BURN AND CO LD Vs. COLIN MC DONALD

JUDGEMENT

(1.) The plaintiffs in this case are a firm of Engineers in the neighbourhood of Calcutta, and the defendant entered into a contract with them to act as a draughtsman and general assistant in their business at Howrah. That agreement was reduced into writing. It is dated the 27 of July, 1904, and was made in England; the defendant was then in England, and he came out here, the plaintiffs paying the expenses of his passage out. By that agreement he covenanted that on his arrival at Calcutta he should "at once report himself at the said Engineering Works at Howrah aforesaid and enter upon his duties aforesaid and during the said period of this agreement he should, diligently and to the best of his ability, devote himself to the duties incumbent on him as aforesaid and should faithfully observe and comply with such instructions as he might from time to time receive from the said Messrs. Burn & Co., Ld., or their authorised representative for the time being." There are other provisions in the contract, namely, as to the conditions upon which the defendant might be dismissed by Messrs. Burn & Co., but they are not material. In the 12 paragraph both parties bound and obliged themselves to perform their respective parts of the promises to each other under the penalty of one hundred pounds to be paid by the party failing to the party performing or willing to perform over and above performance." In accordance with the terms of that agreement, the defendant came out from England and entered upon his duties as an assistant with Burn & Co. and ho seems to have discharged those duties very satisfactorily, I find nothing to the contrary, for some three and a half years. But on the 18 of February 1908, he wrote to his employers a letter, the effect of which was that ho proposed to resign and leave that employment on the 15 of March next. To that Messrs. Burn and Co. replied that "they declined to accept the resignation and gave him notice that they would take legal steps to enforce the terms of his agreement with them." We need not refer further to the correspondence in detail. It is sufficient to say that early in March, on the pretext that the plaintiffs had refused to pay him his February salary, the defendant left the firm's service and took employment with the firm of Raja Sreenath Roy and Brothers. The plaintiffs then instituted this suit, and asked for damages and for an injunction to restrain the defendant from serving, working or being employed by the said Raja Sreenath Roy and Brothers or any person or persons other than the plaintiff company." I ought to have said that the agreement was to last for five years, which expired on the 13 of October 1909.

(2.) The matter was tried before Mr. Justice Fletcher, and he refused to grant an injunction; he gave the plaintiffs Rs. 30 by way of damages and no costs of the suit. In fact he ordered the plaintiffs to pay the costs of an application for an interlocutory injunction. The plaintiffs have appealed.

(3.) There is no dispute as to the facts; and I will deal as shortly as 1 can with the legal points which have been raised. It is suggested that in a case of this sort, the Court ought not to grant an injunction, that the question of granting or refusing an injunction is one which lies in the exercise of the judicial discretion of the Court, and that in a case such as the present it ought not to be granted. We have been referred to the law in England on the subject. The law of England no doubt is that a mandatory injunction will not be granted for the specific performance of a personal service--but ever since the day of Lumley V/s. Wagner (1852) 16 Jur. 871; 1 DeG.M. & G. 604 (at p. 615) which is a decision now some 50 to 60 years old, it has been laid down that, although the Court cannot grant a mandatory injunction to that effect yet where in the agreement there is a negative clause, that is to say, a clause to the effect that the contracting party will not serve anybody else, effect can be given to that and an injunction granted. In the present contract there is no such negative condition in terms. But, although I do not think that authorities in England are very useful to us, in dealing with questions codified by the law of India, I should like to call attention to the observations of Lord Selborne, then Lord Chancellor sitting as Master of the Rolls, in the case of Wolverhampton and Walsall Railway Co. V/s. London and North-Western Railway Company (1873) L.R. 16 Eq. 433,440. The passage I propose to read is at page 440. This is what this great Judge says: With regard to the case of Lumley V/s. Wagner (1852) 16 Jur. 871; 1 DeG.M. & G. 604 (at p. 615), to which reference was made, really when it comes to be examined, it is not a case which tends in any way to limit the ordinary jurisdiction of the Court to do justice between parties by way of injunction. It was sought in that case to enlarge the jurisdiction on a highly artificial and technical ground and to extend it to an ordinary case of hiring and service, which is not properly a case of specific performance, the technical distinction being made, that if you find the word not "in an agreement I will not do a thing" as well as the words I will," even although the negative term might have been implied from the positive, yet the Court, refusing to act on an implication of the negative, will act on the expression of it. I can only say, that I should think it was the safer and the better rule, if it should eventually be adopted by this Court, to look in all such cases to the substance and not to the form. If the substance of the agreement is such that it would be violated by doing the thing sought to be prevented, then the question will arise, whether this is the Court to come to for a remedy. If it is, I cannot think that ought to depend on the use of the negative rather than an affirmative form of expression. If, on the other hand, the substance of the thing is such that the remedy ought to be sought elsewhere, then I do not think that the form ought to be changed by the use of a negative rather than an affirmative."