IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 26TH JUNE 2008 / 5TH ASHADHA 1930 WP(C).No. 7984 of 2008(A) ------------------------- CMA.34/2007 of ADDL. DISTRICT COURT, PATHANAMTHITTA .................... PETITIONER: ------------ M.S. NATARAJAN, S/O. SANKARAN, RESIDING AT MUDITHARAYIL HOUSE, KAITHAKODI MURI, AYROOR VILLAGE, RANNI TALUK. BY ADV. SRI.V.CHITAMBARESH (SR.) SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENTS: ------------- VASUDEVAN, S/O. KARUNAKARAN, RESIDING AT PULIPLACKAL KALAYIL HOUSE, ANGADI VILLAGE, RANNI TALUK. BY ADV. SRI.ABRAHAM SAMSON FOR R1 SMT.LOVELY SAMSON FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WP(C) 7984/2008) PETITIONER'S EXTS. EXT.P1 TRUE COPY OF THE COMMON ORDER IN I.A.113 OF 2007 AND 194 of 2007 IN O.S.15 OF 2007 ON THE FILE OF COURT OF MUNSIFF OF RANNY DATED. 9.4.2007. EXT.P2 TRUE COPY OF THE JUDGMENT IN CMA 34 OF 2007 ON THE FILE OF THE DISTRICT JUDGE OF PATHANAMTHITTA DTD. 4.12.2007. lgk M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No. 7984 OF 2008 ............................................ DATED THIS THE 26th DAY OF JUNE, 2008 JUDGMENT Petitioner is the defendant and respondent, the plaintiff in O.S.15 of 2007 on the file of Munsiff Court, Ranni. Suit was one for injunction. The plaint schedule property belongs to the petitioner. It is a Rubber Estate. Petitioner and respondent admittedly entered into an agreement on 12.1.2006, whereunder respondent was permitted slaughter tapping of rubber trees for two years and thereafter to cut and remove the rubber trees for a total consideration of Rs.3,85,000/-, out of which Rs.1,00,000/- was paid at the time of the agreement and Rs.50,000/- was to be paid on or before 30.1.2006 and out of the remaining balance, Rs.1,17,500/- was to be paid on or before 12.1.2007 and the remaining Rs.1,17,500/- before cutting and removal of the rubber trees. Respondent admittedly paid Rs.1,50,000/-, which should have been paid on or before 30.1.2006. But on or before 12.1.2007, Rs.1,17,500/- was not paid. According to the respondent, he approached petitioner and offered to pay the amount in the evening of 12.1.2007, but petitioner refused to receive the same. According to petitioner, respondent failed to WP(C) 7984/2008 2 pay the amount and therefore he sent a notice dated 13.1.2007, terminating the contract. The suit was instituted thereafter. I.A.113 of 2007 was filed by the respondent under Order XXXIX Rule 1 of Code of Civil Procedure, restraining petitioner from causing any obstruction to his rubber tapping. 2. I.A.194 of 2007 was filed by petitioner seeking an order of injunction under Order XXXIX Rule 1 of Code of Civil Procedure, restraining respondent from trespass. As per common order dated 9.4.2007, learned Munsiff dismissed I.A.113 of 2007 holding that remedy of the respondent is to seek damages or for specific performance of the contract. Holding that respondent is not entitled to conduct slaughter tapping subsequent to the termination of the contract, an order of injunction was granted in favour of the petitioner. Petitioner filed CMA 34 of 2007, challenging the order in I.A.113 of 2007. Under Ext.P2 order, learned District Judge set aside the order of learned Munsiff in I.A.113 of 2007 and permit respondent to deposit Rs.1,17,500/- within seven days from the date of the order holding that if he fails to do so, the order dismissing his petition for injunction would stand and on deposit, he is entitled to the order of injunction in I.A.113 of 2007. Learned District WP(C) 7984/2008 3 Judge vacated the order in I.A.194 of 2007. Petitioner was also directed to pay a cost of Rs.1000/-. This petition is filed under Article 227 of Constitution of India, challenging Ext.P2 order. 