United India Ins. Ltd. and ors. Vs. Krishna Kant Choudhary - Court Judgment

Excerpt:
civil procedure code, 1908 - section 115, order 39 rules 1 and 2--temporary injunction--trial court dismissed the injunction application of plaintiff-respondent--however appellate court granted injunction order to the effect that petitioner company shall obey the instructions issued for allotment of work to the surveyors bonafidely and shall not treat the plaintiff-respondent discriminately--looking to the nature of work and foundation of claim of plaintiff from instruction dated 18.6.1991, plaintiff cannot claim specific performance of the contract by seeking injunction preventing petitioner-defendant from removing the plaintiff from panel--admitted case of plaintiff that work is to be given by rotation to suit ability and experience of survey or and suitability of surveyor which is judged by allotting authority--held, first appellate court without considering relevant provisions of law and without considering nature of relief sought and its effect wrongly granted injunction in favour of plaintiff which neither court can supervise nor it will avoid multiplicity of proceedings--order of first appellate court granting injunction to plaintiff liable to be dismissed.;revision allowed - - 5. the trial court considered the latter dated 18.6.91 and found direction in the letter that insurance company will give work to the surveyors by rotation, but at the same time, in this very letter is clearly mentioned that work will be given by allotting officer by selection of the surveyors looking the suitability of surveyors depending upon the nature of claim and quantum of claim. 11. it is well settled law that once the trial court passes the order, in normal circumstance, appellate court will not interfere in the order of trial court and here in this case, when the trial court passed the order of dismissal on the injunction application and appellate court interferred with, then this court will certainly competent to look into the facts in which the appellate court interferred with the order of the trial court and to see whether first appellate court exceeded its jurisdiction resulting into failure of justice or not? 18.6.91, it is clearly mentioned in letter itself as under :the divisional offices as per the existing guidelines have to allot work to surveyors only from the panel by rotation depending on nature and amount of claim and suitability of surveyor. the first appellate court fail to consider the findings recorded by trial court that instructions dt. without reversing the finding of trial court, first appellate court held that there is prima facie case in favour of plaintiff which on the face of it is illegal due to non- application of mind by the appellate court and the first appellate court fail in considering the documents relevant for the controversy. all these directions clearly show that they will not give an even interim end to dispute but will result into only multiplicity of proceedings. if it so, then this also clearly shows that dispute regarding issuing injunction order, has not given an even interim end to the dispute but will clearly result into only multiplicity of proceedings.tatia, j.1. this is a revision petition against the order dated 22.7.94 passed by learned addl. distt. judge no. 1, udaipur by which learned judge reversed the order of trial court dated 2.12.93. the trial court by order dated 2.12.93 dismissed the injunction application of the plaintiff/non-petitioner holding that there is no prima facie case and plaintiff will not suffer any irreparable injury and there is no balance of convenience in favour of plaintiff/non-petitioner the appellate court set aside the above order of trial court and allowed the injunction application and granted injunction order to the effect that the general insurance company shall obey the instruction issued for allotment of work to the surveyors bonafidely and general insurance company shall not treat the plaintiff/non- petitioner discriminatory. the appellate court further bound down the defendant/petitioner companies that they should not malafidely and in contravention of rules change the panel of surveyors. the above order of the first appellate court dated 22.7.94 is under challenged.2. the brief facts of the case are that the plaintiff in his suit claimed that he is an empanelled surveyor possessing the qualification to be appointed as surveyor. the plaintiff further submitted that an order dated 17.10.85 has been passed appointing him as surveyor for the insurance companies. this licence is renewed upto 17.10.94. the plaintiff is full time surveyor. according to plaintiff, as per instructions issued by non- applicant no. 1 (non-petitioner no. 10), surveyors are entitled to get the survey work by rotation. despite these instructions, sr. divisional manager, united india ins. company ltd. is not giving work to the surveyors by rotation and giving work to only 2-3 persons. it is further submitted that even non-applicant nos. 2 to 7 are giving work of survey to the persons who are not having sufficient experience and qualification, it is also submitted by plaintiff that officers named in the plaint are having ill-will against the plaintiff and they are threatening that licence of plaintiff will be cancelled, therefore, plaintiff filed the suit for injunction seeking relief that defendant no. 2, 3 and 9 be restrained from removing name of plaintiff from the panel which have approved by the empanel committee vide order dated 18.12.86 and work of survey be allotted to the approved surveyors by rotation without there being any discrimination. the plaintiff further sought relief of injunction that defendants be bound down that defendants should give work of survey to the experienced and approved surveyors who are having sufficient educational