MOHAMMAD MUSTAFA ALI KHAN Vs. DISTRICT BOARD

JUDGEMENT

(1.) This is an application on behalf of an appellant plaintiff asking that defendants be restrained from enforcing a resolution of the District Board of Bareilly dated the 8 March 1933, and that proceedings relating to the handing over of charge be postponed until the disposal of a second appeal filed in this Court. The first defendant is the District Board of Bareilly. On the date in question there was a resolution dismissing the appellant from the post of Secretary of the Board. The case for the appellant is that that resolution was illegal because Section 48 of the District Boards Act requires that all business to be transacted by a special resolution must be notified to the members by a notice setting that business forth, and that this was not done in the present case. Both the lower Courts have dismissed the suit of the plaintiff. The Board has advertised in the papers that the post of secretary is vacant, and has passed a further resolution on the 18th September 1933, that the plaintiff should hand over charge. Now the question is whether the injunction in question can legally issue. Section 56(f) of the Specific Relief Act states: An injunction cannot be granted...to prevent the breach of a contract, the performance of which would not be specifically enforced. Section 21 states : The following contracts cannot be specifically enforced...(b) a contract which runs into such minute or numerous details, or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such that the Court cannot enforce specific performance of its material terms.

(2.) As an illustration to (b) the example is given: A contracts to render personal service to B, and A contracts to employ Bon personal service : B cannot enforce specific performance of these contracts.

(3.) The Specific Relief Act therefore embodies the well known rule of English law that contracts of personal service between a master and a servant cannot be specifically enforced by either party. There are a large number of other examples given in the illustrations to Section 21(b) on this point. The section has been followed in a ruling of a Bench of the Calcutta High Court reported in Ram Chandra Bajpai V/s. Rakhal Das Moolcerjee A.I.R. 1914 Cal. 325 and the discussion of the section is at pp. 33 to 34. In that case there was a deed of trust providing that there should be certain trustees and under their control there should be a superintendent of the trust property. The first superintendent was to be the donor himself, and after his death or relinquishment the superintendent was to be appointed by the trustees. After the death of the donor a superintendent was appointed by the trustees and the trustees eventually dismissed that superintendent. The superintendent brought a suit claiming that be was wrongfully dismissed and asking for an injunction against the trustees. It was held by the Court that the contract of service between the superintendent and the trustees was governed by Section 21(b) of the Specific Relief Act, and an injunction could therefore not be granted in respect of it under Section 54. On p. 33 it is stated: Now a contract of service may be determined by the master, and the only remedy for a wrongful dismissal would be by an action for damages. Suppose the plaintiff refused to serve the defendants, the defendants surely could not compel him to serve them. If the trustees cannot prevent the plaintiff form resigning, he can have no right to compel the trustees to keep him. An agreement to serve cannot be specifically enforced. The relation established by the contract of hiring and service is of so personal and confidential a character that it is evident that such contracts cannot be specifically enforced by the Court against an unwilling party with any hope of ultimate and real success, and accordingly the Court refuses to entertain jurisdiction with regard to them : see Fry on Specific Performance of Contracts, Edn. 5, p. 41.