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What is the true scope and effect of Section 42 wait one of the questions raised before us. Section it deals with a case where a contract comprises an affirmative stipulation to do a certain act coupled with a negative stipulation express or implied, not to do a certain act Now if Section 42 had not been enacted, by reason of Section 41, Clause (e) it would not have been possible to grant an in-junction to restrain the breach of the negative stipulation. The breach of the negative stipulation would have been a breach of the con-tract and an injunction though limited to pre-venting the breach of the negative stipulation would have been an injunction to prevent the breach of the contract and the contract being one of which performance would not be specifically enforced, Section 41, Clause (e) would have precluded the Court from granting an injunction to prevent the breach of the negative stipulation Section 42 was therefore, enabled and it provided that in such a case even though the contract cannot be specifically enforced, the Court would still be entitled to grant an inhumation restraining the breach of the negative Stipulation, if it otherwise thinks it fit and proper so to do. The bar created against the granting of such an injunction by Section 41, Clause (e) is thus removed by Section 12 but that does not mean that the Court must grant such an injunction eyen if the effect of doing so would be to compel the defendant to specifically perform the contract. The Court has a discretion whether or not to enforce the negative stipulation by grant of an injunction that discretion is declared in no uncertain terms by Section 36 and is further emphasized by Section 38. Sub-sections (1) and (2). The language of Section 42 also shows that the discretion of the Court is not intended to he taken away by any thing stated in the section. The words used are "the circumstance that the Court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction" so that Section 41, Clause (e) shall not stand in the way of the Court in granting an injunction; but the Court would still have to consider whether in the exercise of its. discretion it should grant the injunction or not.

That the Court has a discretion in the matter is amply, borne out by various authorities. It will be sufficient to refer only to three of them. One is ILR 28 Bom 108 (supra), the other is 48 Bom LR 90: (AIR 1946 Bom 438) (supra) and the third is Shri Ambernath Mills Corporation v. Custodian of Evacuee Property, (S) AIR 1967 Bom 119. These authorities clearly lay down that even where an injunction is sought to prevent the breach of a negative covenant, it is always a matter for the Court whether to grant the injunction or not. The same is the position also in England though at one time for historical reasons a view did prevail in England that where there is a negative covenant, it must be enforced by an injunction, That view gradually underwent a change and with the realisation of the difficulties attendant upon such a rigid and inflexible view the Courts ultimately accepted that even in the case of a negative stipulation, injunction is a discretionary remedy and it may or may not be granted by the Court according to the circumstances of each particular case Some of the instances where injunction was either wholly refused or partly granted and parity refused or granted only in a modified form though the stipulation sought to be enforced was a negative stipulation will be found in Ebraman v. Bartholomew (1898) 1 Ch 671 Relv-a-Bell Burglar and Fire Alarm Co. Ltd. v. Eisler.

(1626) Ch 609 William Robinsoh & Co. Ltd. v.

Heuer, (1898) 2 Ch 451, 1937-1 KB 209 (supra) and (1954) 1 All ER 155 (supra) It would therefore, be idle to contend, that in a case falling under Section 42 the Court has no discretion whether to grant an injunction or not.

