- (1.) ARUN Tandon, J. Heard Sri Arvind Srivastava on behalf of the petitioner and Sri Navin Sinha Senior Advocate, assisted by Sri Yashwant Verma, on behalf of the respondent.
(2.) PETITIONER Sri Gazanand Sharma, who was employed as Junior Account Officer in the employment of Hindustan Coca-Cola Beverages Pvt. Ltd. , Sigra, Mahmoorganj Road, Mahmoorganj, District Varanasi, filed Original Suit No. 807 of 2001. The relief prayed for in the said suit read as follows: " (a) That by means of a decree of permanent prohibitory injunction, the defendant, their servants, officers and representatives be restrained from putting any obstruction, interference in the working and functioning of the plaintiff as Manager Finance in the factory of defendant No. 1 and they be also restrained from dismissing, terminating, removing the plaintiff from his service without complying the principle of natural justice, any style of manner. (b) That by means of a decree of permanent mandatory injunction, the defendant be directed to pay the actual salary package prescribed to the grade of the plaintiff in its right letter and sprit and they be also directed not to withhold any item of the salary package in any style of manner. (c) That cause of the suit be levied against the defendant. (d) That any relief also be granted to the plaintiff of which plaintiff is found entitled in the eye of this Hon'ble Court. " Alongwith the plaint allegations the plaintiff filed an application for grant of temporary injunction under Order XXXIX C. P. C. On behalf of the defendant preliminary objection was filed with regards to maintainability of the suit and amongst other it was contended that the contract of employment between the petitioner and the respondent stood terminated in accordance with the terms of the contract vide letter dated 10th February, 1999. It was therefore contended that the suit as filed by the plaintiff petitioner for injunction virtually amounts for grant of relief for enforcement of a contract which by its very nature is determinable and in fact was determined. Further a contract which involves performance of continuous duty cannot been enforced in view of the provisions of Section 14 of the Specific Relief Act. It was further submitted that temporary injunction as prayed for by the plaintiff was hit by the provisions of Order XXXIX Rule 2 as amended in the State of U. P. and Section 41 (41) (E) of Specific Relief Act. Lastly the temporary injunction prayed by the plaintiff cannot be granted in view of Section 41 (41) (E ).
(3.) THE trial Court after hearing the parties by means of the order dated 20-11-2001 rejected the temporary injunction application. Feeling aggrieved by the aforesaid order of the trial Court, the plaintiff filed first appeal from order, which was registered as Misc. Appeal No. 175 of 2001. THE XI Additional District and Sessions Judge, Varanasi by means of the judgment and order dated 21th February, 2003 dismissed the appeal so filed by the plaintiff. THE aforesaid two orders have been challenged by means of the present writ petition. On behalf of the petitioner it is contended that both the Courts below have failed to take into consideration (a) that the rights of the parties are to be determined on the basis of the facts as were existing on the date the suit was instituted (b) the order terminating the contract of employment was null and void and therefore liable to be ignored inasmuch as necessary one month notice/salary in lieu thereof had not been paid to the petitioner before terminating his employment, (iii) in the facts of the case, damages in terms of money cannot be said to be adequate compensation inasmuch as the entire family and future progress of the children of the petitioner will be jeopardized in case he thrown out of employment.;