<NAME>, J.

1. This revision is by the defendant in O.S. No. 278 of 1994, on the file of District <NAME>'s <ORG>, Tindivanam.

2. The suit filed by the respondents herein as plaintiffs is one for permanent injunction restraining the defendant, petitioner herein, from interfering with the plaintiffs' peaceful possession and enjoyment of the suit properties either by themselves or by their representatives or successors-intitle or by anyone claiming through him till 19.10.2002; for costs of suit; and for other reliefs.

3. Along with the suit, the plaintiffs filed I.A. No. 1004 of 1994 for an interim injunction. The material averments in the affidavit filed in support of the said petition are, that the first plaintiff is a private limited company incorporated under Companies Act 1956. Its Certificate of Incorporation is No. 18-17521 of 1989, on the file of <ORG>, Tamil Nadu, and the same was registered on 9.6.1989. The main objects to be pursued by the plaintiffs are said to be many, and, according to the plaintiffs, the foremost object was to have quarry operations by acquiring lights over lands which contain deposits of granite. The business of the company is buying, selling and exporting granites by quarrying the same. It is said that the defendant is the absolute owner of the suit properties, and he approached the plaintiffs with an offer of lease for the purposes of exploiting those lands. Pursuant to the same, exploitation rights have been given to the first plaintiff-company represented by the second plaintiff in respect of the suit lands by duly executed document dated 20.10.1992. By the said arrangement, the plaintiffs are entitled to exploit granite deposits in the suit lands for a period often years from 20.10.1992, with an option to renew the same. An advance of Rs. 7 lakhs was paid and the same is identified in the document dated 20.10.1992 also. In view of the exploitation of the deposits by the plaintiffs, Rs. 10,000 per cubic metre has to be paid to the defendant whenever granite is quarried by 1st plaintiff. It is said that possession of the suit lands was also vested with the plaintiffs by the arrangement dated 20.10.1992, and the plaintiffs took possession of the lands and commenced several activities of quarrying the suit lands. It is said that the plaintiffs, respondents herein, by exploiting the quarry have further settled by way of supply of granite worth Rs. 4,90,000 to one <ORG>, Madras to whom the defendant, through his proprietory concern, had financial commitments to pay the same. It is also said that the defendant received from plaintiffs Rs. 20 lakhs. It is further said that subsequent to taking possession, the plaintiffs had their overseas commitments, and the contract of purchase has been entered into with foreign buyers for the export of black granite from suit lands. It is stated that the documents produced along with the plaint will show that the plaintiff has acted on the agreement. It is said that the respondents (plaintiffs) have also paid sales-tax to the <ORG> and statutory authorities for movement of blocks from the quarry to the Harbour. The petitioner also gave Letters of Authority to plaintiffs under his trade concern name '<ORG> of which he is the proprietor, authorising the plaintiffs to act and represent the defendant before public authorities as well as in respect of various activities concerning the exploitation of granites by plaintiffs, respondents herein. It is said that persons inimically disposed towards the plaintiffs, have approached the defendant to act contrary to the trade interest of the plaintiffs, and, as a result of that, the defendant, petitioner herein, has completely changed his attitude and is creating various disturbances to the plaintiffs in the smooth exploitation of suit lands. It is further stated that the petitioner herein has started acting against the interest of the respondents herein from 11.4.1994 by joining hands with trade competitors, contrary to the written commitments made by him. As per arrangement dated 20.10.1992, the respondents herein are entitled to exploit the deposits till 19.10.2002. The respondents, apprehending dispossession by force at the hands of the petitioner herein, filed the injunction petition.

4. A counter-affidavit has been filed by the petitioner herein (defendant) wherein he dispute the rights of the plaintiffs to get an injunction. It is said that a document was executed on 20.10.1992, but the same was only for the purpose of getting a loan from <ORG>, and it was never intended to take effect. It is not an enforceable contract. It is also said that there was no necessity or occasion to give possession of the suit lands to the respondents. The petitioner herein asserts that he continues to be in possession, and he is doing business in granites. It is further averred that the statement that he has received a sum of Rs. 7,00,000 on the date of the agreement by way of advance, is also not correct. The petitioner also denies the allegation by the respondents that they have supplied granites to various countries and that they have settled transaction with <ORG>. The receipt of nearly Rs. 20 lakhs is also disputed by the petitioner. It is also said that all the documents produced along with the plaint will show that only the defendant is in possession of the suit lands. According to the petitioner herein, the documents do not reveal that he (defendant) has authorised the plaintiffs (respondents herein) to represent him before the Collector and other officials. According to the petitioner, he is still in possession of the suit properties. He disputes the pecuniary jurisdiction of this Court and also the maintainability of the suit as it stands. According to the petitioner herein, the respondents (plaintiffs) have no prima facie case and, therefore, injunction should not be granted.

5. An additional counter-affidavit has also been filed by the defendant, stating that the document dated 20.10.1992 which is the basis of the suit, cannot be enforced in a Court of Law, since it is an unregistered document. According to the defendant, the plaintiffs are not entitled to rely on that document for any purpose. It is also said that under Section 23 of the Contract Act, the court is not competent to take into consideration the terms of the agreement. It is said that it violates the provisions of Rule 33 of Tamil Nadu Minor Mineral Concession Rules, 1959.

6. The trial court, as per order dated 17.8.1994, dismissed the injunction application.

7. The trial court was of the view that the respondents have not proved a prima facie case, and the balance of convenience is also in favour of the petitioner herein. The trial court also took the view that the agreement cannot be enforced since it is opposed to the statutory provisions under Tamil Nadu Minor Mineral Concession Rules. Finally, it has also stated that there is a contractual liability, and, even if the plaintiffs are put to any loss, the same can be compensated in damages. It has also said that the very execution of the document is against statutory provisions. Taking the above view, the trial court dismissed the injunction application.

8. The respondents (plaintiffs) filed C.M.A. No. 161 of 1994. The defendant (petitioner herein) who was the respondent in the said appeal, filed C.M.P. No. 34 of 1995 in that appeal seeking permission to adduce additional evidence.

9. The lower appellate court, as per judgment dated 15.9.1995, allowed the appeal and granted an order of injunction. The lower appellate court was of the view that the agreement dated 20.10.1992 is a lawful agreement whereby possession had passed, and the suit which is only for injunction, in the opinion of the learned appellate Judge, can be maintained. The learned Judge was also of the view that the agreement in question does not violate the provisions of Tamil Nadu Minor Mineral Concession Rules, and that the same is not void. The learned appellate Judge was also of the view that Rule 23 of the Tamil Nadu Minor and Mineral Concession Rules enables registered holder and lessee to jointly work the mines, and, when the respondent (defendant) had permitted the plaintiffs to represent him before the authorities, on that basis, the plaintiffs can take the licence and work in the quarry. The lower appellate court said that till a licence is obtained, the contract cannot be enforced against the Government. As between the parties to the agreement, the agreement was held to be valid. It prima facie took the view that possession was handed over to the plaintiffs and the defendant had also received amounts in consideration of the same. On the above view, it held that the plaintiffs have proved a prima facie case, and accordingly granted temporary injunction till the disposal of the suit.

