C.M.LODHA, J. - (1.) THIS is a defendants's second appeal arising out of a suit]for injunction.
(2.) THE respondent -plaintiff the Jaipur Ice and Oil Mills, Company filed the suit through its partner Mahadeo Prashad out of which this second appeal aries on 31 -3 -69 against Kalicharan, his son Hukmichand, his father Ramniranjanlal, his wife Smt. Geenia and his minor son Rajgopal for issuing a permanent injunction restraining the defendants from putting up an ice factory on the disputed land shown in green colour in the plan Ex. 3 and for prohibiting them to do any business on it pertaining to manufacture of ice. The Jaipur Ice Oil Mills Company was originally composed of six partners, viz. Kishenlal, Mahadev Prasad, Satyanarain Kalicharan, Bishamberedas. and Jeewan Prasad and a partnership deed between them was executed on 28 -2 -1947. It started manufacturing ice, oil and soap in Bani Park, Jaipur. Bishamber Das and Jeewan Prasad left this firm on 27 -4 -49 and the rest of the four partners continued the partnership business upto 31 -2 -1958 on which date the firm was dissolved by a dissolution deed Ex. 2. The plaintiff's case is that Kalicharan defendant No. 1 retired from the partnership and was paid Rs. 25,454.02 as his share of the capital invested by him and over and above that he was also paid Rs. 11.001/ - as his share of the price of the goodwill of the firm The firm had acquired a plot of land No. 1 -VII measuring 260' x 325' at Bani Park. Jaipur on a part of which the factory had been constructed. Defendant No. 1 Kalicharan too had constructed a tesidential house on a piece of this land measuring 385' x 83' with his own money and it was agreed between Kalicharan, the retiring partner on the one hand and Kishanlal, Mahadev Prasad and Satyanarain, on the other, (vide Clause 12 of the dissolution deed Ex. 2) that the aforesaid land measuring 325' x 88' and the house standing therein would be the exclusive property of Kalicharan with full rights of sale and mortgage and that Kalicharan would get a boundary wall constructed or have a wire fencing on that piece of land and open a separate door towards the road side but would not have any entrance or exit towards the factory compound. It was also agreed (vide C. 13 of this deed) that Kalicharan would not carry on the same kind of business i.e. ice factory on the land in his possession. It appears that Kalicharan sold a part of the land in his possession measuring 88' x 162' to his father Ramniranjanlal for a consideration of Rs. 3168/ - by a registered sale deed Ex. A/18 dated 12 -1 -1959. By deed dated 11th February, 1959 (Ex. A/23) Ramiranjanlal entered into partnership with Smt. Geenia Bai wife of Kalicharan and Hukmichand son of Kalicharan for carrying on business of manufacturing ice and also admitted Rajgopal Kanodia miner son of Kalicharan to the benefits of partnership. The plaintiff's case is that the defendants 2 to 5 thereafter applied for a licence put up an ice factory on the aforesaid land measuring 88' x l62' in their possession and started making further preparations in this direction. It was alleged that according to the terms of the dissolution deed Ex. 2 the defendants were not entitled to put up an ice factory on this land or to do any other business incidental to it, and, therefore, the plaintiff prayed that the defendant may be restrained a perpetual injunction from putting up an ice factory or, doing any business pertaining to it on the above mentioned land. Kalicharan and Hukmichand filed separate written statements. Both of them took a number of pleas but the only one which survives now in this appeal is as to the effect of Clause 12 and 13 of the Dissolution Deed Ex. 2.
(3.) THE trial court came to the conclusion that Clause 13 of Ex. 2 did not impose unreasonable restraint of trade on the defendant Kalicharan' and his transferees and consequently the defendants were bound by the restrictive covenant, and were not entitled to put up an ice factory on the land in question in pursuance of that clause. On appeal by the defendants, the learned Senior Civil Judge Jaipur City No. 2, affirmed the judgment and decree of the trial Court and consequently the defendant Hukmichand has come in second appeal to this Court.;