qualification and are included in the list of surveyors. the plaintiff further prayed that persons who are not having sufficient education qualification and experience, they should not be allotted the work of assessment.3. the plaintiff further claimed that defendant no. 9 be restrained from changing the panel which is in force from 1.1.91 to 1.2.92 and no change be effected in this panel. in addition to above, plaintiff sought relief of initiation of departmental proceedings against the defendant nos. 2, 3 and 4.4. non-applicant/defendants no. 2, 4 & 6; 3, 5 & 7 and 8, 9 & 10 submitted separate replies whereas defendant no. 1 submitted separate reply to the injunction application and it was submitted in substance that instructions issued are only administrative instructions and not having statutory force, therefore, cannot be enforced through the court of law. it was also submitted that non-applicants are giving survey work as per need and by application of mind by giving survey work to the persons competent to survey and assessed the damages. surveyors are selected from qualified persons having practical experience in the different fields. it was also submitted that there is no legal injury to the plaintiff and it is the sole prerogative of the insurance company to determine for which claim, which surveyor be appointed which depends upon the application of mind looking to the facts and circumstances of each case and prayed that injunction application be dismissed.5. the trial court considered the latter dated 18.6.91 and found direction in the letter that insurance company will give work to the surveyors by rotation, but at the same time, in this very letter is clearly mentioned that work will be given by allotting officer by selection of the surveyors looking the suitability of surveyors depending upon the nature of claim and quantum of claim. the trial court further found that instructions contained in letter dated 18.6.91 is merely an administrative instructions and it cannot be enforced strictly. therefore, trial court found that there is no prima facie case in favour of plaintiff. the trial court also observed that plaintiff himself in his para no. 13 of the application admitted that non-applicant no. 2 is not giving any survey work to the plaintiff since 1987 and plaintiff filed the present suit and injunction application on 5.1.93, therefore, in view of the above laches and delay on the part of plaintiff, plaintiff is not entitled for any relief of injunction. the trial court took also note of the fact that applicant's licence is going to expire on 17.10.94, therefore, also plaintiff is not entitled for relief of injunction.6. an appeal was preferred by the plaintiff non-petitioner against the above order of trial court dated 2.12.93. the appellate court held that in view of the provisions contained in general insurance business (nationalization) act, 1972, instructions issued by general insurance corporation are having statutory force and trial court has committed illegality in holding that above instructions are not having any statutory force. on this ground, learned first appellate court held that there is prima facie case in favour of plaintiff. the first appellate court also held that there are allegations of malafides against some of the officers of insurance company. the plaintiff is deprived of his livelihood and, therefore, there is irreparable injuries and balance of convenience in favour of plaintiff. after holding above, the appellate court granted injunction as mentioned above.7. the learned counsel for non-petitioner raised preliminary objection with respect to maintainability of revision petition on the ground that present revision has been filed by the petitioner without there being any resolution of companies and in absence of resolution of companies, no company can act. learned counsel for non-petitioner relied upon the judgment of delhi high court (air 1991 delhi, 25)(1), wherein on the facts and circumstances of the case, hon'ble delhi high court held that as these officers are not authorised by the article of association of these companies or by way of resolution passed by the board of directors of these company, authorising them to institute the present petition/suit was held not to be maintainable.8. i am unable to accept the submission of learned counsel for non-petitioner because of the fact that original suit was filed by the plaintiff against the defendants who are now petitioners before this court. once all the companies have submitted their vakalatnama and authorised counsel to file the revision through counsel, it cannot be presumed that revision petition has been filed unauthorisely or without the permission of the companies. the revisional jurisdiction of this court is not the original/ordinary jurisdiction therefore, in the facts and circumstances of the case, i am unable to accept the submission of learned counsel for non-petitioner.9. learned counsel for the non-petitioner further submitted that this court has no jurisdiction to interfere in the order passed by appellate court while exercising revisional jurisdiction. learned counsel for the appellant relied upon the judgment of this court delivered in birma ram v. jankidas (2), wherein it was held by this court that the order of the first appellate court may be right or wrong, may be in accordance with law or may not be in accordance with law, but one thing is clear that it has jurisdiction to make the order and, therefore, revision petition is not maintainable.10. it is true that this court is slow in interfering with the order passed by subordinate court while exercising jurisdiction under section 151 cpc, but there is no total bar with respect to entertaining revision petition against the inter-locutory order, therefore, it is to be seen whether it is a fit case to be interferred