10. It is against the said judgment of the lower appellate court, this revision is filed.

11. Learned Senior Counsel for the petitioner put forward a contention that the agreement dated 20.10.1992 cannot be considered for any purpose, and the finding rendered by the lower appellate court regarding possession is against the materials placed before court. Learned Senior Counsel also argued that the document dated 20.10.1992 cannot be enforced in <ORG>, since the same is not registered. He further argued that if the agreement dated 20.10. 1992 is enforced, the same will be against Section 23 of the Contract Act and also against public policy. He also argued that when the trial court has exercised its discretion in refusing injunction, the lower appellate court, under normal circumstances, should not reverse the same, unless patent illegality is shown in such exercise of discretion by the trial court. Learned Senior Counsel also argued that since the suit is based on a contract, injunction suit is not the proper remedy, and the suit should have been one for specific performance of the agreement. It is also said that injunction should not have been granted under Section 41 of the Specific Relief Act. Learned Senior Counsel also attacked the judgment of the lower appellate court on the ground that it has not considered the aspects of balance of convenience and irreparable loss or injury, which are the necessary ingredients that have to be considered before granting injunction.

12. According to the learned Senior Counsel for the respondents (plaintiffs), this being a revision, this <ORG> may not interfere with the conclusion reached by the lower appellate court. He wanted the revision to be dismissed with costs of the respondents.

13. As stated earlier, the only one point that has to be considered in this revision is, whether the judgment of the lower appellate court is liable to be interfered with, in exercise of revisional jurisdiction.

14. The document executed between the petitioner and the respondents herein is marked for reference as Ex. P-28. It is in Tamil. Even at the time when the document was produced in court, an objection was taken by the petitioner herein that the same cannot be admitted in evidence, since it is not properly stamped, nor registered. The trial court permitted the marking of the document subject to payment of stamp duty, finding that there is an agreement. The question whether the document requires registration or not, and whether the same can be considered for any collateral purpose, was not considered by the trial court.

15. I will first deal with the nature of the document executed between the parties, for, that creates a legal relationship which is sought to be enforced through court. It says that the properties which are described in the Schedule belong to the second executant, and since they are covered by rocks, they could not be cultivated by him. It further says that in the properties described, black granites are situated, and the first executant may excavate the black granites, cut them and make use of the same, either for himself or for the purpose of his business. It is further said that for the said purpose of enabling the first party to excavate granites from the property, the document is executed. Further down, it is said that the period of agreement will be initially for ten years, and, on the expiry of the ten years, the first executant will have right of renewal. Still further down, it is said that the first executant may take possession of the property, excavate the granites, and in consideration of the same, Rs. 7 lakhs have been paid. It further says that for every one sq. metre of excavated granites, the first executant shall pay Rs. 10,000 to the second executant. On receipt of the amount, the second executant shall permit the first executant to remove the excavated granites through the passage mentioned in the document, either through motor vehicles or by coolies. It says that on the basis of the said document, the first executant was being put in possession of the properties. It also says that the first party is bound to see that no damage is caused to the property of the second party. It also says that the first executant may move the <ORG> for getting necessary licence, for which the second party has signed and authorised the first party to do so. It is seen that a letter of authorisation has also been given by the petitioner herein authorising the respondents (plaintiffs) to appear on his behalf for the purpose of obtaining mining lease in respect of the properties in question, from the authorities concerned. On 10.9.1993, another letter of authorisation has been given by the petitioner authorising the second plaintiff (second respondent) to appear on behalf of the petitioner before the Collector, in the matter of quarrying operations in the property in question.

16. The case that is put forward by the respondents herein is that on the basis of Ex. P-28 agreement between the parties, possession passed to them, and, therefore, they are entitled to continue in possession for the entire term of ten years, and the defendant (petitioner herein) should be restrained from interfering with their possession.

17. In the plaint, the respondents have only stated that Ex. P-28 is an arrangement whereby they are entitled to exploit the granite deposits from the suit lands and that they are entitled to be in possession till 19.10.2002. What is the impact of the said document is the first question to be considered.

18. Learned Senior Counsel for the respondents, relying on the decision reported in <CITATION> . , argued that the transaction between the parties is a lease, and the possession handed over as per the said document amounts to a transfer of land, given for enjoyment. Learned Counsel relied on paragraphs 29 to 35 of the judgment of <ORG> (cited) and wanted this Court to hold that the said document is a lease, and that a mining lease need not be in strict compliance with a 'lease' as defined under the Transfer of Property Act . Paragraphs 29 to 35 of the judgment of <ORG> read thus:

It is important to bear in mind that the term "lease" occurring in the definition of "mining lease" given in Section 3(c) of Act 67 of 1957 does not appear to have been used in the narrow technical sense in which it is defined in Section 105 of the Transfer of Property Act. But, as rightly pointed out by a Bench of <ORG> in <CITATION> A.I.R. 1932 Cal. 775 : I.L.R. 59 Cal. 1314, a settlement of the character of a mining lease is everywhere in India regarded as 'lease'. A mining lease, therefore, may not meticulously and strictly satisfy in all cases, all the characteristics of a 'lease' as defined in the Transfer of Property Act . Nevertheless, in the legally accepted sense, it has always been regarded as a lease in this Country. <CITATION> A.I.R. 1932 Cal. 775 : I.L.R. 59 Cal. 1314, Mukerji, J., speaking for the Bench, held that a coal mining settlement may be regarded as satisfying the requirements of Section 105 and treated as a lease because under such settlement some portion, however small, of the surface has to be used for carrying on the mining operation and taking the coal out.

Be that as it may, in the instant case, as shall be presently discussed, the transaction evidenced by Ex. I, not only falls within the definition of a "mining lease" under Act 67 of 1957, but also partakes of all the essential characteristics of a 'lease' defined in Section 105 of the Transfer of Property Act.

Section 105 , Transfer of Property Act , defines a 'lease' of immovable property as-

a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.

In the second paragraph of the section, it is expressly stated that the price so paid in consideration of the transfer is called "the premium, and the money, share, service, or other thing to be so rendered, is called the rent" The definition of "immovable property" given in Section 3 , para. 1 of that Act is in the negative, and is not exhaustive. Therefore, the definition given in Section 3(26) of the General Clauses Act (X of 1987) will apply to the expression used in this Act, except as modified by the definition in the first clause of Section 3 . According to the definition given in <CITATION> of the General Clauses Act, "immovable property" shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth". In short, the expression 'immovable property' comprehends all that would be real property according to English Law and possibly more See (1873) 1 I.A. 34 (P.C.). Thus, every interest in immovable property, or a benefit arising out of land, will be "immovable property" for the purpose of Section 105 , Transfer of Property Act .

A right to carry on mining operations in land to extract a specified mineral and to remove and appropriate that mineral, is a 'right to enjoy immovable property' within the meaning of Section 105 ; more so, when as in the instant case it is coupled with a right to be in its exclusive has possession for a specified period. The 'right to enjoy immovable property' spoken of in Section 105 , means the right to enjoy the property in the manner in which that property can be enjoyed. If the subject-matter of the lease is mineral land or a sand-mine, as in the case before us, it can only be enjoyed and occupied by the lessee by working it, as indicated in Section 108 , Transfer of Property Act , which, regulates the rights and liabilities of lessors and lessees of immovable property.

19.The Supreme Court, in that case, has approved the decision reported in <CITATION> A.I.R. 1932 Cal. 775 : I.L.R. 59 Cal. 1314 wherein it was held thus:

Where in a mining lease, it is agreed that on payment of royalty, the lessee would be entitled to take out coal, such a settlement may not come under the strict definition of lease, because lease under Section 105 is the transfer of a right to enjoy such property and in mining leases there is no question of enjoyment of the property and what is payable under the settlement is not rent but only the price of the quantity of coal taken. But settlements of this character are everywhere regarded as lease though not falling strictly within the definition of lease. Yet some portion however small of the surface of the earth to be used for carrying on mining operations and taking the coal out and to that extent the transaction may be taken to satisfy the requirements of the definition.

