- (1.) THIS review application has been filed to review the order dated 01.3.2012 passed by the Court in this First Appeal From Order arising out of an order of ACJM/Additional Civil Judge (SD), Court No. 11, Allahabad dated 21.9.2011, rejecting the application for interim injunction in Original Suit No. 99/2011 (M/s A.H. Wheeler & Co. (P) Limited vs. Shri Kamla Kant Pandey), for handing over the charge of the book stalls at old Delhi Railway Station to the plaintiff-company. In order to appreciate the grounds for reviewing the order, it is necessary to quote the order dated 1.3.2012, which gives the background in which the order was passed with the consent of the parties:- "1. We have heard Sri P.K. Mukerji and Sri Amit Saxena, learned counsel for the appellant. Sri Arvind Srivastava appears for respondent No.1. Ms. Rashmi Singla along with Sri Rajesh Dwivedi appears for applicant-hawkers, seeking impleadment. 2. On 18.01.2012, we passed the following order:- We have heard Shri P.K. Mukerji and Shri Amit Saxena for M/s A.H. Wheeler & Co. Pvt. Ltd.-the plaintiff-appellant and Shri Arvind Srivastava for Shri K.K. Pandey, the defendant-respondent. M/s A.H. Wheeler & Co. Pvt. Ltd. is engaged in carrying on the business of operating railway book stalls as licensee of Government of India at various licensed Railway Station, including the Railway Station Delhi Junction (Old Delhi) Northern Railway, Delhi. It had entered into a contract on 26th May, 2010 with Shri K.K. Pandey, the defendant-respondent, appointing him as agent for the conduct of sale of books, newspapers, periodicals and journals at the appellant's book stalls (M/s A.H. Wheeler & Co. Pvt. Ltd.), and its various units at Delhi Junction (Old Delhi) Railway Station. The contract came into effect from 16.5.2010, with the terms and conditions set out in the indenture. On some disputes having arisen between the parties on the terms of contract in respect of the sale of the books, periodicals etc., M/s A.H. Wheeler & Co. Pvt. Ltd. filed a Civil Suit No.99 of 2011 in the Court of ACJM, Addl. Civil Judge (SD), Court No.11, Allahabad for permanent injunction. By order dated 21.9.2011 the trial court rejected the application for interim injunction, for handing over the charge of the book stalls to the plaintiff company, giving rise to this first appeal. By an order dated 3.1.2011, we had referred the matter to the 'Allahabad High Court Mediation and Conciliation Centre', and fixed the matter for hearing on 17.1.2012. The parties entered into negotiations with the help of the mediators and have arrived at an interim settlement dated 12.1.2012, to prepare inventory and to avoid any hassles, between them, to hand over the charge to the plaintiff-appellant, in presence of the Commissioner authorised by the Court. The parties have agreed to request to the Court to issue appropriate directions for securing the presence of Commissioner and obtaining the assistance of Railway Authorities/ Railway Police/ GRP for restraining/ interference of hawkers in handing over the charge of book stalls etc. and preparation of inventory of the stock of books, magazine, furniture, electrical items attached thereto, counter tables, trolleys and bastas at Delhi Junction (old Delhi Railway Station), Northern Railway, Delhi, to be followed by final settlement of account within the time frame. Shri K.K. Pandey has resigned from the agency on 14.12.2010 and is no longer willing to continue as the agent of M/s A.H. Wheeler & Co. Pvt. Ltd.. He has also agreed to hand over the inventory of stocks of books/ magazines etc. to M/s A.H. Wheeler & Co. Pvt. Ltd. The persons running the stalls, and hawkers appointed by Shri K.K. Pandey as agent of M/s A.H. Wheeler & Co. Pvt. Ltd. have no independent right, as they have been appointed/ employed by Shri K.K. Pandey to sell the publications. In the facts and circumstances and in view of the agreement entered into between the parties, we direct, that Shri K.K. Pandey, the defendant-respondent and his agents/ representatives/ hawkers will hand over the entire stock of books, magazines, furniture, electrical items attached thereto, counter tables, trolleys and bastas at Delhi Junction (Old Delhi Railway Station), Northern Railway, Delhi to M/s A.H. Wheeler & Co. Pvt. Ltd. through its Head of HRD Department Shri S.R. Shukla or any other authorised representatives. We are informed that Shri Gurbachan Singh, Asstt. Commissioner of Police, Railways, Delhi and Shri S.S. Lathia, SHO, GRP, Delhi Main (Old Delhi) Railway Station, Delhi are the police officers, incharge at the Delhi Main (Old Delhi) Railway Station, Delhi, and Shri R.P. Pandey is posted as Senior Station Manager, Delhi Junction (Old Delhi) Railway Station, Northern Railway, Delhi. We accept the prayers, and appoint Shri Raj Nath Shukla, and Shri Vikas Budhwar, Advocates of the High Court at Allahabad to reach Delhi on 30th January, 2011 for preparation of inventory and to hand over of the possession of the book stalls, with all the items described as above, to M/s A.H. Wheeler & Co. Pvt. Ltd. through its Head of HRD Department Shri S.R. Shukla, or other authorised representative. We direct the officers mentioned as above, to provide assistance to them for discharging their duties. The counsels shall be paid AC 1st Class return fair and Rs.25,000/- each. The expenses will be borne by both the parties equally. If they have to stay over for another day, they will be paid Rs.15,000/- each for stay of additional day. The parties will make arrangement for their stay in respectable guest house. They will submit their reports to the Court on 2nd February, 2012. List on 3rd February, 2012, for orders. 