphs 405 to 420 On the facts of this case the High court was clearly wrong in issuing a mandatory injunction to appoint the plaintiff
Even if there was a contract in terms of which the plaintiff was entitled to seek relief the only relief which was available in law was damages and not specific performance
Breach of contract must ordinarily sound in damages and particularly so in the case of personal contracts
Assuming that a contractual relationship arose consequent upon the letters addressed by the third defendant to the 1st defendant the plaintiff was a total stranger to any such relationship for on the facts of this case no relationship of a fiduciary character existed between the plaintiff and 476 the third defendant or other defendants
Neither on principles of law or equity nor under any statute did the plaintiff acquire an enforceable right by reason of the letters exchanged between the first and third defendants
The plaintiff had no privity of any kind to their relationship
No collateral contract to which the plaintiff was a party did arise on the facts of this case
At no time was the third defendant acting as an agent of the plaintiff
There is no express or implied contract which is enforceable by the plaintiff
See Halsbury s Laws of England Fourth Edn Volume 9 paragraphs 334 to 342
The plaintiff s counsel suggests that the claim is justifiable on the basis of legitimate expectations for appointment
There is no specific plea or evidence to support any such contention
Whatever expectations might have arisen from the letters of the third defendant they could not have in law given rise to any right enforceable by specific performance
For all these reasons we hold that the plaintiff s suit for mandatory injunction on the facts of the case was rightly dismissed by the trial court and wrongly decreed by the first Appellate Court and the High Court
We set aside the decrees of the High Court and the first Appellate Court and restore that of the trial court
The plaintiff s suit shall accordingly stand dismissed and the defendants  appeal allowed with costs throughout
NPV Appeal allowed


Summary:
The respondent field a suit against the appellant for recovery of possession of a building on the ground of wilful deflault in payment of rent which was Rs 900 per month
The appellant denied the relationship of landlord and tenant claiming himself as one of the associates or co sharers or co owners of the building
The Munsif decreed the suit and the decree was affirmed in appeal by the first appellate court as also by the High Court
Hence the present appeal
During the pendency of the present appeal cl
ii of section 30 of Tamil Nadu Buildings Lease and Rent Control Act 1960 which exempted from application of the Act premises the monthly rent in respect of which exceeded Rs 400 and on the basis of which the suit giving rise to the present appeal emanated was struck down in a judgment by this Court
 The appellant contended that as a result of the declaration by this Court of the constitutional invalidity of clause ii of section 30 of the Act 311 which excluded from the purview of the Act any building or part thereof let out on a monthly rent of Rs 400 the decree of the civil court became null and void and of no effect
On behalf of the respondent it was submitted that the decree passed by the civil court was not a nullity for the Act did not bar the jurisdiction of the civil court but only prohibited execution of a decree of eviction otherwise than in accordance with the relevant statutory provision and that such a decree was not void but was merely under an eclipse and would become executable as and when the bar is removed
Allowing the appeal this Court HELD 11 Section 10 of Tamil Nadu Buildings Lease and Rent Control Act 1960 prohibits jurisdiction of the civil court in respect of eviction of a tenant whether in execution of a decree or otherwise except in accordance with the provisions of that section and sections 14 to 16
The sole circumstance and the condition precedent to the exercise of jurisdiction by a civil court as stated in second proviso to section 101 is that the tenant should have denied the title of the landlord or claimed right of permanent tenancy and the Controller on such denial or claim by the tenant reaches a decision and duly records a finding that such denial or claim was bona fide and only when these conditions are satisfied jurisdiction of the civil court can be invoked to pass a decree for eviciton on any of the grounds mentioned in section 10 or sections 14 to 16
Except to this limited extend the jurisdiction of the civil court is completely barred and the same is vested in the tribunals set up under the Act
Any suit instituted by a landlord for eviction of a tenant from a building falling within the ambit of the Actotherwise than as stipulated by the section is therefor incompetent for lack of jurisdiction of the court and any decree of the court in such a suit is null and void and of no effect
317D E G H 318 DG H Sushil Kumar Mehta vs Gobind Ram Bohra 1990 1 SCC page 193 referred to
12 The decision of the Controller is concerned solely with the bona fides and not the correctness or validity of the denial or claim for these difficult questions of title are by the statute reserved for decision by the appropriate civil court which is the more competent forum in such matters
318D E Magiti Sasamal vs Pandab Bissoi1962 3 SCR 673 referred to
13 If the decision of the Controller is that tenant s denial or 312 claim is not bona fide the jurisdiction of the civil court cannot be invoked by the landlord and the Controller will then be the competent authority to order eviction after affording the parties a reasonable opportunity of being heard on any one of the grounds specified under the statute including the ground that the tenant has without bona fide denied landlord s title or claimed right of permanent tenancy318E F 14 Although the Act contains no express bar of jurisdiction of the civil court its provisions explicitly show that subject to the extraordinary powers of the High Court and this Court such jurisdiction is statute for eviction of tenants in execution or otherwise
The provision of the Act are clear and complete in regard to the finality of the orders passed by the special tribunals set up under it and their competence to administer the same remedy as the civil courts render in civil suits
Such tribunals having been so constituted as to act in conformity with the fundamental principles of judicial procedure the clear and explicit intendment of the legislature is that all questions relating to the special rights and liabilities created by the statute should be decided by the tribunals constituted under it
317A C Dhulabhai Ors
vs The State of Madhya Pradesh  Anr
   Secretary of State vs Mask  Co 1939 40 IA 222 PC Raleigh Investment Co Ltd vs Governor General in Council 1946 47 IA 50 PC and Barraclough vs Brown  Ors  referred to
In the instant case the procedure stipulated in the second proviso to section 10 had not been complied with
At the time of institution of the suite the building in question did not come within the ambit of the Act owing to the exclusionary provision contained in cl
ii of section 30 but after leave to appeal was granted the applicability of the Act was extended to the building by reason of the decision of this Court declaring the invalidity of cl
ii of section 30 on account of its inconsistency with Article 14 of the Constitution
Whatever be the consequences of that declaration whether it has rendered the statutory provision null and void and of no effect or merely inoperative unenforceable and dormant to be revitalised on subsequent removal of the constitutional ban in either event the civil court acting without the aid of the exclusionary provision in cl
ii of section 30 during the period of invalidityhad become coram non judice and its proceedings resulting in the decree a nullity
319A D 313 Ratan Arya  Ors
vs State of Tamil Nadu  Anr
   referred to
Kiran Singh  Ors
vs Chaman Paswan  Ors  relied on
VB Patankar  Orsv
CG Sastry   held inapplicable
Behram Khurshed Pesikaka vs State of Bombay  Saghir Ahmad vs State of UP and Ors   Bhikaji Narain Dhakras  Ors
vs The State of MP
The State of AP  Anr   referred to