20. In view of the said decisions, I hold that the intention of the parties was to create an interest in <ORG>. If so, it has to be considered whether the document can be admitted in evidence.

21. Admittedly the document is not registered. Section 17(d) of the Registration Act says, "leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent" is compulsorily registrable. In this case, admittedly, the document seems to be for a period often years. If that is so, Section 40 bars the consideration of the document for any purpose, and it says, it shall not affect any immovable property comprised therein and it cannot be received as evidence of any transaction affecting such property or conferring any power. It is subject to the Proviso that an unregistered document can be made use of for some collateral purpose.

22. <NAME> on Registration - Fourth Edition (1989) at page 78 has commented on the scope of the said Section, namely, Section 17 . The learned author says thus:

An instrument giving rights to take away timber, firewood and coal along with trees is compulsorily registrable. <CITATION> , it was held that the transfer of right to cut timber trees for three years was not compulsorily registrable as it related to moveable property and not rights arising out of land. A lease of a colliery must bemade by a registered deed under Section 17 . <CITATION> , it was held that a partnership deed for extraction of mica registered outside the district of the mica mine must be regarded as unregistered and was, therefore, not admissible in evidence. <CITATION> , it was held that transfer of standing trees of the value of Rs. 100 or upwards is compulsorily registrable.

23. <CITATION> , the question was whether partnership deed is compulsorily registrable. The partnership was set up for the purpose of extracting mica from mines, and for the purpose of sale of mica extracted from the mines. Learned Judge of <ORG> held that the same amounts to dealing with immovable property and also falls within the meaning of the phrase "any other benefit to arise out of land" occurring in Section 2(6) of the Registration Act. The relevant portion of the said decision reads thus:

A partnership set up for the purpose of extraction of mica from mines and for purchasing and selling mica extracted from the mines clearly amounts to dealing with immovable property and falls within the meaning of the phrase "any other benefit to arise out of land" occurring in Section 2(6) and therefore such a partnership business cannot but be held to be a business relating to immovable property. The instrument creating such a partnership creates or declares a right, title or interest in an immovable property, which is of a non-testamentary character and as such falls within Clause (b) of Section 17(1) of the Registration Act and is, therefore, compulsorily registrable.

24. Handing over possession for the purpose of enjoyment is an essential term of the document and the same cannot be treated as collateral. If that be so, the document cannot be admitted for any purpose, and the plaintiffs are not entitled to prove possession de hors the document. In fact, in the plaint, possession is claimed directly from the document itself. Similar question came for consideration in <ORG> v. <NAME> . There, the case was whether the tenant is entitled to sub-let. The prohibition contained in the document which was not registered. In that case, <ORG> held thus:

A deed purporting to create a lease is inadmissible in evidence in case it is not registered. As such all its terms are inadmissible including the one dealing with landlord's permission to his tenant to sub-let. The question whether a lessee is entitled to create a sub-lease or not is undoubtedly a term of the transaction of lease, and if it is incorporated in the document it cannot be dissociated from the lease and considered separately in isolation.

25. Section 2(6) of the Registration Act reads thus:

2. Definitions: In this Act, unless there is anything repugnant in the subject or context, (1) to (5) xxxx (6) "immovable property" includes lands, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, but notwithstanding timber, growing crops nor grass;

<CITATION> , the learned Judge held that since registration of the document was invalid, it has to be taken as a document unregistered for all purposes, and if so, the document cannot be taken into consideration as creating a right in immovable property. The learned Judge held that extracting mica cannot be considered as a business relating to immovable property. It can only be a transaction in respect of an immovable property, and hence compulsorily registrable.

26. Learned Senior Counsel for the petitioner says that if it is a lease, naturally, the same becomes compulsorily registrable. Being an unregistered document, the very basis of the suit falls to the ground.

27. It is urged that such a contention was taken before the trial court, and the trial court has allowed the document to be marked, treating the same as an agreement, subject to payment of deficit stamp duty. The question whether the document was compulsorily registrable or not, was not considered by any of the courts below. If it is only an agreement of lease, the remedy of the plaintiffs can only be filing a suit for specific performance, and not by filing a suit for injunction. The suit as it stands is only for injunction stating that the plaintiffs obtained possession of the basis of the document dated 20.10.1992. The question whether the document is compulsorily registrable or not is a pure question of law, and to find out a prima facie case, the said argument can be accepted.

28. Alternatively also, we have to consider whether the plaintiffs are entitled to an injunction on the settled principles of law.

29. The lower appellate court granted injunction on the ground that as per the document dated 20.10.1992, the parties were free to handover possession and take possession and, therefore, the plaintiffs who have obtained lawful possession of the properties, are entitled to enjoy the same for the period provided in the document. The lower appellate court was of the view that the question of possession and the question of extracting granites are different, and one need not be mixed with the other, for the purpose of granting injunction. The lower appellate court was of the view that in case of injunction, possession alone is material. I cannot agree with the said finding of the lower appellate court.

30. If the document is treated as an agreement by which possession passed, the possession is coupled with certain rights and obligations. It cannot be-taken separately. Possession is handed over for the purpose of excavating granites only. The enjoyment of the property which is a necessary ingredient for a lease also relates to the excavation of granites only. There cannot be any question of possession without enjoyment for, possession is a necessary ingredient for a lease. The plaintiffs are not given more possession. Certain obligations also follow on the basis of the document. The petitioner herein is entitled to realise the income whenever granites are excavated. For every sq. metre of granite, the petitioner is entitled to Rs. 10,000 as consideration. There also, there is an obligation on the part of the plaintiffs to remove the granites and to level the property to an extent. These are certain obligations which go along with possession. Possession cannot be treated as independent of these obligations.

31. If possession and enjoyment cannot be separated, the further question that arises for consideration is, whether that enjoyment contemplated under the document could be specifically enforced. Only in cases of contract which can be specifically enforced, injunction also can be granted.

32. Section 41 of the Specific Relief Act deals with cases where an injunction cannot be granted Section 41(e) of the Act says that injunction cannot be granted to prevent breach of a contract, the performance of which cannot be specifically enforced. Section 14 of the said Act deals with cases where specific performance cannot be granted. Section 14(d) of the Act deals with contracts the performance of which involves the performance of a continuous duty which the <ORG> cannot supervise. A reading of Ex. P-28 will show that the petitioner herein is bound to give assistance to the respondents (plaintiffs) for the performance of excavating the granites from the property. The reason described in that clause is, that excavating minor mineral is governed by Mines and Minerals (Regulation and Development) Act , 1957 and the Rules framed thereunder Section 4 of the said Act says that 'No person shall undertake any prospecting or mining operation in any area, except under and in accordance with the terms and conditions of a prospecting licence or, as the case may be, a mining lease, granted under this Act and the rules made thereunder' Section 14 of the Act says that 'The provisions of Section 5 to 13 (inclusive) shall not apply to quarry leases, mining leases or other mineral concessions in respect of minor minerals.' Therefore, the Act makes it clear that Section 4 applies to minor minerals. Under Section 15 of the Act, <ORG> is empowered to make Rules in respect of minor minerals.

33. On the basis of the said provision, Rules have been framed in respect of minor minerals known as Tamil Nadu Minor Minerals Concession Rules, 1959. Rules 33 and 34 of the said Rules deal with leasing of quarry rights and how they have to be executed.

34. Rule 33 reads thus:

33. Leasing out of quarrying rights: If the registered holder does not intend to carry on quarrying operations himself but leases out the right to do so to another person, the registered holder and his lessee shall enter into an agreement with the Government binding themselves jointly and severally to accept the conditions and stipulations set out in these rules. The agreement shall be in the form set out in Appendix V to these rules.