6. What then are the rules which should guide the Court in the exercise of this discretion? Now in the matter of exercise of the discretion in such cases there is one rule which has always been recognized by Courts of Equity in England and which has also found favour with Courts in India. The rule is that the Court wilt not grant an injunction to restrain the breach of a negative stipulation in a contract of personal service where the effect of doing so would be to compel the defendant to specifically perform the contract. This rule is based upon the principle that the Court will not do indirectly that which if can not do directly. The Court cannot for reasons which we have pointed out above grant a decree for specific performance of a contract of personal service. But the Court cannot escape that inhibition by granting instead an injunction to restrain the breach of a negative stipulation contained in the contract if the effect of the injunction would be to compel Specific performance of the contract by the defendant. As observed by Lindley L.J., in Whitwood's case, 1891-2 Ch 416 (supra) " the Court, looking at the matter broadly, will generally do much more harm by attempting to decree specific performance in cases of personal service than by leaving them alone and whether it is attempted to enforce these contracts directly by a decree of specific performance or indirectly by an injunction appears to me to be immaterial". What the law denounces is compelling an employee to work against his will for a particular employer and whether it is sound to be achieved by a decree for specific performance or by an injunction does not make any difference the mischief remains the same and the law insists that the mischief shall be avoided. Even in the case of (1852) 1 De G.M. & G. 604 which the Courts in England have always regarded as an anomaly not to he extended, Lord St. Leonards while issuing an injunction to prevent the preach of a negative stipulation disclaimed doing, indirectly what he could not do directly. The learned Law Lord recognized that he could not issue an injunction if bay doing so he would in effect be granting specific performance of the contract of personal service but since in his view the in junction issued by him would not have that effect, he granted the injunction. Of course in determining whether the effect of granting the injunction would be to compel the defendant to specifically perform the contractor personal service regard would have, to be paid to the practical realities, of the situation and it would have to be seen whether in the circumstances of a particular case the practical effect would be that the defendant would be rendered virtually idle and would have to starve us an alternative to going back to his employer If that is the effect of granting the injunction the Court willmot exercise its discretion in favour of granting the injunction, for the Court will not allow its process to be utilised as an instrument for compelling the employee to specifically perform the contract of personal service This was the rule on which the Court refused to grant injunction in 1898-1 Ch 671 (supra) and 1926 Ch 609 (supra) and gave an injunction in a limited form in 1937-1 KB 209 (supra). This rule is in out opinion equally applicable in India. This rule being merely a corollary of the main rule that the Court would not specifically enforce a contract of personal service must held applicable in India when we find that the main rule has received staintory recognition in India in Section 21 Clause (b) of the Specie Relief Act, 1877 and Section(1)(b) of the Specific Relief Act, 1963, Section 38(2) read with Section 14(1)(b) of the Specific Relief Act, 1968, also supports the applicability of this rule. As a matter of fad. there are decided cases in India where this rule has been applied to guide the Court in the exercise of its discretion Candy, J.. affirmed this rule in (1899) ILR 23 Bom 103 (supra) and observed that the case before him did not come within the mischief of the rule since it was not a case in which the Court was "asked to indirectly decree specific performance of the contract of personal service". A Division Bench of the Bombay High Court in (1894) ILR 18 Bom 702 (supra) also recognized, the validity of this rule and we find that in a recent decision given by Shelat, J., as he then was in Sunilchand v. Aryodaya Mills Co. Ltd., (1963) 4 Guj LR 795: (AIR 1964 Guj 115) the correctness of this rule has been accepted in its application to India. It is, therefore, clear both on principle and authority that even where a negative stipulation in a contract of personal service is sought to be enforced, the Court has a discretion in the matter and one of the prince pies which must guide the discretion of the Court is that if the effect of granting the injunction would be to indirectly compel the defendant to specifically perform the contract of personal service the Court would not grant such injunction

9. If the negative stipulation which imposes a restraint is reasonably necessary for the adequate protection of the interests of the employer, it must be enforced by issue of an injunction. But if the negative stipulation goes beyond what is reasonably necessary to protect the legitimate interests of the employer there is no reason why a Court should interpose to en force the negative stipulation The employer in the latter case would not need an injunction for protection of his interests nor would his interests be protected by issue of such injunction The only object which he could possibly hope to achieve by obtaining an injunction would be to spite or punish the employee, for daving broken the contract or perhaps to induce the employee to come back to his employment. Now it is clear from what we have said above while discussing the true basis of the rule against specific enforcement of a contract of personal service that the law docs not favour compulsion of an employee to work against his will for any employer The object to get back the employee in service is there-fore, not an object which the law countenances and it cannot be a legitimate object for enforcement of a negative stipulation that the employee would, even if not compelled, be at least induced or to use the words of Branson, J., in 1937-1 KB 209 (supra) tempted to come back. The law cannot regard such a consideration as a relevant consideration for if such a consideration were relevant, the Court would in effect be doing indirectly what it cannot do directly because the Court would be issuing an injunction in order to induce the employee to go back to his employer, a tiling which the Court should not think of doing An injunction if otherwise properly granted may have the effect of inducing or tempting the employee to go back to the service of his employer but that is not the object for which injunction can be granted by the Court. It must, therefore, be seen whether the enforcement of the negative stipulation is reasonably necessary for the protection of the legitimate interests of the employer. If it is not going to benefit the employer in any legitimate manner, the Court would not injunct the employee from exercising his skill, training and knowledge merely because the employee has agreed to it. Of course when we say this we do not for a moment wish to suggest that in such cases sanctity of contract may not be respected or may be violated with impunity. The question is only one of remedy The employee having agreed to the negative stipulation, the negative stipulation must be held binding on him and if there is breach of the negative stipulation the employer would have his remedy in damages, if any, but the Court would hot grant the extraordinary remedy by way of an in junction because by doing so beyond a more enforcement of a contractual obligation, the legitimate object or purpose would be advanced The Court would not interfere with the freedom of occupation of the employee unless it is necessary to do so for the protection of the interests of the employer To that extent, freedom of contract must yield to freedom of occupation in public interest We are, therefore, of the view that the principle laid down by Lord Macnaghten in Nordenfell case, 1894 AC 535 tion be imported in order to guide the discretion of the Court in regard to the question as fit when an injunction should be issued for breach of a negative stipulation in a contract of personal service for that principle effects a happy reconciliation and adjustment of freedom of contract and freedom of occupation and subserves public interest.