Decided on January 28,1970



SABYASACHI MUKHERJI. J. - (1.) On the 17th February, 1964 Baijnath Sarda, the respondent herein, instituted. Title No. 5 of 1964 in the 6th Court of the Subordinate Judge, Alipore against the Union of India and the Chief Operating Superintendent, South Eastern Railway. The plaintiff's case as made in the plaint, is as follows:- The plaintiff is a mine owner and deals in minerals ores which he dispatches to various places in and outside India and that he was given a private siding of 200 ft. at Noamundi on the South Eastern Railway for the purpose of handling of Wagons meant for the dispatch of his goods. The plaintiff further stated that on an application being made on or about 8th April, 1959 for an extension of the said siding by at least 1000 ft. or more the defendants namely, the petitioners herein, had granted an extension by 250 ft. the plaintiff has asserted that the Railway Administration had agreed to extend the said siding by 650 ft. for which the plaintiff deposited necessary costs of preparation of plan and estimate but the said extension had not been granted. On the 19th of August, 1963 the Railway Administration issued a notice upon the plaintiff intimating that the said siding which had been exclusively allotted to the plaintiff would be thrown open to the plaintiff would be thrown open to the public within six months from the date of the notice, that is to say, from the 18th February, 1964. The plaintiff has further alleged that the extension of the siding was made at his own cost and if the said siding is not kept for his exclusive use and possession, his business would suffer. Since the Railway did not complete the construction to the extent of 650 ft. the plaintiff claims that the plaintiff is entitled to sue for specific performance of contract and/or damages and he reserved his right to institute a separate proceeding in respect of the same. In the context of the controversy that has to be resolved in the present rule, it is necessary to set out certain averments made in the plaint. Paragraphs 26 and 27 of the plaint are in the following terms:- ?26. The defendants' action in serving the said notice and/or in attempting to interfere with the plaintiff's aforesaid right to carry on business by stopping their siding is illegal, ultra vires and not according to law and the said illegal act has caused serious apprehension of invasion of plaintiff's legal rights and the plaintiff submits that unless the said act is restrained by appropriate injunction the plaintiff will suffer irreparable loss and damage. The matter is of very great urgency inasmuch as the loading of the plaintiff's wagons is essential for immediate supply to the ships due to immediate supply to the ships due to arrive at the Calcutta Port and failure on the part of the plaintiff would dislocate the entire contracts both inland as well as overseas. 27. That the cause of action for the suit arose on 19-8-63 and day to day there after the date on which the defendant No. 2 issued the impugned letter within the jurisdiction of this court at Garden Reach, the principal Office of the defendant No. 1 P.S. Matiaburuz Garden Reach Dist. 24-Paraganas.?
(2.) On the basis of the above averments the plaintiff has prayed for decree for permanent injunction restraining the defendants from giving effect to the notice dated 19th August, 1963 and from doing any act in implementation of the said letter dated 19th of August, 1963, for temporary and interim injunction on the lines indicated above and other necessary consequential reliefs.
(3.) After the institution of the suit the respondent filed an application on the 16th of February, 1964 under Order 39, Rule 2 of the Code of Civil Procedure for temporary injunction restraining the petitioners from taking over the said siding and/or from throwing open to the public the said siding and also restraining the petitioners from giving effect to the notice dated 19th August, 1963 and from doing any act in implementation of the said notice. The learned Subordinate Judge granted an ex parte interim order on the 17th February 1964. The petitioners filed written statement and also objected to the respondent's petition for temporary injunction on, inter alia, the following grounds:- (a) that as no notice had been served under Section 80 of the Code of Civil procedure the suit was not maintainable and as such no relief could be granted to and as such no relief could be granted to the respondent in that suit. (b) that the alleged contract or agreement between the plaintiff and the defendants not having been executed or being made in accordance with law and/or in the form as required under Art. 299 of the Constitution of India or under Section 175(3) of the Government of India Act. 1935 the alleged contract or agreement was neither enforceable in law nor binding on the Union of India. (c) the injunction sought for by the respondent could not be granted in view of Section 56(d) of the Specific Relief Act. (d) that balance of convenience was not in favour of the respondent.;

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