35. Rule 34 reads thus:

34. Agreements to be registered: The agreements executed in the forms set out in Appendixes IV and V to these rules are compulsorily registrable under Section 17(1) of the Indian Registration Act, 1908 - the former at the cost of the registered holder and the latter at the cost of the registered holder and his lessee.

36. Rule 10 of Appendix IV says thus:

If the registered holder does not intend to carry on mining operations himself, but intends to leave but the right to do so to another person the registered holder and his lessee shall enter into an agreement with <ORG> binding themselves jointly and severally to accept the conditions and stipulations herein contained which agreement shall be in the form set out in Appendix V to the Tamil Nadu Minor Mineral Concession Rules, 1959.

37. Appendix V deals with Form of Joint Agreement for quarrying and carrying away minor minerals by lessees, and such agreement should be executed in favour of the <ORG>. I have already stated that under Rule 34 (extracted above), the agreement in favour of the <ORG> will have to be registered under Section 17 of the Indian Registration Act. It is joint agreement that is contemplated, and the obligations created are also joint. So long as the lease continues, the obligations as per the agreement also shall continue. Only on the basis of the agreement executed in favour of the <ORG>, mining operations also can be had. Since the petitioner must also be a party to the document in favour of the <ORG>, and the continued compliance of the terms and conditions of the agreement is a condition precedent, the continued supervision of the court is also contemplated if the agreement is to be implemented for the full term. It is, therefore, Section 14(d) of the Specific Relief Act says that contracts the performance of which involves the continuous supervision by court, cannot be specifically enforced. If it cannot be specifically enforced under Section 14(d) , naturally there is a bar for granting injunction under Section 41(e) of the Act.

38. Fry on Specific Performance - 6th Edition (1985) says (at page 46) that specific performance will be refused in regard to contracts for the working of quarries, and coal mines, or involving the performance of continuous acts or duties. The learned author also deals with contracts which are indivisible in character wherein injunction could be refused. At page 388 of the same book, the learned author says thus in paragraph 833:

The principle that the court will not partially enforce contracts is illustrated by many other cases. Thus, where there was a partnership contract for an absolute term of years, leaving undefined the amount of capital and the manner in which it was to be provided, this being a contract which in its entirety the courts could not enforce, the court refused to enforce it in part, by refusing the representatives of a deceased partner a decree for the dissolution of the partnership and the sale of the partnership property. In another case the court refused to separate the parts of an award which were capable of specific performance from those which were not. And again, where the contract was that the landlord of a residential flat should employ a porter, who should do certain specified work for the benefit of the tenant, that was held to be one indivisible contract, and the court declined to interfere by injunction to compel performance of part of it.

39. In <NAME>, Law of Specific Relief - Ninth Edition (1992), at pages 201 and 202, the learned author says thus:

The clause enacts that a contract, the performance of which involves the performance of a continuous duty which the court cannot supervise, cannot be specifically enforced. Thus, a contract which involves the necessity of the performance of duties continued over a long period of time, which the court cannot supervise, cannot be specifically enforced. A court can order the doing of something which has to be done once for all, so that it can see to its being done. But it will not decree specific performance of a contract, the execution of which would require, more or less, permanent supervision by the court, if it cannot make it. If the court were to make, what purported to be a final order for specific performance in such cases, such order would not be the end of litigation, but, on the contrary, its fruitful and continuous source. The test should be one of reasonableness and practicability.

Where a charge is created for maintenance on certain property and its rent, and a person interferes with the realisation of rent, asserting his own right to the rent of the property, the charge being for a long period involving the performance of a continuous duty, an injunction restraining interference cannot be granted as it involves the performance of a continuous duty which the court cannot supervise.

40. In G.C.V. Subba Rao on Law of Specific Relief - Third Edition (1989), at page 429, the learned author has considered the same question comparing the English Law. The learned author has extracted an English decision regarding the grant of injunction and specific performance. The relevant passage reads thus:

Contract involving performance of continuous doty - ( Section 14 , Clause, (d), old Section 21 , Clause (g) - (A) Analogous English Law-

In <NAME> v. <ORG> the lessor of certain premises agreed to provide the tenants a resident porter who was to look after the building and be in constant attendance in the building to clean the stairs and passages, receive for and deliver to the tenants letters, messages, etc. The lessors appointed a porter who was away for four hours every day acting as a cook in a neighbouring building. The tenants brought the suit for specific performance of the lessor's contract. It was held that a decree for specific performance could not be granted for two reasons. In the first place that part of the agreement which provided for the appointment by the lessors of a porter, was not divisible from so much of it as provided for the various duties of the porter and as such a contract would require the constant supervision of the court during the existence of the lease, it was susceptible of specific enforcement. Secondly, damages were a sufficient compensation for the breach.

41. I have already stated that Ex. P-28 has been executed only for a sole purpose, i.e., the respondents herein shall enjoy the property by excavating the granite. It is for that purpose, the same has been given. The same cannot be separated. We cannot consider possession alone as was done by the lower appellate court. If the same cannot be separated and the same is interlinked with enjoyment by excavating granite, which cannot be specifically enforced, the plaintiffs will not have a right to get injunction.

42. If we consider Ex. P-28 only as an agreement, the Order of the lower appellate court treating it as an agreement and collecting stamp duty for the same, as I have already said, the remedy of the plaintiffs is only to sue for specific performance of the agreement. If injunction is granted, the defendant will be prevented from entering into the property, and at the same time, the plaintiffs will continue to be in the property, without the right to excavate granite.

43. Learned Senior Counsel for the respondents submitted that in all mining leases, first there must be document of lease, and then only the question of getting licence from the <ORG> will arise. Learned Senior Counsel wanted me to read Rule 10 of Appendix IV and V in that angle. I agree with the learned Senior Counsel that there must be a lease. But we may have to consider that by lease itself, the executee is not getting right. Even if possession is handed over, that is only for the purpose enjoined under the Act. That purpose cannot be separated from possession. So, that contention of the learned Senior Counsel has to fail.

44. The trial court, after taking into consideration the various Rules framed under the Mines and Minerals (Regulation and Development) Act , 1957, the plaintiffs have no case that the balance of convenience is also in their favour. In the decision of the lower appellate court, I do not find that the question of balance of convenience or irreparable injury has been considered. A prima facie case alone is not sufficient for the grant of injunction.

45. <ORG> in <CITATION> , has considered this point and held thus:

A party is not entitled to an order of injunction as a matter of right or course. Grant of injunction is within the discretion of the court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The court grants such relief according to the legal principles: ex debito justitiae. Before any such order is passed the court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him...

The said decision was followed in <CITATION> . (1995) S.C.C. 33. In paragraph 8, gave importance to the balance of convenience, and also held that irreparable loss is also equally important as prima facie case and said that the court will have to find whether the plaintiffs can be adequately compensated if injunction is refused. Their Lordships held in paragraph 8 thus:

<CITATION> a Bench of two Judges (in which <NAME> was a member) of this Court held that the phrases "prima facie case", "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation but words of width and elasticity, intended to meet myriad situations presented by men's ingenuity in given facts and circumstances and should always he hedged with sound exercise of judicial discretion to meet the ends of justice. The court would be circumspect before granting the injunction and look to the conduct of the party, the probable injury to either party and whether the plaintiff could be adequately compensated if injunction is refused. The court further held: (S.C.C. p.721, para.5) The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The court further has to satisfy that non-interference by the court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession, Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that 'the balance of convenience' must be in favour of granting injunction. The court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued. Thus, the court has to exercise its sound judicial discretion in granting or refusing the relief of ad-interim injunction pending the suit.

