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Judgment
This revision petition is directed against the order dated: 14071999 passed by the learned IV Addle, District Judge. Srinagar in appeal No:
57/98 filed therein by the petitioners against the order dated: 05101998 and order dated: 21121998. Both these orders were passed by the
learned City Munsiff. Srinagar. In the order dated: 05101998 direction was given to the petitioners herein to implement the court order dated:
07031998 and supply initially 200 Kgs of raffle yarn for which respondent had already deposited the price. The supply was to be made within a
period of ten days from the receipt of the order. Further direction was given that when this supply of 200 Kgs of raffle yarn was received,
respondent had to deposit the price of the remaining quantity of the raffle yarn within seven days. In terms of the order dated: 21121998. the initial
accounts of the petitioner herein maintained in the Jammu Kashmir Bank Ltd... Amirakadal. and residency road. Srinagar were attached. Both the
above stated orders were challenged in appeal before the learned IV Addl. District Judge. Srinagar vide order dated: 14071999. The appeal was
dismissed with a further observation that even if the petitioners do not produce the raffle yarn it is their obligation to procure the same form open
market and ensure the compliance of the court order.
The factual matrix of the case lies in a narrow compass. Respondent herein filed suit for mandatory injunction against petitioners praying for the
relief that they must be directed to supply 2845 Kgs of raffle yarn of the quantity of 1.42 and 2.42 at the rate of Rs. 111/per Kg. The claim put up
in the plaint was that respondent herein vide order No. MD/SIS/SM9/7980 dated: 25101986 had been alloted 5100 Kgs of Raffle Yarn of the
above stated quality on the terms of conditions contained in the said allotment order. As a consequence of the allotment, respondent on 03111986
deposited Rs. 20,000/ as security vide receipt No. 2186 dated: 03111986. Respondent lifted 2255 Kgs of said yarn against price but the
remaining quantity was not supplied. The case of the respondent is that there was a subsisting contract between the parties and petitioners were
under obligation to make available the balance quantity of raffle yarn in the quantity of 2845 Kgs at the agreed price. It was also pleaded that
respondent approached the petitioners many a times personally as well as through written communication to make good the deficit supply but all
efforts ended in vain. Hence the suit was filed.
In the written statement, the petitioners raised the preliminary objection regarding the maintainability of the suit. It was alleged that he had failed to
lift the whole quantity of 5100 Kgs of raffle yarn within a period of one month. As agreed in terms of the allotment order and on the basis of this
breach of the stipulations he was not entitled to claim the remaining quantity. That there was no document on the record to show that there was a
subsisting contract between the parties and in the absence of any contract the suit was not maintainable.
The suit was accompanied by an application made by the respondent under Order 39 Rule 1 CPC wherein prayer was made for the grant of
interim relief that petitioners may be directed to supply the remaining quantity of raffle yarn. On 07031988, the trial court passed the order holding
that respondent had a prima facie case and directed the petitioners herein to supply the balance of raffle yam at the stipulated rate of Rs. 111/ per
Kg during the pendency of the suit. Condition was imposed that respondent shall furnish undertaking to the effect that in the event of failing in the
suit he would return the balance of yarn so supplied or in the alternative the price of the same prevalent at the time of disposal of the suit should be
paid. This order was challenged in appeal before the learned District Judge, Srinagar who transferred the appeal to the learned Ilnd Addl. District
Judge, Srinagar. After hearing the counsel for the parties, the appellate court dismissed the appeal but imposed the condition that respondent shall
not withdraw the amount of Rs. 20,000/ already deposited with the petitioner herein. Respondent had to make cash down payment against the
quantity which was to be supplied to him at the agreed rate and in case there was a difference with the market rate then he had to give additional
security of that amount before the trial court. This order was passed by the appellate court on 14071988 which was challenged in revision petition
before this court (C.R. No. 166/88). The revision petition was dismissed on July 27, 1988. The plea of the petitioners herein that supply of the
remaining yam was refused because respondent had failed to lift the whole quantity within one month, was met in the order with the observation
that this was a matter to be tried by the trial court after the issues are framed and a question of evidence. It was also held that the present case was
a case of allotment and the below had exercised their discretionary power in favour of the respondent so the impugned order was not arbitrary or
violative of any law. It was reiterated that respondent had to pay the cost of difference in case the petitioners were held entitled to get higher cost
than what was stipulated in 1986. The trial court was found to have exercised the jurisdiction not in violation of any principle of law or perverse in
any manner so the order was maintained and the revision petition dismissed.
