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30. Question Nos. (i) and (ii) can be examined together-

31. The relevant portion of State Amendment made in Order 39, Rule 2, Sub Rule (2) adding the proviso is under:

Provided that no such injunction shall be granted (a) where no perpetual injunction could be granted in view of the provision of Section 38 and 41 of the Specific Relief Act, 1963...and any order for injunction granted in contravention of these provisions shall be void.

32. Sections 38 and 41 of the Specific Relief Act are also being quoted below:

Section 38 : Perpetual injunction when granted (1) Subject to the other provisions contained in or referred by this chapter a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.

(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.

(3) When the defendant invades or threatens to invade the plaintiffs rights to, or enjoyment of property the court may grant a perpetual injunction in the following cases, namely:

34. There is another aspect of the matter that the suit of the plaintiff respondent No. 3 was essentially for payment of salary for a particular period and for future. A suit for perpetual injunction for payment of salary is barred actual damage caused or likely to be caused can be ascertained. It is not the case where damage is of such a nature that they cannot be ascertained. The relief in the suit to the extent it seeks a direction by perpetual injunction to make payment of salary which became due to the plaintiff, is barred by the provisions of Section 38(31)(b) of the Specific Relief Act and since the plaintiff had equally efficacious remedy under the provisions of U.P. Act No. 24 of 1971', the suit of the plaintiff for permanent injunction was barred by Section 41(h) of the Specific Relief Act. Since the plaintiff was not entitled to get perpetual injunction in view of the provisions of Section 38 and 41 of the Specific Relief Act, no temporary injunction could have been granted to the plaintiff in view of the State Amendment in Order 39 Rule 2 Sub-rule (2) proviso (a).

36. I am also satisfied that the suit for mandatory injunction filed by the plaintiff respondent No. 3. being Suit No. 118 of 1992 Rai Bahadur Singh v. D.I.O.S. Etah is also barred by the provisions of Section 41(IV) of the Specific Relief Act and the Plaint as such is not maintainable.

16. Complete answer thus has been given to the issue raised. On the basic of dictum noted above suit filed by Nagesh Kumar Singh is of is clearly barred as here also prayer is for mandatory injunction to make payment of arrears of salary and future salary which became due, which is clearly barred by the provisions of Section 38(3)(b) of Specific Relief Act, and Section 41(h) of Specific Relief Act, as damage are assesable and claim could have been examined under U.P. Act No. 24 of 1971. Nagesh Kumar Singh is not at all entitled for perpetual injunction in view of Section 38 and 41 of Specific Relief Act, as perpetual injunction may be granted to the plaintiff to prevent breach of an obligation existing in his favour, whether expressly or by Implication. Here there is no obligation existing in favour of plaintiff either expressly or by implication, his appointment being void on the face of it, consequently no temporary injunction was permissible in view of the State Amendment In order 39 Rule 2, Sub-rule 2 proviso and that too without there being prayer for declaration that appointment of Nagesh Kumar Singh was valid.