Their Lordships said that injunction cannot be claimed as of right and the matter is purely discretion of court.

46. In a recent decision of our <ORG> reported in <CITATION> by its Secretary and Ors. , the entire point has been considered in detail. The power of the appellate court in interfering with the discretion exercised by the trial court. Paragraphs 18 to 22 of the said decision are relevant for the purpose of this case. They read thus:

While dealing with the powers of the appellate court, to interfere with the exercise of the discretion of the trial court, it was held in <CITATION> thus:

Where the discretion vested in the court under Section 34 has been exercised by the lower court, the appellate court would be slow to interfere with the exercise of their discretion, In dealing with the matter raised before it at the appellate stage, the appellate court would normally not be justified in interfering with the exercise of the discretion under appeal solely on the ground that if it had considered the matter at the trial stage, it may come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify such interference with the trial court's exercise of discretion. If it appears to the appellate court that in exercising its discretion trial court has acted unreasonably or capriciously or has ignored relevant facts, then it would be open to the appellate court to interfere with the trial court's exercise of discretion.

It was a case under Section 34 of the Arbitration Act. But it applies to all cases where discretionary orders are passed.

<CITATION> . A.I.R. 1969 S.C. 338, their Lordships refused to interfere with the discretion exercised by the trial court on the ground that the trial court has not exercised its power capriciously or arbitrarily.

<CITATION> . A.I.R. 1969 S.C. 747, in paragraph 18 (at page 755), it was stated thus:

This takes us to second limb of the fourth contention raised on behalf of the appellants. While it is true that the relief of declaration is discretionary, it is well-settled that it is only if the discretion is not exercised by the lower court in the spirit of the statute or fairly or honestly or according to the rules of reason and justice, that the order passed by the lower court can be reversed by the superior court. Reference in this connection may usefully be made to a decision of <ORG> in <NAME> and Co. v. <NAME> 1942 A.C. 130, where the legal position was succinctly stated as follows:

There remains the question whether, assuming that in the circumstances of this case <NAME>, J. had jurisdiction to make the order of reference, his conclusion must stand on the ground that it was reached in the exercise of his discretion and that the exercise of such discretion should not be interfered with an appeal. So the respondent contends while the appellants urge that even if the discretion to make the order existed, it was wrongly exercised in view of the gravity of the charges made against them of the impossibility of appeal from an official referee's finding of fact, and in view of the practicability of the case being tried before a Judge, without a jury. The law as to the reversal by a court of appeal of an order made by the Judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in any individual case. The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In other worcis, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion had it attached to them, in a different way. But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight or no sufficient weight has been given to relevant consideration such as those urged before us by the appellant, then the reversal of the order on appeal may be justified. This matter was elaborately discussed in the decision of this <ORG> in <NAME> v. <NAME> 1937 A.C. 473, where the proposition was stated by my noble and learned friend Lord <NAME>, as follows: It is clear that <ORG> should not interfere with the discretion of a Judge acting within his jurisdiction unless the court is clearly satisfied that he was wrong. But the court is not entitled simply to say that if the judge had jurisdiction and had all the facts before him the court of appeal cannot review his order unless he is shown to have applied wrong principle. The court must if necessary examine a new the relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order. Otherwise, in interlocutory matters, the judge might be regarded as independent of supervision. Yet an interlocutory order of the Judge, may often be of decisive importance on the final issue of the case and one which requires a careful examination by <ORG>. Thus in <NAME> v. <NAME> (1885) 29 Ch. D. 50, <NAME>, J. in discussing the discretion of the Judge as regards mode of trial says: "That discretion, like other judicial discretion must be exercised according to common sense and according to justice and if there is a miscarriage in the exercise of it, it will be reviewed.

<CITATION> 1990 S.C.C. (Supp.) 727 at 733-735, while dealing with a case under Copyright Act , their Lordships of <ORG> held thus:

The appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion.

This Court had occasion to consider the powers of the appellate court while interfering with the discretionary orders of the trial Judge. <CITATION> (1989)1 L. W. 54, a Division Bench of this Court to which one among us (<NAME>, J.) was a party said thus:

The principles governing the circumstances in which the appellate court can interfere with a discretionary order of the trial court granting or refusing injunction were laid down by Lord <NAME> in <ORG> v. <NAME>, and the other members of the <ORG> agreed with him. They were reiterated by him in <ORG> v. <ORG>. The following passage, in the later judgment is relevant: In an expedited appeal by the company against the Judge's refusal to grant an interlocutory injunction, the Court of Appeal 1982 Q.B. 1114 delivered an extempore judgment on May 18, 1982, shortly the publication in the Weekly Law Reports (1988) 2 W.L.R. 322 of the decision of this <ORG> in <ORG> v. <NAME>, in which this <ORG> took occasion at page 220, to point out that in appeal from the Judge's grant or refusal of an interlocutory injunction, an appellate court, including your Lordships' <ORG>, must defer to the Judge's exercise of his discretion and must not interfere with it merely upon the ground that the members of the appellate court would have exercised the discretion differently. The function of an appellate court is initially that of review only. It is entitled to exercise an original discretion of its own only when it has come to the conclusion that the Judge's exercise of his discretion was based on some misunderstanding of the law or of the evidence before him, or upon an inference that particular facts existed or did not exist, which although it was one that might legitimately have been drawn upon the evidence, that was before the Judge, can be demonstrated to be wrong by further evidence that has become available by the time of the appeal or upon the ground that there has been a change of circumstances, after the judge made his order that would have justified his according to an application to vary it. Since reasons given by Judges for granting or refusing interlocutory injunctions may sometimes be sketchy, there may also be occasional cases. Where even though may no erroneous assumption of law or fact can be identified the judge's decision to grant or refuse the injunction is so abhorrent that as it must be set aside upon the ground that no reasonable Judge regardful of his duty to act judicially could have reached it. It is only if and after the appellate court had reached the conclusion that the Judge's exercise of his discretionment he set aside for one or other of these reasons, that it becomes entitled to exercise an original discretion of its own.

47. I have already stated that the trial court exercised its discretion in refusing the injunction. The lower appellate court did not enter a finding that the decision arrived by the trial court is capricious or illegal, or that the refusal of injunction was against any of the settled principles of law. It re-appreciated the entire facts and came to the conclusion that the plaintiffs are entitled to injunction. Unless there is a finding that the decision of the trial court is wrong, the discretion exercised by it should not be interfered with.

48. In case injunction is refused, plaintiffs have got other remedies open. The loss that may be sustained by them, can be compensated in costs and damages. The same can be ascertained and valued on the materials available. Unless the plaintiffs prove that they will be put to irreparable injury if injunction is not granted, they are not entitled to get an injunction order as prayed for by them. This principle was not considered by the lower appellate court. Balance of convenience is also to be considered alone with the aspect of 'irreparable injury'. Both the aspects, namely, balance of convenience and irreparable injury go together. I do not think any irreparable injury would be caused to the plaintiffs if injunction is refused. Likewise, the balance of convenience is also not in favour of the plaintiffs for getting an injunction order. The lower appellate court has passed the order without taking into consideration the legal principles enunciated under Sections 14 and 41 of the Specific Relief Act read with Order 39, Rules 1 and 2 of the Code of Civil Procedure. It interpreted the agreement, and assumed that the plaintiffs are entitled to get an order of injunction as a matter of right. The said approach has caused material injustice.