with or not. if case is made out by the aggrieved party then this court can look into the facts and circumstances and merit of the case.11. it is well settled law that once the trial court passes the order, in normal circumstance, appellate court will not interfere in the order of trial court and here in this case, when the trial court passed the order of dismissal on the injunction application and appellate court interferred with, then this court will certainly competent to look into the facts in which the appellate court interferred with the order of the trial court and to see whether first appellate court exceeded its jurisdiction resulting into failure of justice or not? therefore, facts of this case are required to be seen by this court in this case.12. as mentioned above, facts and circumstances of this case disclose that plaintiff is an empanelled surveyor for the insurance companies. the plaintiff in his relief clause of plaint stated that defendant no. 3 be restrained from changing the list of surveyors which is in force from 1.1.91 to 18.2.92. the trial court in its order observed that petitioner has filed the suit on 5.1.1993 and licence granted to the plaintiff appointing him as surveyor is going to be expired on 17.10.94. the trial court also held that as per letter/instruction dt. 18.6.91, it is clearly mentioned in letter itself as under :the divisional offices as per the existing guidelines have to allot work to surveyors only from the panel by rotation depending on nature and amount of claim and suitability of surveyor. since the guidelines already provides for employment of surveyors by rotation you will agree with us that such rotation would give equitable opportunities for work to surveyors who are empanelled at the divisional offices.though categorisation of surveyors may not be envisaged under the present gic guidelines issued to the companies it is possible that companies may be utilising senior and experienced surveyors depending on nature and amount of claim involved. such a utility, you will appreciate, cannot be considered as discrimination.'13. therefore, by this letter dated 18.6.91 itself there is provision for giving work to the surveyors depending on nature and amount of claim and suitability of surveyor. the trial court also held that the above instructions are not having statutory force, therefore, directions cannot be enforced through court of law. the out of above two reasonings, first appellate court considered the first part of reasoning given by trial court that above instruction is not statutory instruction and having no enforceable effect. the first appellate court fail to consider the findings recorded by trial court that instructions dt. 18.6.91 itself provide for grant of work to the surveyor depending on nature and amount of claim and suitability of surveyor. without reversing the finding of trial court, first appellate court held that there is prima facie case in favour of plaintiff which on the face of it is illegal due to non- application of mind by the appellate court and the first appellate court fail in considering the documents relevant for the controversy. the order of appellate court further suffers from manifest error of jurisdiction.14. the first appellate court passed the order of injunction against the defendants that defendants will act bonafidely in giving survey work of the plaintiff and defendants will not act discriminatory to the plaintiff and also granted injunction that defendant companies should not malafidely and in contravention of rules change the panel. all these directions clearly show that they will not give an even interim end to dispute but will result into only multiplicity of proceedings.15. as is clear from the facts and circumstances of the case, plaintiff not only sought indirect enforcement of the contract to do the survey work but also sought relief which involves performance of continuous acts and requires supervision of the court. it is also clear from the facts of the case that acts alleged voiliting the plaintiff's right, are numerous and each one of the act would require a separate judicial examination. section 14(1)(b) of the specific relief act, 1963 (for short as 'act of 1963') reads as under:-'14(1)(b) : a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parlies, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms'.16. as per above provision of law, when a contract runs minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, the court cannot enforce specific performance of its material terms. it is true that there is distinction between the contract and the service contract and case of violation of article 311 of the constitution of india. here in this case, the plaintiff is seeking one part of injunction that he may not be removed from the penal of surveyors and he further claimed that plaintiff may not be removed from the panel of surveyor malafidely and in violation of rules, therefore, plaintiff is seeking a direction against the defendant with respect to alleged act which the defendant is required to follow and observe either in law or by virtue of contract; meaning thereby that a direction is sought to act in accordance with law and in conformity with the rules, therefore, the dispute will remain as it is after the happening of the act of the defendant whether action of defendant is in violation to the injunction order of the court or not which means that this subsequent act would require a separate judicial examination. the action of the defendant will depend upon the numerous acts of the defendant because even as per instruction contained in letter dated 18.6.91, it provides giving of work to the senior and experienced surveyors depending on nature and amount of claim involved, therefore, this type of relief cannot be granted to the plaintiff because of the fact that