ORDER
1. This Revision under S. 115; of the Civil P.C. is by the defendant in Original Suit No. 80 of 1085 on the file of the Munsiff Chickmagalur. It is directed against the order of the civil Judge, Chickmagalur in Miscellaneous Appeal No. 11 of 1985 setting aside the order of the trial court and granting temporary injunction restraining the defendant from removing the cut-timber from the private forest area.
2. Briefly stated the facts leading to the suit are as follows –
Plaintiff had an agreement with the owners of the private forest by which it standing timber either exploiting it by himself or by calling upon somebody to exploit on his behalf. With that agreement, he entered into another agreement with the defendant by which the defendant agreed to pay certain scenes in a phased manner on the occurring of certain events specified in the terms of the agreement by which he was to cut and remove timber after making the payments. That the defendant has made some of the payments numerated in the agreement to the plaintiff is not in dispute. After taking the first three payments, the fourth payment was required to be made in the sum of Rs.5, 00,000/-. That amount was not paid by a specified date. Therefore, the plaintiff approached the Court with a relief that the defendant be restrained from removing the cut timber lying on the suit schedule land and during the pendency of the suit, a. temporary injunction may, in that behalf, be granted The trial court on examining the terms of the agreement and the contentions advanced before it, came to the conclusion that the plaintiff and the owners of the private, forest, had obstructed the defendant and therefore, he was justified in not making the payment of Rs.5,00,000/-and as such, the plaintiff was not entitled to temporary injunction. The aggrieved plaintiff on appeal has succeeded in getting that order set aside. The appellate court has taken a slightly different view of the suit agreement and the terms contained therein. On the admitted facts, it has come to the conclusion that there was no way by which it could be inferred that the plaintiff had obstructed in any manner, the defendant, in exploiting the forest in the manner provided in the agreement. It has also applied the test of balance of convenience in granting or refusing the temporary injunction before setting aside the order of the learned Munsiff and itself granting temporary injunction in favour of the plaintiff. It is, in these circumstances, the defendant has approached this Court inter alia contending
(1) That the appellate court ought not to interfere with the order of the trial court in matters granting or refusing injunction unless it is shown ex-facie that the order under appeal is either perverse or based on no evidence or is contrary to the evidence on record,
(2) That on the facts, the case of the parties in the suit, the defendant was protected by S. 14 Li b, of the Specific Relief Act as well as by S. 41(e) of that Act;
(3) That the appellate court misconstrued ‘the terms of the agreement in not noticing the importance of Cls. (.3) and (7) of the terms of the agreement between the parties.
3. Mr. Narasimha Murthy has strenuously contended that on the admitted facts, the appellate court ought not to have interfered with the order of the trial court. True, that numerous cases have laid down the broad principles restraining the appellate courts jurisdiction to interfere with an order of the trial court in matters granting or refusing injunction. But, at the same time, those principles are no more than broad guidelines which restrict the scope for interference, but does not prevent interference and all such guidelines and principles thought to be applied to the facts of every case that c0lne.s before the Court, but not uniformily irrespective of the facts. One cannot quarrel with the authorities cited by Mr. Narasimha Murthy. But the question is, was there scope for appellate court to interfere. The trial court clearly laid emphasis on Cl. (7) of the agreement in question. Clause (71 of the agreement is as follows: –
“7. If for any reason, for no fault of the first party he is prevented from cutting and transporting the timber covered by this agreement by the owners of the Estate, the first party under this agreement shall be entitled for reimbursement of any loss that may be caused to him by the second party under this agreement either by way of liquidated damages or by suitable adjustment in the installments schedule.”
What the trial court overlooked was that there was no) privity of contract between the owners of the Estate and the plaintiff and defendants, the defendant being the first party. Did the owners offer to remove such obstructions if any the only obligation under the agreement the second party, the plaintiff had . But the case made out by the defendant was that obtaining of passes by second party the plaintiff, was delayed and therefore the fourth payment in the schedule of payment was liable to be withheld. Now, that has nothing to do with Cl. 7 under the agreement. Beyond general assertions that the plaintiff and his principals, the owners of the forest had commenced some proceedings and caused delay in the defendants-first party to this agreement realizing fruits of his contract. There was no specific averment beyond the assertion that delay in schedule of payment was governed by Cl. I of the agreement, which provided for re-schedule in the cases there was delay in obtaining, pass from the forest department. The trial court completely lost sight of this and laid stress as if the defendant had already suffered losses. Now it would be strange for trial court to come to the conclusion in a plaintiffs suit that defendant already suffered losses and therefore, was entitled not to be restricted by any injunction. Though the appellate court has not termed it perverse, I would not hesitate to do so. In such circumstances, if the appellate court has interfered with the finding, I would not find fault with it. Next, I need consider only the two legal arguments advanced by Mr. Narasimha Murthy i.e., one based on S. 14(1)(b) and other S. 41(e) of the Specific Relief Act. S. 14(1)(b) reads as follows: –
“14(l) The following contracts cannot be specifically enforced namely: –
xx xx xx xx
(b) a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature, is such, that the court cannot enforce specific performance of its material terms.”
4. Crux of the argument advanced by Mr. Narasimha Murthy is that the suit agreement is one which depends on the volition of the parties and therefore not enforceable and if it is not enforceable, then S. 41(e) would come into operation. The fallacy in the argument is to term the suit agreement as one, which depends on the volition of the parties. Volition is no more than status of mind the will to do or not to do. Such contracts are usually referable to contracts of personal service where a particular quality ‘possessed by a person for which the contract is entered into, depends upon his willingness or the state of mind like, singing, dancing, teaching etc, which, if specifically enforced, may lead to results not contemplated in the original contract. That is not the case here. There is no personal volition involved in the performance of the mutual contract of the first and second party under the suit agreement would come remotely resembling it in only obtaining permits of the forest department. That has been done is not in dispute. But it has been delayed is also not in dispute. The delay would entitle the defendant to postpone his schedule of payment under the agreement in accordance with terms contained in Cl. 3 thereof. But that is not the same as finding it within the ambit of a contract depending on the personal volition as contemplated under S. 14(l)(b). If S. 14(0)(b) is not attracted, then the test of S. 41(e) must necessarily fail. What S. 41(e) mandates is that an injunction cannot be granted to prevent the breach of a contract, the purpose of which would not be specifically enforced. But on a perusal of the agreement in question, I am satisfied that the defendant, at all times, could and-perhaps would, enforce the contract if the need arose. The fact is the contract has been partly performed and is not in dispute. Some timber and bamboos had been cut and removed. The first three payments in the schedule have been made admittedly. If there was obstruction either by the second party the plaintiff or his principal owners, the obstruction shall be removed by appropriate civil or criminal action. Therefore, to say that under the terms of the agreement the contract is one which would not be enforced by court, would not be correct. In that view of the matter, the appellate court has taken the correct view and granted temporary injunction without which the plaintiff, the second party under the agreement, would be left high and dry if the cut timber is removed without making the fourth schedule payment though in equity, the defendant would be entitled to pay lesser amount that contracted, on account of the short-fall in the number of trees for which failing permit has been obtained. Subject to the above observation, this Revision Petition is dismissed as devoid of merit for the reasons given.
5. Petition dismissed.