GENU GANAPATI SHIVALE Vs. BHALCHAND JIVRAJ RAISONI

JUDGEMENT

(1.) The original defendant No. 1, Shri Narayanrao Raghunathrao Tulshibagwale, is the Managing Trustee of Shri Ramji Sansthan, Tulshibag, Pune. The above trust has a right to take sand from the bed of the river Bhima in the limits of village Wadav Khurd which belongs to the Trust. On or about 25th August, 1962, the trustees of the above trust passed a resolution, which is at Ext. 106, under which they decided to give to defendant No. 2, Shivale, a contract from year to year for the removal of sand from the bed of the Bhima river at a minimum contract price of Rs. 3,501/-. The first defendant, who was the Managing Trustee, was authorised to enter into contracts with defendant No. 2 pursuant to this resolution. It is the case of defendant No. 1 that for the period 1st August, 1965 to 31st July, 1966, defendant No. 2, Shivale, agreed to pay Rs. 12,000/- as a consideration for the right to remove sand from the bed of the Bhima river. In the month of April, 1965, defendant No. 2 paid to defendant No. 1 Rupees 1,000 /- as and by way of earnest. According to defendant No. 1, however, defendant No. 2 did not pay the balance amount of Rs. 11,000/-by May, 1965 as was agreed upon between the parties. On or about 17th July, 1965, defendant No. 1 gave a notice to defendant No. 2 terminating the contract and sent to him a cheque for Rs. 1,000 /-. Thereafter, on or about 24th July, 1965, defendant No. 1 entered into an agreement with the plaintiff whereby for a consideration of Rs. 8,000/-paid by the plaintiff to defendant No. 1, the plaintiff was given the right to remove sand from the bed of the Bhima river from 1st Aug., 1965 to 3ist July, 1966. On 25th of July, 1965, defendant No. 2 gave a public notice and on 29th July, 1965 he filed Regular Civil Suit No. 594 of 1965 in the Civil Court, Pune, against defendant No. 1 for an injunction restraining defendant No. 1 from obstructing defendant No. 2 in removing the sand from the bed of the Bhima river during the period 1st August, 1965 to 31st July, 1966. The plaintiff was subsequently joined as a party to this suit by defendant No. 2. In this suit, an ex parte ad interim injunction was granted by the Court on or about 30th July, 1965, whereby the plaintiff was prohibited from obstructing defendant No. 2 in removing sand from the bed of the Bhima river. This injunction order was served on the plaintiff on the next day, that is to say, on 31st July, 1965. This ad interim injunction was vacated by the Court on 26th March, 1966 after hearing both the parties. Defendant No. 2 filed an appeal from this order, being Appeal No. 27 of 1966. On 28th March, 1966, an ad interim injunction was obtained by defendant No. 2 against the plaintiff in terms similar to the injunction obtained from the trial Court. However, the ad interim injunction was vacated on 10th June, 1966 after hearing the parties and the appeal was dismissed. On or about 19th Sep., 1966, defendant No. 2 withdrew the suit because the contract period in respect of which there was a dispute between the parties had come to an end.

(2.) It is the case of the plaintiff in the present suit that as a result of the injunctions obtained by defendant No. 2 in Civil Suit No. 594 of 1965 and in Appeal No. 27 of 1966, the plaintiff could not reap the benefit of the contract which he had entered into with defendant No. 1 on 24th July, 1965. He has claimed from the defendant damages which he has valued at Rs. 11,000/-made up of Rs. 8,000 /- paid by the plaintiff to defendant No. 1 as the consideration under the contract and Rs. 3,000/-as and by way of loss of profit. Although the injunction against the plaintiff was vacated on 10th June, 1966, it is the case of the plaintiff that he could not remove any sand from the bed of the Bhima river from 10th June, 1966 to 31st July, 1966 because of the intervening monsoon. Hence it is his case that he has been effectively prevented by defendant No. 2 from exercising his contractual right. He, therefore, claims the above damages.

(3.) The suit of the plaintiff was decreed by the trial Court which accepted the plaintiff's case. The trial Court came to the conclusion that the agreement between defendant No. 2 and defendant No. 1 had been validly terminated and that there was a valid and subsisting agreement between the plaintiff and defendant No. 1. The plaintiff, however, could not carry out the agreement on account of the injunctions obtained by defendant No. 2. Hence the trial Court awarded to the plaintiff damages of Rs. 11,000/-which the plaintiff is entitled to recover from defendant No. 2. The plaintiff's suit against defendant No. 1 has been dismissed. From this decision, the present appeal has been filed by the original defendant No. 2.