49. Whether any payment has been made pursuant to the agreement and whether Ex. P-28 has been executed with intent to implement it or only for the purpose of creating an evidence for taking a bank loan, are all matters to be considered during trial.

50. In the result, the civil revision petition is allowed. The judgment of the lower appellate court is set aside. The injunction application filed by the plaintiffs before the trial court is dismissed. The order of the trial court refusing injunction is restored no costs.


PETITIONER: PRAGA TOOLS CORPORATION Vs. RESPONDENT: SHRI C. A. IMANUAL & ORS. DATE OF JUDGMENT: 19/02/1969 BENCH: <NAME>, J.M. BENCH: <NAME>, J.M. BHARGAVA, <NAME> CITATION: 1969 AIR 1306 1969 SCR (3) 773 1969 SCC (1) 585 CITATOR INFO : RF 1970 SC1150 (10) F 1975 SC1329 (5) MV 1975 SC1331 (124,126) RF 1976 SC2216 (7) D 1979 SC1628 (28) RF 1981 SC 212 (38,51) RF 1986 SC1571 (47,52) RF 1988 SC 469 (6) F 1989 SC1607 (20) ACT: Constitution of India, Art. 226- Writ of mandamus whether can be issued against a company-<ORG> holding petition under Art. 226 to be misconceived but still granting declaration to some petitioners that action of company against them was illegal--Competence of <ORG> to pass such order. HEADNOTE: The appellant was a company registered under the Companies Act , 1913. At the material time 56% of its shares were held by <ORG>, 32% by <ORG> and 12% by private individuals. On July 1, 1961 a settlement was arrived at between the company and the workmen's union under which the workmen inter alia agreed to observe industrial truce for a period of three years i.e. upto July 1, 1964 and not to resort to strikes, stoppage of 'work or go slow tactics. On December 10, 1962 the company and the said union entered into a supplementary settlement under which the company agreed not to retrench or lay-off any of the workmen during the said period of truce. The said two settlements were arrived at and recorded in the presence of the Commissioner of Labour under s. 2(p) and s. 18(1) of the Industrial Disputes Act, 1947 and were to be in force as aforesaid until July 1, 1964. On December 20, 1963, however, the company entered into another agreement with the said union. The effect of this agreement was to enable the company notwithstanding the two earlier settlements to carry out retrenchment of 92 of the workmen with effect from January 1, 1964. Some of the affected workmen filed a writ petition under Art. 226 of the Constitution praying for a writ of mandamus against the company restraining it from giving effect to the said agree- ment. The Single Judge dismissed the petition on merits. In appeal <ORG> held that the company being one registered under the Companies Act and not having any statutory duty or function to perform was not one against which a writ petition for mandamus or any other writ could lie. No such petition could also lie against the conciliation officer who had signed the agreement, as on the facts of the case it was not he who sought to implement the agreement. <ORG> however held that though the writ petition was not maintainable it could-grant a declaration in favour of three of the petitioners that the impugned agreement was illegal and void. The competency of the <ORG> to make such a declaration was challenged by the company in appeal before this Court. HELD : (i) ",The condition precedent to the issue of a mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is, in form, a command directed to a person, corporation or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is however not necessary that the person or authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society 774 is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purposes of fulfilling public responsibilities. [778 H-779 C] In the present case the company being a non-statutory body and one incorporated under the Companies Act there was neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a mandamus nor was there in its workmen any corresponding right for enforcement of any such statutory or public duty. The <ORG> therefore was right in holding that no writ petition for a mandamus or an order in the nature of mandamus could lie against the company. [779 D-E] Sohan Lal v. <ORG>,  S.C.R. 738, <NAME> v. <ORG>.,  1 Q.B. 377, <CITATION> ,  1 Q.B. 498, 501, Mc. Clelland v. <ORG>, (1957) 1 W.L.R. 594, <NAME> v. <NAME>,  A.C. 40, <NAME> v. <ORG>, , Ch. 66 at pp. 90 to 91 and Attorney- General V. St. Ives R.D.C.  1 Q.B. 366, referred to. (ii)The <ORG> was however in error in granting the declaration in favour of the three workmen. [781 A] Once the writ petition was held to be misconceived on the ground that it could not lie against a company which was neither a statutory company nor one having public duties or responsibilities imposed on it by statute, no relief by way of a declaration as to the invalidity of an impugned agreement between it and its employees could be granted. The only course open to the <ORG> was to dismiss the petition and leave the workmen to the remedies under the Industrial Disputes Act . [780 <CITATION> ,  Supp. 1 S.C.R. 381 and <CITATION> ,  Supp. 2 S.C.R. 741, distinguished. JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 612 of 1966. Appeal by special leave from the judgment and order dated April 16, 1965 of <ORG> in Writ Appeal No. 37 of 1964.

<NAME> and <NAME>, for the appellant. <NAME>, for respondents Nos. 1 and 3. The Judgment of the Court was delivered by <NAME>, J. <ORG> (hereinafter referred to as the Company) is a company incorporated under the Indian Companies Act , 1913. At the material time however, <ORG> and <ORG> between them held 56% and 32% of its shares respectively and the balance of 12% shares were held by private individuals. Being the largest shareholder, <ORG> had the power to nominate the company's directors. Even so, being registered under the Companies Act and governed by the provisions of that Act, the company is a separate legal entity and cannot be said to be either a Government corporation or an industry run by or under the authority of <ORG>.

At the material time there were two rival workmen's unions in the company, <ORG> and <ORG> (hereinafter referred to as the union and the <ORG> respectively). On July 1, 1961 settlement was arrived at between the company and the said union under which the workmen inter alia agreed to observe industrial truce for a period of three years and not to resort to strikes, stoppage of work or go-slow tactics. On December 10 1962 the company and the said union entered into a supplementary settlement under which the company agreed not to retrench or lay-off any of the workmen during the said period of truce on an assurance from the said union of cooperation and willingness of the workmen to carry out alternative tasks assigned to them even if they were in a slightly lower cadre without loss of emoluments. The said two settlements were arrived at and recorded in the presence of the Commissioner of Labour under ss. 2(p) and 18(1) of the Industrial Disputes Act, 1947 and were to be in force as aforesaid until July 1, 1964. On December 20. 1963, however, the company entered into an agreement with the said union to which the said <ORG> was not a party. The agreement recited that there were several disputes between the company and the union and that some of them were the subject-matter of conciliation proceedings and some were pending arbitration or adjudication. Clause (1) provided that the said agreements dated July 1, 1961 and December 10, 1962 to the extent that they were inconsistent with this agreement would stand automatically repealed or modified by this agreement. Clause (6) stated that there was an immediate, unavoidable need for reducing substantially the overhead expenditure of the company and for effecting economy and therefore notwithstanding the agreement dated December' 10, 1962 "both the parties have prepared a list of the categories and persons who would be retrenched after careful consideration". The said list was attached to the agreement as annexure VI. Clause (6) also provided that the agreement dated December 10, 1962 stood modified so as to allow the said retrenchment to take place immediately in accordance with law. The clause further provided that in order to mitigate the consequences of the proposed retrenchment the company bad evolved a scheme of voluntary retirement with terminal benefits superior to those provided under the Industrial Tribunals Act , but the scheme of voluntary retirement would be available to the workmen only for a period of 10 days from the date of the agreement. It further provided that the company and the said union had agreed that an attempt would be made to rehabilitate the retrenched persons by helping them to obtain alternative employment and the company bad for that purpose contacted public sector and other industries and in particular <ORG>, Ranchi for absorption as far as possible of the retrenched personnel. The effect of this agreement was to enable the company, notwithstanding the two earlier settlements, to carry out retrenchment of 92 workmen mentioned in annexure VI thereto with effect from January 1, 1964.