3. Learned senior counsel appearing for petitioner and learned counsel appearing for respondent were heard. Learned senior counsel argued that when the agreement between the parties was terminated by notice dated 13.1.2007, and learned Munsiff rightly found that remedy of respondent is only to claim damages and learned District Judge was not justified in granting an order in favour of respondent and that too, by permitting respondent to deposit Rs.1,17,500/- within seven days from the date of that order. It was argued that by the said order, District Court has created a new contract between the parties, without the consent of the petitioner and Ext.P2 order is to be quashed. Learned senior counsel also pointed out that petitioner should have filed two separate appeals challenging the orders in two applications and CMA 34 of 2007 could only be treated as an appeal against the order in I.A.113 of 2007 and if so as the order in I.A.194 of 2007 was not separately challenged, that order would operate as res judicata in challenging the order in I.A.113 of 2007. WP(C) 7984/2008 4 4. Learned counsel appearing for respondent argued that the contract is not for any personal service but to enable respondent slaughter tapping for two years and thereafter to cut and remove rubber trees and respondent has performed his part of the contract and even though respondent was prepared to pay the amount due on 12.1.2007, petitioner did not receive the same and after 12.1.2007, a notice was sent by respondent, terminating the contract, which is invalid and therefore respondent is entitled to enjoy the benefit available to him under the contract and learned District Judge rightly permitted respondent to enjoy the benefit under Ext.P2 reasoned order and it cannot be interfered by this court in exercise of the powers of this court under Article 227 of Constitution of India. Learned counsel also argued that respondent has deposited Rs.1,17,500/- as directed by District Judge and claim for damages cannot be an appropriate remedy for respondent as damages cannot be quantified as value of the rubber is fluctuating and in such circumstances, there is no reason to interfere with Ext.P2 order. 5. The agreement admittedly executed by the parties on 12.1.2006 permits respondent to slaughter tap the rubber trees for two years and thereafter to cut and remove the rubber trees. WP(C) 7984/2008 5 But that privilege was given to respondent, subject to the payment of the amount provided thereunder. Admittedly respondent paid Rs.1,00,000/- on the date of execution of the agreement and also paid Rs.50,000/-, which is to be paid on or before 30.1.2006. Admittedly, second instalment of Rs.1,17,500/-, which should have been paid on or before 12.1.2007 was not paid. There is a dispute whether respondent offered to pay the same in the evening of 12.1.2007 as claimed by respondent or respondent failed to pay the amount at all. That is a matter which can be decided in the suit and that too on evidence. Whatever be the case, it is admitted case that there was no payment of Rs.1,17,500/- as provided under the agreement on or before 12.1.1007. It is also admitted case that thereafter, petitioner sent a notice, terminating the contract as per notice dated 13.1.2007. The question of validity of notice is also not to be decided at this stage. The question is what is the remedy of the respondent, who was permitted slaughter tapping of rubber trees for two years and had to cut and remove the rubber trees thereafter. As per the contract period of agreement is from 12.1.2006 to 12.1.2008. Even that period expired subsequent to the filing of the suit. In such circumstances, the WP(C) 7984/2008 6 question whether respondent is to be permitted to cut and remove the trees as it would be the consequence if Ext.P2 order is to be upheld. When a contract is broken, respondent is entitled to claim damages. I cannot agree with the submission of learned counsel that there is no possibility of quantifying the damages, if any. In such circumstances, as found by the learned Munsiff, remedy of respondent is to claim damages. He cannot be permitted to cut and remove the trees at this stage. Ext.P2 order is therefore quashed. Consequently respondent is not entitled to trespass into the property or slaughter tap rubber trees or to cut and remove the trees as sought for. Respondent is at liberty to withdraw the amount deposited before the court, if so advised or to claim damages, if he is otherwise entitled to. M.SASIDHARAN NAMBIAR, JUDGE lgk/-