RSA No.1511 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.1511 of 2007 Date of Decision: 10.9.2008 Dr.Narinder Lal Kakkar .....Appellant Vs. State of Punjab and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr.Arun Abrol, Advocate for the appellant. Mr. H.S. Gill, DAG, Punjab for the respondents. ... RAJIVE BHALLA, J (Oral) The appellant by way of this Regular Second Appeal, impugns the judgement and decree dated 25.1.2007, passed by the Additional District Judge, Gurdaspur, partly accepting the appeal filed by the respondents, thus, rejecting his prayer for grant of a mandatory injunction. The appellant filed a suit for declaration praying that he was entitled to the grant of revised pay scale of Rs.14300-18150 to start with Rs.14700/- with effect from 1.1.1996, alongwith arrears of revised pay and further praying that he was entitled to annual increments etc. alongwith all arrears of the increments with compound interest @ 12% p.a. In addition, the appellant prayed for grant of mandatory injunction, directing the respondents to grant the aforementioned reliefs from the date the appellant was entitled to these reliefs. The respondents filed a written statement, pleading that the suit was pre-mature, as the grant of higher scale to the appellant was under consideration. It was submitted that vide order dated RSA No.1511 of 2007 2 14.6.1994, a punishment of stoppage of one increment with cumulative effect was imposed, but later on withdrawn. On the basis of the pleadings, the trial Court framed the following issues :- “1. Whether the plaintiff is entitled to declaration as prayed for ? OPP. 2. Whether the plaintiff is entitled to Mandatory injunction as prayed for ? OPP. 3. Whether the suit is pre-mature ? OPD. 4. Whether the suit is not maintainable ? OPD. 5. Relief.” After a considered appraisal of the pleadings and the evidence adduced,the learned trial Court decreed the suit by grant of a decree for declaration to the effect that the appellant is entitled to the revised pay scale of Rs.14300-18150 with effect from 1.1.1996 alongwith arrears. A decree for mandatory injunction was also passed directing the defendants to grant the revised pay scales w.e.f. 1.1.1996. Aggrieved by the aforementioned judgement and decree, the respondents filed an appeal. The first appellate Court, affirmed the relief of declaration but set aside the relief of mandatory injunction by holding that in view of Section 41(h) of the Specific Relief Act (hereinafter referred to as `the Act'), an injunction could not be granted, when an equally efficacious remedy is available. Counsel for the appellant submits that the first appellate Court committed an error of law in setting aside the relief of mandatory injunction RSA No.1511 of 2007 3 granted by the trial Court. It is submitted that Section 41(h) of the Act, applies to situations, where instead of seeking an efficacious relief i.e. the relief of a declaration, the plaintiff prays for grant of an injunction. Where an injunction is prayed as a consequential or an ancillary relief, Section 41 (h) of the Act would not operate as a bar to this consequential or ancillary relief. The judgement referred to by the first appellate Court, relates to a suit for specific performance and is, therefore, inapplicable. Counsel for the respondents, on the other hand submits that Section 41(h) of the Act, bars the prayer for grant of an injunction, where an efficacious relief is available. It is, therefore, submitted that as the appellant had already prayed for grant of a declaration, the relief for grant of an injunction was barred. The first appellate Court, therefore, rightly set aside the relief for mandatory injunction granted by the trial Court. I have heard learned counsel for the parties and perused the impugned judgement. The substantial question of law that arises for consideration is : “Whether Section 41(h) of the Specific Relief Act would operate as a bar in law in praying for the grant of a relief for a mandatory injunction alongwith a relief for declaration ?” It appears that the first appellate Court, misdirected itself in holding that the relief for mandatory injunction was barred in view of the provisions of Section 41(h) of the Act. Section 41(h) of the Act reads as under :- “41. Injunction when refused - RSA No.1511 of 2007 4 (h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust.” Section 41(h) of the Act, incorporates a salutary principle of law that where an efficacious relief is available, the plaintiff shall not file a suit for grant of an injunction. Section 41(h), however, does not place a bar on a plaintiff, who institutes a suit for declaration from praying for the grant of an injunction, whether mandatory or prohibitory, in addition to or as a consequence of the relief for grant of a declaration. The bar under Section 41(h) would operate, where despite accrual of the cause of action to file a suit for declaration, the plaintiff proceeds to file a suit for injunction, whether mandatory or prohibitory. There can be no quarrel with the proposition set out in the judgement State of Haryana V. Dr.Prem Singh Mann, 1996(3) PLR 799 and relied upon by the first appellate Court, as where the relief for a declaration has accrued, but the plaintiff disguises his prayer for a declaration under the guise of a prayer for a mandatory injunction, such a suit shall not be maintainable. The situation in the instant case is, however, entirely different. The appellant prayed for a relief for declaration and the relief for a mandatory injunction, though, inherent in the relief for a declaration was in addition to or as a consequence of the relief for declaration. The bar contained in Section 41(h) of the Act was, therefore, not applicable. The substantial question of law is, therefore, answered by holding that where the cause of action to claim a declaratory relief has accrued, a plaintiff shall file a suit for declaration and not a suit for a mandatory injunction alone. RSA No.1511 of 2007 5 Where, however, the relief for a declaration is accompanied in addition to or as a consequence of, by a relief for grant of an injunction, mandatory or prohibitory, such an additional or a consequential relief shall not be barred. In this view of the matter, it would have to be held that the first appellate Court committed an error by failing to understand the true import of Section 41(h) of the Act and, therefore, erred in setting aside the trial Court's decree granting a declaration and a mandatory injunction. In view of what has been stated herein above, the appeal is allowed, the judgement and decree of the first appellate Court, insofar as it set aside the judgement and decree for grant of an mandatory injunction is reversed and the judgement and decree passed by the trial Court is restored in its entirety. No order as to costs. 10.9.2008 (RAJIVE BHALLA) GS JUDGE