Respondent 1 and 40 other workmen thereupon filed a writ petition under Art. 226 in <ORG> challenging the validity of the said agreement impleading therein the company, the said union and the Regional Assistant Commissioner as respondents. The petition claimed a writ of mandamus or an order in the nature of mandamus or any other order or direction restraining the respondents to implement or enforce the said agreement. The writ petition was in the first instance heard by a learned Single Judge of <ORG> before whom the workmen raised the following contentions : (1) that the said agreement dated December 20, 1963 was invalid as it was entered into by the union in collusion with the company and was in violation of the said two earlier settlements, (2) that there could be no industrial dispute within the meaning of s. 2(k) of the Act as the said two earlier settlements, not having been terminated under s. 19(2) were in force, that therefore there could not be a valid conciliation under S. 12 and accordingly the fact of the conciliation officer having signed the impugned agreement gave no binding force to it, (3) that the retrenchment of the 92 work-men was illegal and void as it was in breach of s. 25(F) inasmuch as no notice thereof was given to the appropriate Government, and (4) that the company being under the management of <ORG>, the appropriate Government in regard to the dispute was <ORG> and not <ORG> and consequently the impugned agreement which was signed by the conciliation officer appointed by <ORG> was not valid and no retrenchment could validly be effected under the force of such agreement. The learned Single Judge negatived these contentions holding that the company was neither an industry run by or under the authority of <ORG> nor under its management but being a company registered under the Companies Act the appropriate Government was <ORG>. He also held that there was no proof of the said union having entered into the impugned agreement in collusion with the company. He further held that the union by its letter dated April 5, 1963, had raised an industrial dispute and had thereby requested that the question of retrenchment should be settled between the parties, that the said dispute with the consent of the company and the union was brought for conciliation before the conciliation officer and that the impugned agreement, having been brought about in the course of the said conciliation proceedings, was binding on all workmen including the petitioners in the writ petition despite the fact that they were members of the <ORG> and not of the union. In this view the learned Single Judge held that it was not necessary for him to decide the preliminary objection raised by the company that no writ petition for a mandamus could lie against it. He dismissed the writ petition on merits on the basis of the aforesaid findings given by him. 28 out of the said 41 workmen who had filed the writ petition filed a letters patent appeal against the said judgment. <ORG> of <ORG> which heard the appeal held : (1) that since the dispute relating to the company's right to retrenchment was already settled under s. 18(1) by the said supplementary settlement of December 10, 1962, no industrial dispute could be said to exist or arise until the said settlement was duly terminated under S. 19(2) , that therefore there could be no valid conciliation proceedings in respect of the question of retrenchment and that the impugned agreement permitting the company to retrench, though it bore the signature of the conciliation officer, was not a valid agreement; (2) that so long as the earlier settlements were not terminated they held the field, and (3) that the said letter dated April 5, 1963 relied on by the learned Single Judge as having raised an industrial dispute regarding retrenchment did not in fact contain or raise any such question. <ORG> held that the said letter raised only the question of revision of wage-structure and other demands but not the question of retrenchment. The letter of July 29, 1963 of the conciliation office, to the company relied on by the company also referred to the demands contained in the said letter of April 5, 1963, namely, the revision of wage-structure, dear- ness allowance, promotion and other matters, but not the question of the company's right of retrenchment. <ORG> therefore held that there was nothing on record to show that retrenchment was the subject-matter of any conciliation before the conciliation officer and therefore any agreement conferring on the company the right to retrench so long as the said earlier settlements were not terminated was invalid in spite of the conciliation officer having given his assent to, and affixed his signature on it. The learned Judges however, held that the company being one registered under the Companies Act and not having any statutory duty or function to perform was not one against which a writ petition for a mandamus or any other writ could lie. No such petition could also lie against the conciliation officer as on the facts of the case that officer did not have to implement the impugned agreement. <ORG>, however, held that though the writ petition was not maintainable it could grant a declaration in favour of three workmen, namely, appellants 6, 16 and 25 before it, that the impugned agreement was illegal and void and dismissed the writ petition subject to the said declaration. The company challenges in this appeal by special leave the validity of this judgment making such a declaration.

Thus the only question which arises in this appeal is whether in the view that it took that the writ petition was not maintainable against the company <ORG> could still grant the said declaration.

In our view <ORG> was correct in holding that the writ petition filed under Art. 226 claiming against the company mandamus or an order in the nature of mandamus was misconceived and not maintainable. The writ obviously was claimed against the company and not against the conciliation officer in respect of any public or statutory duty imposed on him by the Act as it was not he but the company who sought to implement the impugned agreement. No doubt, Art. 226 provides that <ORG> shall have power to, issue to any person or authority orders and writs including writs in the nature of habeas corpus, mandamus etc., or any of them for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose. But it is well understood that a mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest. Thus, an application for mandamus will not lie for an order of restatement to an office which is essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute. (see <CITATION> ) (1). In <NAME> v. <ORG>. (2) mandamus was refused against the Industrial court though set up under the Industrial Courts Act, 1919 on the ground that the reference for arbitration made to it by a minister was not one under the Act but a private reference. "This Court has never exerciseda general power" said <NAME>, J., in <CITATION> (1)"to enforce the performance of their statutory duties by publicbodies on the application of anybody who chooses to apply fora mandamus. It has always required that the applicant for a mandamus should have a legal and a specific right to enforce the performance of those duties". Therefore, the condition precedent for the issue of mandamus is that there is in one claiming (1)  S.C.R. 738. (2)  1 Q.D. 377. (3)  1 Q.D. 498, 501.

it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is, in form, a command directed to a person, corporation or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for ins-Lance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purposes of fulfilling public responsibilities. (cf. Halsbury's Laws of England, (3rd ed.) Vol. 11, p. 52 and onwards).

The company being a non-statutory body and one incorporated under the Companies Act there was neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a mandamus, nor was there in its workmen any corresponding legal right for enforcement of any such statutory or public duty. <ORG>, therefore, was right in holding that no writ petition for a mandamus or an order in the nature of mandamus could lie against the company.

The grievance of the company, however, is that though <ORG> held rightly that no such petition was maintainable, it nevertheless granted a declaration in favour of three of the <ORG> workmen, a declaration which it could not issue once it held that 'the said writ petition was misconceived. The argument was that such a declaration, if at all, could only issue against public bodies or companies or corporations set up or controlled by statutes in respect of acts done by them contrary to or in breach of the provisions of such statutes. If a public authority purports to dismiss an employee otherwise than in accordance with mandatory procedural requirements or on grounds other than those sanctioned by the statute the courts would have jurisdiction to declare its act a nullity. Thus, where <ORG> dismissed a clerk for reasons not authorised by the relevant conditions of service a declaration was granted to the applicant by <ORG>. (<NAME>. <NAME> v. <ORG>) (1) Even where the statutory power of dismissal is not made subject to express procedural requirements or limited to prescribed grounds courts have granted a declaration that it was invalidly exercised if the autho-

(1) [1957] 1 W.L.R. 594.