In this revision petition order dated: 14071999 passed by the learned IV Addl. District Judge, Srinagar has been challenged on the following
grounds :
The trial court overlooked all the letters written by the petitioners to respondents which required him to lift the entire quantity of the raffle yarn on
cash down basis in terms of the allotment order and thus the order dated: 05101998 (based on the earlier order dated: 7.3.1998) is against the
record and illegal.
That in the impugned order dated: 21.12.1998; the trial court has prejudged the willful disobedience of its order dated: 3.7.1998 when the
contempt application is at the stage of leading the evidence.
That the trial court ignored the pleadings and arguments of the petitioners that on account of abnormal circumstances prevailing in the Valley for
the last so many years, no raffle yarn is now manufactured and even then directed the supply of 200 Kgs of raffle yarn.
Respondent never deposited the difference of market price when the rate which was fixed at the time of the allotment and in the absence of
security being given on this amount, the impugned order is perverse in the eye of law.
The trial court has not given a finding how the suit was maintainable when there was no subsisting contract and violation of the conditions of the
allotment order in question.
Heard the arguments. Learned counsel appearing for the petitioner has reiterated the grounds of revision petition during his arguments and
further stated that Nowshara Spinning Mill stands gutted in mysterious fire and petitioners are not producing any yam. He has further contended
that though there was no contract between the parties yet for the sake of arguments it may be taken that there was such a contract, it has frustrated
due to factors beyond the control of the petitioners and they cannot be directed to supply the remaining quantity of the yam in question. He has
also pressed section 21 of the Specific Relief Act in his argument by stating that the suit was not maintainable as there was no contract between the
parties because the conditions of allotments order in question were not complied by the respondent. He has referred to allotment order dated:
25.10.1986 and read lastbutone clause which envisages that ""proper agreement deed incorporating all these terms and conditions will be executed
with the parties concerned as a matter or routine/procedure and after fulfilling the due procedural formalities. The draft/agreement to be executed
should be vetted by the legal advisor of the Jammu and Kashmir Industries"". In the last clause of this allotment order it is stated that in case the
supply has to exceed 5000 Kg of yarn the supply is to be made at bulk rate of Rs. 111/per Kg: exspinning mill Nowshara basis against cash down
payment terms. According to the learned counsel there is a breach of these two salient conditions of the allotment order and no equitable relief can
be granted in favour of the respondent. Concluding his arguments the learned counsel stated that allotment order is dated: 25101986 and the
respondent filed the suit on 10091987. He waited for more than eight months by not raising any finger regarding the deficient supply of raffle yam.
because he was a defaulter in making the cash down payment and lifting the quantity in bulk but when there was a hike in the price he knocked the
doors of the court. The trial court ignored the contents of the communications dated: April 30, 1990, 11071990 and 11121990 which specifically
state that he had to lift the remaining quantity of the yam against cash payment. The respondent cannot get the main relief which he claimed in the
suit by way of interim directions.
The learned counsel for the respondent controverted these arguments by stating that first round of litigation on the basis of the interim relief
granted on 07031988 ended when the revision petition was dismissed by this court on 27071989. Thereafter, respondent herein on 23091989
and 28091989 submitted the requisite undertaking before the trial court in compliance to the directions. The plea of nonmaintainability of the suit
was decided finally by this court, vide order dated: 27071989 when it was held that the trial court had acted legally and within its jurisdiction to
grant temporary injunction. In the order dated: 07031988, petitioners were directed to supply 200 Kgs of raffle yam, the price whereof stood
deposited in the court and the supply had to be made within ten days. This order has not been complied till date and this is a willful violation of the
court orders and law requires lawful orders passed by the court to be complied with. On 19071991, one officer on behalf of the petitioner
appeared before the trial court and sought opportunity to supply the required yarn in the quantity of 200 Kgs. The trial court has held that the
amount of security deposited of Rs. 20,000/ is more than the market price and on this basis it cannot be said that compliance of the court
directions have not been shown. The impugned orders do not fall within the categories of case decided as envisaged under section 115 CPC.