3.The Advocate Commissioners, appointed by the Court, have submitted a report on 9.2.2012, in which it is stated that five book stalls, twenty one counter tables and eight trolleys were inspected, their possession was taken, and thereafter inventories were prepared in presence of the representative of the plaintiff-appellant Sri S.R. Shukla. The Station Master and Railway Police helped them in complying with the order of the Court. 4. An impleadment application was filed on 1.2.2012, by 27 hawkers, alleging that all of them except Sri Arun, whose father Sri Chhote Lal was already running a trolley, were engaged by M/s. A.H. Wheeler & Co. Pvt Ltd., through its agent for the last several years; the oldest engagement was made in the year 1961. They were working as hawkers with the plaintiff company, and were thrown out of employment on account of collusive agreement entered into between the plaintiff-appellant and its agent Sri K.K. Pandey, the defendant-respondent. 5. We have referred the matter to the mediation centre. The plaintiff-appellant and defendant-respondent had agreed for taking over possession through the advocate commissioners. A part of the dispute, with regard to settlement of the accounts, is still pending in the mediation centre. We are informed by Sri Amit Saxena, appearing for M/s. A.H. Wheeler & Co., the plaintiff-appellant that the appellant has appointed a new agent, who has, in turn, engaged some new hawkers. 6. Ms. Rashmi Singla submits that the trial court did not grant interim injunction. In the appeal, a collusive agreement has been entered into between the plaintiff-appellant and defendant-respondent, to evict the applicant hawkers, whereas there is nothing against them, nor any allegation of misconduct has been levelled against them. 7. Sri Amit Saxena submits that the appellant is a licencee of railway, which is running book stalls at about 250 Railway Stations across the country. The agents of appellant company arranges the hawkers to provide services of selling published material to the railway passengers. The hawkers do not have agreement with the plaintiff as they were engaged by their agents. The hawkers have no independent rights, flowing from the plaintiff. 8. In order to resolve the dispute, in which interest of 27 hawkers is also involved,, and to avoid depriving livelihood to them, we asked the counsel for the plaintiff-appellant, to make some arrangement to protect their interest. 9. Sri Amit Saxena, expressed some reservations, as the arrangement of selling published material through agents is continuing in almost all the railway stations. We adjourned the proceedings to be taken up after lunch hours to allow the counsel to consult the parties. 10. After consultation with their clients Sri Amit Saxena and Sri P.K. Mukerji appearing for the plaintiff-appellant M/s. A.H Wheeler Co. Pvt Ltd and Ms. Rashmi Singla appearing for the hawkers have come up with a practical solution to resolve the issue. 11. Sri Amit Saxena, appearing for the appellant M/s. A.H. Wheeler & Co instructed by Sri Amit Mukherje, Director of Company, undertakes that they will not make any fresh arrangement to engage new hawkers. They will continue with the arrangement of selling published materials, either by themselves or through their agents by engaging the same 27 hawkers who are the applicants before us and have been impleaded in this appeal. They will be given back their counter tables, trolleys, bastas at the same place (old Delhi Railway Station). The entire inventory items prepared by the Advocate Commissioners will be handed over back to them. They will continue to sell the published material, sourced to them by the plaintiff-company through their agents. 12. Ms. Rashmi Singla appearing for the newly impleaded hawkers has given an undertaking that the hawkers will not sell any material or items, which have not been sourced through the plaintiff company. They will continue to render theirs services for selling such items from their sale counters/trolleys allotted to them; wear uniforms and batches, and will abide by all the terms and conditions which were being followed by them, or put by the railway authorities. 13. We make it clear that we have not adjudicated or decided any issue, nor we have decided the status of the applicant-hawkers in respect of their engagement. It will be open to the plaintiff-appellant, to continue with the arrangement of sale of published material, which is permissible under the licenced agreement with the railways. 14. Ms. Rashmi Singla also undertakes on behalf of the applicant-hawkers that the that the suits filed by them in the District Courts at Delhi or any other proceeding drawn by them, with regard to the present matter, shall be withdrawn by them. 15. With this order passed on the undertaking given by both the parties, the only dispute, which survives is the settlement of accounts between the plaintiff-appellant and Sri K.K. Pandey, the defendant-respondent. We hope that the matter will be settled between them at the mediation centre. 16. List this case on 26.3.2012. 17. The order will be carried out with immediate effect. 18. Let a certified copy of this order be supplied to learned counsel for the parties on payment of usual charges by tomorrow."