rity has failed to observe rules of natural justice or has acted capriciously or in bad faith or for impliedly unauthorised purposes. (see <NAME> v. Baldwin(1) and <NAME> v. <ORG>) (2). Declarations of invalidity have often been founded on successful assertions that a public duty has not been complied with. (see Attorney-General v. St. Ives R.D.C.) (3). It is, therefore, fairly clear that such a declaration can be issued against a person or an authority or a corporation where the impugned act is in violation of or contrary to a statute under which it is set up or governed or a public duty or responsibility imposed on such person, authority or body by such a statute. <ORG>, however, relied on two decisions of this Court as justifying it to issue the said declaration. The two decisions are <CITATION> (4) and <CITATION> ( 5 ) . But neither of these two decisions is a parallel case which could be relied on. In the first case, the declaration was granted not against a company, as in the present case, but against <ORG> and the declaration was as regards the invalidity of certain clauses of a notification issued by the Government in pursuance of power under s. 5 of the Minimum Wages Act, 1948 on the ground that the said clauses were beyond the purview of that section. In the second case also, certain rules made under the Cochin Tobacco Act of 1081 (M.E.) and the Travancore Tobacco Regulation of 1087 (M.E.) were declared void ab initio. These cases were therefore not cases where writ petitions were held to be not maintainable as having been filed against a company and despite that fact a declaration of invalidity of an impugned agreement having been granted. In our view once the writ petition was held to be misconceived on the ground that it could not lie against a company which was neither a statutory company nor one having public duties or responsibilities imposed on it by a statute, no relief by way of a declaration as to invalidity of an impugned agreement between it and its employees could be granted. <ORG> in these circumstances ought to have left the workmen to resort to the remedy available to them under the Industrial Disputes Act by raising an industrial dispute thereunder. The only course left open to <ORG> was therefore to dismiss it. No such declaration against a company registered under the Companies Act and not set up under any statute or having any public duties and responsibilities to perform under such a statute could be issued in writ proceedings in respect of an agreement which was essentially of a private character between it and its workmen. The (1)  A.C. 40. (2)  Ch. 66 at pp. go to 91. (3)  1 Q.B. 366. (4)  Supp. 1 S.C.R, 381. (5) Supp. 2 S.C.R. 741.

<ORG>, therefore, was in error in granting the said declaration.

The result is that the appeal must be allowed and the said declaration set aside. In the circumstances of the case we make no order as to costs.

<NAME>

Appeal allowed.


JUDGMENT

1. This is a plaintiffs' appeal arising out of a suit brought for ejectment of the defendants from certain plots. The defendants pleaded that there was a patta or lease of the plots in dispute with power to the defendants and their heirs to plant grove and construct building's. The Assistant Collector dismissed the suit. An appeal was preferred to the District Judge who would have heard the appeal even if the suit had been filed in <ORG>, and who was therefore competent under Section 269, Tenancy Act, to dispose of the appeal if the whole matter was before him. <NAME> upheld the decree of the trial Court. On appeal a learned Judge of this Court has come to the conclusion that the plaintiffs must fail because of the provisions of Section 53-A, T.P. Act , which has a retrospective effect.

2. Now before the addition of this section it was held by a Full Bench of this Court in <CITATION> A.I.R. 1928 All. 641, that the doctrine of part performance applied in England had no force in India. Later their Lordships of <ORG> in <CITATION> A.I.R. 1934 P.C. 235, laid down that the'doctrine of part performance would not apply to a case where an action had commenced before the enactment of Section 53-A . At p. 659 their Lordships noted that the view expressed in that case must be understood to be referable to the state of the law before the partial importation into it of the English equitable doctrine of part performance. Obviously Section 53-A could not affect a pending action. The learned Counsel for the appellants has relied on a <ORG> case of <ORG> in <NAME> v. Jainandan Jha A.I.R. 1935 Pat. 291. But there too the action had commenced before the enactment of this new section which was therefore not applicable, and it was on this very ground that the learned Judges distinguished <ORG> case already quoted above. A number of other cases have been relied upon by the learned Counsel for the appellants, but with the exception of one case they are all cases where the suits were pending when the amendment came into force. Accordingly they are not really in point. The solitary case which may be said to support the contention of the appellants is the case in <CITATION> . A.I.R. 1935 Bom. 91. But that was also a case where there was no writing signed by the contracting parties from which the terms of the transfer could be ascertained. Section 53-A was therefore not applicable. In the course of the judgment the learned Judge however observed that as the amounts were paid prior to 1st April 1930, when Section 53-A came into operation, the section was not applicable. These were observations which were not necessary for the purposes of the case, and Section 63 of Act 20 of 1929 was apparently not brought to their notice.

3. The case in <CITATION> A.I.R. 1934 All. 701, decided by <NAME>, J., was also a case where the suit had been filed in 1929 before the corning into force of Section 53-A . On the other hand the case in <CITATION> A.I.R. 1934 All. 768, decided by one of us, is a ase directly in point where the suit had been filed after the coming into operation of Section 53-A , and it was held that the provisions of the section governed the case, although the transaction had arisen before the coming into force of the section. <CITATION> A.I.R. 1932 All. 489, decided by a Pull Bench of which one of us was a member, the point was made clear that Section 63 of Act 20 of 1929 had prevented only certain specified sections from having a retrospective effect, and therefore by implication it was intended that the other sections should have such an effect. As regards the other sections not specified, the provision in (d) is to the following effect:

And nothing in any other provision of this Act shall render invalid or in any way affect anything already done before the 1st April 1930, in any proceeding pending in a <ORG> on that date.

4. The provision quoted clearly means that so far as the sections, other than those specified in this Section 63 , are concerned, nothing in them shall render invalid or in any way affect anything already done before 1st April 1930, when any action is pending on that date; that is to say, where the transaction had taken place before 1st April 1930, and an action in respect of it is actually pending on that date, the new sections would not affect the rights of parties in such litigation. It follows that the legislature intended that where no such action was pending on 1st April 1930, then the provisions of these sections would be applicable even though the transactions came into existence prior to that date. Now Section 53-A merely creates a bar against the transferor from enforcing against the transferee any right in respect of the property, when possession has been delivered, on the sole ground that there was no registered document. There is no reason why this bar should not come into existence by operation of law on 1st April 1930; when no litigation in respect of it was pending and the defendant was in possession. Thereafter the defendant had an absolute protection under this section and he can resist a suit subsequently filed on the ground of having acquired an absolute right under this section on 1st April 1930. Prom this point of view it may even be said that he is not seeking to give a retrospective effect to Section 53-A , but is really claiming protection under that section with effect from 1st April 1930, the date on which it came into effect. The only point that remains for consideration is whether Section 53-A is applicable to leases also. No doubt Section 105 defines a lease as a transfer of a right to enjoy such property and does not speak of a transfer of an interest in such property. But Section 108(B)(j) speaks of the lessee transferring the whole or any part of his interest in the property. Similarly Sections 111(d) and (e) refer to the interest of the lessee and the lessee yielding up his interest.

5. It is also to be noted that Section 53-A , has been added in Ch. 2, T.P. Act , which contains a general provision governing all transfers. Indeed Section 117 which makes the provisions of Ch. 5 not applicable to leases for agricultural purposes would not take out even such leases from the operation of the provisions in Oh. 2. Several sections in this chapter show that the legislature intended that a lease should be treated as a transfer of property. Section 6(1) prevents a lessee of an estate under the management of <ORG> from being authorized to assign his interest as such lessee. Section 10 specially mentions a lease as being one of the kinds of transfer contemplated in that section. Similarly Section 12 implies that lease is a transfer of property. Illus. (a) to Section 25 is of a lease of a farm, and so is also the illustration to Section 42 . If a lease of property were not to be regarded as a transfer of property within the meaning of Ch. 2, a considerable difficulty would be caused by not applying provisions like those in Sections 43 and 52 , etc. to such a transfer. We must therefore hold that the transfer of immoveable property contemplated by Section 53-A includes a transfer by lease. We accordingly dismiss this appeal with costs.