After considering the respective contentions of the counsel for the parties and going through the contents of the order dated: 27071989 passed
by this court in Civil Revision No. 166/1988 it can safely be said that the plea with regard to the attraction of section 35 or 73 of the Contract Act
now does not servive as already this court has considered it and given the findings thereon. Already it has been held that respondent has a prima
facie case because various questions of law and facts are required be settled regarding the fulfillment of the conditions of the allotment order in
question. However, it has not been determined that there is any contract subsisting between the parties. On these admitted facts the controversy
has to be viewed whether the trial court has acted illegally or committed material irregularity in the procedure of the trial which has effected the
ultimate decision arrived at. When order dated: 07031988 was under challenge in appeal, the appellate court in its decision had directed the trial
court to determine the market rate of the raffle yarn. This court while deciding the revision petition had ratified this direction. The trial court did not
address itself on this salient feature and in a casual manner directed in terms of the impugned order dated: 05101998 to implement its earlier order
dated: 07031988 by initially supplying 200 Kgs of raffle yarn for which the respondent had already deposited the price within a period of ten days
from the receipt of the order. After the supply of 200 Kgs was made and received by the respondent he had to deposit the price of the remaining
quantity within a period of seven days. In the earlier order dated: 07031988, the petitioners herein were directed to supply the balance of raffle
yarn at the stipulated rate of Rs. Ill/ per Kg, pending disposal of the suit. Since the trial court has failed to determine the market price of the yarn in
compliance to the directions of the superior courts before ordering the supply in terms of the impugned order dated: 05101998 it is an error of
procedure in the course of the trial effecting materially the ultimate decision. The order as such has caused miscarriage of justice. The other
impugned order dated: 21121998 has been passed in hot haste whereby the accounts of the petitioners have been attached without ascertaining
the fact whether there was willful disobedience because the evidence was yet to be led which is evidenced from the order dated: 05101998
wherein it is stated that ""regarding the contempt plaintiffs are at liberty to lead further evidence. For this purpose they shall make an application
before this court within seven days"". The impugned order dated: 21121998 does not contain any reference to the evidence on the record and is
thus found an order passed on the basis of no evidence which is perverse in its nature.
Undoubtedly this court while de ciding revision petition No. 166/88 has held that respondent herein has a prima facie case but this finding does
not encompass the basic controversy whether the terms of the allotment order could be enforced when preliminary objection was there but they
were breached by the respondents. There is no record that in pursuance of the direction of the allotment order in question agreement was executed
between the parties. In case the respondents had not fulfilled the conditions of the allotment order how a contract could come into existence. A
trampelled or breached allotment order cannot be enforced with the aid of the interim court orders. The maintainability of the suit is a sinequanon
before any direction is given or order is passed by the court. This court has not expressed any opinion to the effect that respondent had a prima
facie case even in the absence of any contract between the parties. Preliminary objection was raised by the petitioners in their written statement
before the trial court that respondent had not filed any document from which it could be ascertained that any contract existed between the parties.
The alleged breach of allotment order is a question of fact as has been held in the order dated: 27071989 passed in the revision petition No.
166/1988 to be tried after issues are framed but existence of valid contract between the parties was a sinequanon and regarding that aspect of the
case no opinion has been expressed by this court. This is a legal question which goes to the root of the case and its notice can be taken while
exercising the revisional jurisdiction.
Hence, the revision petition is accepted and the impugned orders are quashed. Direction is given to the trial court that before any order is passed it
will address itself to the material aspect whether there was any subsisting valid contract between the parties, the breach whereof could give a cause
of action to the respondent for filing the suit. The counsel for the parties are directed to appear before the trial court on 15052000.