sub-section (2) of section 38 provides that perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour and for which purpose, courts are required to be guided by the rules and provisions contained in chapter ii and section 14 of the act of 1963, which specifically provides that such type of contract cannot be enforced.17. had it been the case of wrong removal from service by the statutory authority in volition of statutory rules, it would have been a different matter, but as stated above, looking to the nature of work and foundation of the claim of plaintiff from the instruction dated 18.6.91 which is found that plaintiff cannot claim specific performance of the contract by seeking injunction preventing defendant from removing the plaintiff from the panel, there are further grounds which make plaintiff not entitled for relief of injunction. since the plaintiff is already in the panel, whether relief of giving work to the plaintiff can be granted for which plaintiff himself in para no. 9(e) admitted that insurance companies are required to give work of survey/assessor to the surveyors according to their suitability and experience by rotation, therefore, it is admitted case of plaintiff that work is to be given by rotation, but at the same time, looking to the suitability and experience of surveyor. the suitability of surveyor is to be judged by the work allotting authority. the petitioner relied upon the letter dated 18.6.91 and also relied upon chapter ii, the copy of direction of national insurance company ltd. regarding appointment of surveyor, clauses section 1, 2.2 and 2.3 are relevant, which are quoted herein-under :2.1 : accident claims cover such a wide field and in many respects demand such expert knowledge that various specialists have to be employed. in view of this the survey/loss assessment should always be conducted by an approved set of surveyors/loss assessors specialist to survey the loss. for this purpose, each division and branch must maintain an upto date list of surveyors/loss assessors with their respective addresses, telephone/licence number, area of expertise, experience, etc.'2.2. !n allotting survey work, the officer concerned will pay attention to the particular expertise of the surveyor/loss assessor concerned and select a surveyor/loss assessor who is suitable to assess the loss under consideration. choice of the surveyors/loss assessor depending on the nature and quantum of claim shall be a prerogative of an officer enjoying financial authority not loss than the estimated loss. where arising the total amounts exceed the authority of the divisional/sr. divisional manager. it is necessary that such appointment of the surveyor is retified by the person at regional/head office, as the case may be, enjoying the appropriate financial authority.2.3 it will be attempt of all concerned to see that survey works are fairly distributed among the competent surveyors/loss assessors as far as possible.'18. from the perusal of clause 2.2, a clear discretion has been given to the officers concerned to pay attention to the particular expertise of the surveyor/loss assessor concerned and to select a surveyor/loss assessor who is suitable to assessee the loss under consideration, therefore, from this clause it is clear that surveyor was required to be selected and work is to be given to the suitable assessee by the officers concerned. this also requires judgment of officers and each action of giving work to a surveyor during the pendency of ad-interim injunction order cannot be supervised by the court to adjudge whether he has adopted the process of selection malafidely or bonafidely in giving work to all the surveyors or the officers concerned has malafidely deprived the plaintiff from the survey work. it will also require to look into numerous acts of the defendant, therefore, also this is not a fit case in which injunction as granted by first appellate court could have been granted. the learned counsel for the non-petitioner submitted that the plaintiff after grant of injunction by first appellate court in the year 1994 submitted various contempt petitions before the trial court which were according to learned counsel for non- petitioner/plaintiff withdrawn by the non-petitioner due to mental torture and economic pressure on the non-petitioner by the officers of petitioner insurance companies. if it so, then this also clearly shows that dispute regarding issuing injunction order, has not given an even interim end to the dispute but will clearly result into only multiplicity of proceedings.19. the first appellate court, therefore, without considering the relevant provisions of law and without considering the nature of the relief sought and without considering the effect of relief, if wrongly granted the injunction in favour of plaintiff which neither court can supervise nor it will avoid multiplicity of proceedings, it amounts wrong exercises of jurisdiction by the court resulting into irreparable loss to the petitioner. the trial court has also committed serious illegality while holding that it will result into irreparable loss to the plaintiff. in fact grant of such type of injunction will hamper the internal administration of all the four insurance companies, therefore, there is no prima facie and balance of convenience in favour of plaintiff and plaintiff will not suffer any irreparable injury if the injunction is not granted. therefore, the order of first appellate court dated 22.7.94 deserves to be set aside. the injunction application of the plaintiff deserves to be dismissed. hence dismissed.20. the revision petition, is allowed. however, it is made clear that by this orderonly it has been that plaintiff is not entitled for interim relief of injunction, therefore,anything observed above will not come in the way of plaintiff on merits in this case intrial.