(2.) THIS application has been filed to review the order on the following grounds:- "1. Because the alleged undertaking is beyond contractual obligation of the applicant. 2.Because in view of the fact that hawkers are engaged solely by agent, there is no privity of contract between the applicant and hawkers, undertaking to re-engage such hawkers can not be implemented and is incapable of being performed by the applicant. 3.Because undertaking, given by the applicant was to the effect that efforts will be made through the new agent to re-engage the same 27 hawkers. 4.Because the undertaking as recorded in the order dated 01.03.2012 is against the written contractual agreement between the applicant's company and new agent. 5.Because written contractual agreement gives absolute right to the agent to engage as many hawkers of his own choice as per his own business needs and applicant's company has no role in the same. 6.Because the undertaking as recorded in the order dated 01.3.2012 does not convey through intention of applicant and is beyond his contractual right. 7.Because the undertaking recorded is incapable of actual performance at the behest of applicant. 8.Because the applicant is contractually incompetent to give undertaking as recorded in the order. 9.Because the applicant had undertaken only to make efforts through new agent for re-engagement of 27 hawkers." It is submitted by Shri Amit Saxena arguing on behalf of the applicant in presence of Shri P.K. Mukherji, a senior counsel representing the company, that by the order dated 01.3.2012 the High Court had allowed the impleadment application of the 27 hawkers, who were earlier engaged by Shri Kamla Kant Pandey, ex-agent and in order to protect the interest of erstwhile hawkers, had asked the counsel for applicant to make some arrangement to protect their rights. The counsel obtained instructions from Shri Amit Banerjee-the deponent of the affidavit supporting the review petition, on which the deponent had asked the counsel that they would impress upon the new agent to re-engage the same 27 hawkers for sale of published materials. It is stated that after the submission of the report of the Commissioner by which the property of the company was handed over by the Advocate Commissioner to the representative of the company, the company had, in the meantime, appointed one Shri Anand Narain Mishra as its new agent for Old Delhi Railway Station and handed over trolleys, bastas, counter tables etc. along with published material meant for sale to him and he had also commenced his operation w.e.f. 01.01.2012 by making his own arrangement regarding engagement of new hawkers.
(3.) SHRI Amit Saxena submits that in paragraph-11 of the order dated 1.3.2012, it was recorded that the deponent had undertaken not to make any fresh arrangement to engage new hawkers and will continue with arrangement of sale by engaging the same 27 hawkers. The undertaking does not reflect the current position inasmuch as, as has already been stated that the applicant has no role of appointing or engaging hawkers by itself. Under the written agreement, it is purely business discretion of agent to engage as many hawkers of his choice and therefore it is not possible for applicant's company to force the agent to engage particular person or persons as hawkers, but the applicant's company in due deference to the wishes of this Hon'ble Court immediately wrote to new agent to try and engage the same 27 hawkers at the Old Delhi Railway Station. The new agent informed the company by its letter dated 6.3.2012, that the hawkers were not ready to enter into any agreement or contract and do not obey the orders of agent, and that under the contract, he had the sole discretion in appointing hawkers of his choice. In view of the aforesaid, it is apparent that the applicant has taken all measures available to him to protect the interest of erstwhile hawkers, but the undertaking as recorded in the order dated 1.3.2012 needs to be reviewed, and in view of the facts brought on record, the undertaking to the effect that the applicant shall re-engage those 27 hawkers, needs to be deleted from the aforesaid order. Shri Amit Saxena has relied upon Rup Chand Gupta vs. Raghuvansi Private Limited and another AIR 1964 SC 1889 in support of his submission, to dispel the doubts of the court of a collusive agreement to obtain order of the court, that in the circumstances of the case, it cannot be assumed that there was no collusion between the plaintiff-appellant and the defendant. He submits that the hawkers are not employees of the plaintiff-company. The plaintiff-company can appoint any person as agent, who has, under the contract with the plaintiff-company, liberty to engage any number of hawkers. There was no compulsion for the plaintiff-company to engage the hawkers, even if they were working prior to appointment of the defendant as the agent.;