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"Appeal is allowed and respondent-defendant is restrained from disallowing the appellant-plaintiff to lift fly-ash till the decision of the suit on a condition that appellant-plaintiff would, if he succeeds, pay for fly-ash lifted, in pursuance of the terms decided by the Court and if he fails, he shall pay Rs. 40/- per truck load and till the decision of suit, the appellant-plaintiff would be allowed to lift fly-ash during the pendency of the suit at the rate of Rs. 251- per truck load and furnish guarantee or surety in the Court to pay balance amount at the rate of Rs. 151- or any other rate that the our may decide truck load if the suit fails as such."

Being aggrieved by the aforesaid grant of injunction, the original defendant, the Gujarat Electricity Board, has invoked this High Court's revisional jurisdiction under S. 115 of the Civil Procedure Code.

2. A few facts require to be stated. The plaintiffs are a firm duly registered under the Partnership Act. The Gujarat Electricity Board, hereinafter referred to as "the Board" wanted to give a contract for lifting fly-ash (the residue of the coal used by the Board for generating steam for producing electricity) lying at Gandhinagar Power Station. The plaintiff gave its offer for lifting fly-ash as per their letter dated 6-2-81 and that the plaintiff specifically stated in that letter that the contract was to be operative for a period of three years. The plaintiffs then alleged that after the said letter, the plaintiffs were permitted to lift fly-ash with effect from 16-2-81, but about two months thereafter, that is, on 9-4-81, the Board addressed a letter informing the plaintiffs that the contract that commenced on 16-2-81 was to be operative only for a period of three months. As a result of this divergence, there ensued some correspondence between the parties and the Board had issued an advertisement, inviting offers and the original plaintiffs had given a notice, informing the Board that their action in inviting the offers was illegal, as his contract subsisted for three years. It is the say of the Board that thereafter the plaintiffs partner had seen the Board's executive and had made endorsement on the notice itself that he did not press the same and that the plaintiffs had also given their offer pursuant to the advertisement. It appears that the things went on up to 11-9-81 the plaintiff continued to lift fly-ash till then and then the plaintiffs was required to file the aforesaid suit. The matter obviously stands at the interim stage till this day.

10. Coming to the second question, I however, find that the learned appellate Judge has unfortunately grossly failed in keeping before his mind the requirements of law, which are associated with his power to exercise jurisdiction, namely, whether to grant or not to grant ad interim prayer. The learned Judge has recorded a categorical finding to the effect that the plaintiff claims movable property and that his claim could be monetarily evaluated. This is a finding of fact, which is in my view inevitable in the face of the record, as it stands before me today. Mr. Vakil appearing for the original plaintiffs submitted that the approach of the learned appellate Judge on this question was very unsatisfactory and he complained that the learned Judge had assumed this question of fact in favour of the defendant-Board. What I have stated about this Court's powers while dealing with the question of a prima facie case is to be repeated by me while dealing with this question of fact. Apart from this, it is evident that coal-ash or fly-ash is a commodity of market. What is the exact nature of that fly-ash was unfortunately not declared before me by the two learned advocates with one voice, but as a layman, I am in a position to say that it must be a residue or a left over of the coal consumed by the power station of the Board. I understand that it is popularly known as a coal ash and all bulk consumers of coal can be judicially noticed, disposing of this residue. To the extent that it is a sort of some residue, there was no controversy, but when Mr. Shah tried to equate it with coal ash Mr. Vakil joined issue with him, but to me this difference appears to be without any distinction. As far as the subject matter of this revision application is concerned, it is residue of burnt coal and there cannot be any controversy there. After having held that if the plaintiffs ultimately succeed in establishing that their contract was for three years and not for three months the plaintiff could be compensated in terms of money, the learned Judge should have seen that there lacked basically jurisdictional fact as far as the jurisdiction to grant an interim injunction is concerned. The learned Judge has not quoted any provisions of law, but from what has been extracted by me above from the judgment of the learned trial Judge and from what has been extracted from the judgment of the learned appellate Judge, it is clear that the well-known legal provisions that are at the base of the above-mentioned three pro. Positions, Particularly the last two ones, are rooted in the provisions of law, namely, Sections, 14 and 41 of the Specific Relief Act. Whether those sections are named specifically or not is a question altogether not material, once we find that the principles provided for there in those sections were actually before the authorities below. I have to emphasise this fact because Mr. Vakil, who is shown on record to have argued the matter before the learned appellate Judge, asserted with his usual vehemence that these sections were not urged before the learned appellate Judge. When the question is pertaining to jurisdiction and a jurisdictional fact, the specific mention of these sections is uncalled for, because it is implicit that the Judges who deal with those aspects of the problem were dealing with the questions statutorily laid down. Section 14 of the Specific Relief Act categorically lays down as follows :-

12. From various circumstances set out in the affidavit-in-reply and even from the common sense point of view also, it can be said safely that coal ash or fly ash is a movable property, which is an ordinary article of commerce and it cannot be said to be a thing of special value or interest to the plaintiffs, though Mr. Vakil in the strain of his submission went to the extent of saying that fly-ash was a rare commodity. It was difficult to accept this submission of his, because in his submission he had also suggested that his clients would be put to great loss because they in their turn had entered into contract with other parties to sell this property. It was for the original plaintiffs to establish that this commodity was not an ordinary article of commerce and I hold that the learned appellate Judge also because of these circumstances has found as a matter of fact that the plaintiffs could be compensated in terms of money. Section 20 of the Specific Relief Act also in the connection deserves to be referred to, because Mr. Vakil tried to base a little strange argument on this section. The said section provides that the jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so. Mr. Vakil wanted me to interpret the section to mean that despite all said before, the Court was always free in the exercise of that wide discretion to grant specific performance in any cases. When Section 14 in terms specify the cases in which specific performance cannot be granted, it cannot be understood that S. 20 is a departure from the rigours of S. 14. This sort of interpretation sought to be placed by Mr. Vakil on Section 20 runs counter to the' known canons of construction and I am unable to appreciate the force with which he tried to put forward this submission.