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Suit No 152 and Civil Miscellaneous Application No. 2530 of 1985, decided on 29th April, 1986.

‑‑‑O.XXXIX, Rr.l & 2‑‑Specific Relief Act (I of 1877), S.42‑‑Master and servant‑‑Suit for declaration and permanent injunction‑‑Application seeking temporary injunction withdrawn by plaintiff on undertaking that no further action was being contemplated by defendant against plaintiff‑‑Plaintiff's services thereafter terminated by defendant‑‑Plea of violation of undertaking and violation of order of Court allowing withdrawal of application for temporary injunction, held, would not be tenable in view of fact that defendant did not undertake to take no action in future against plaintiff as per order of withdrawal of application of temporary injunction.

Ishtiaq for plaintiff.

Afzal for respondent.

The plaintiff has filed this suit for declaration and permanent injunction against the defendant praying that the show‑cause notice issued against her is mala fide and illegal and that the defendant may be restrained from taking any disciplinary action or dismissing or terminating her service. The plaintiff was a Headmistress of the School and it is alleged that due to mala fide reasons and in order to replace her by Deputy Headmistress, a show cause notice, dated 18‑2‑1985 was served upon the plaintiff. She replied this notice on. 5‑3‑1985 and filed the present suit on 6‑3‑1985 alleging that after service of notice and till the reply was made the defendant No.2 had been threatening her and asking for her resignation from service. An application under Order XXXIX Rule 1, C.P.C. was filed, notice of which was issued for 10‑3‑1985, when the Advocates for the parties appeared and the following order was passed:

"1. Mr. Ishtiaq Ali, Advocate for the plaintiff has submitted in Court today, photostat copy of letter, dated 7th March, 1985 from the defendant No.2 addressed to the plaintiff. A perusal of the said letter shows that except issuing to the plaintiff a warning of no further action is intended to be taken against her.

Mr. S.M. Afzal, Advocate for the defendants has also stated that the defendants have not taken any action against the plaintiff.

Mr. Ishtiaq Ali, Advocate states, that his client does not press, the above application and would make representations to the relevant authorities of the institution.

2. The above application is accordingly allowed to be withdrawn and disposed of as such."

The plaintiff has alleged that after this order was passed, written statement was filed by the defendant No.2 stating in para. 10, that he has not taken any action and does not intend to remove the plaintiff from the Service. However, on 6‑4‑1985, the defendants terminated the service of the plaintiff with immediate effect giving her three months salary in lieu of notice. The plaintiff then filed this application against the defendant and trustees of defendant No.3.

Mr. Ishtiaq the learned counsel for the plaintiff, has contended, that the defendant No.2 had given undertaking which was referred in the order, dated 10‑3‑1985 and it was on the basis of this undertaking that he had withdrawn the application under Order XXXIX, Rules 1 and 2, and in breach of that undertaking plaintiff's service was terminated. The learned counsel further contended, that by giving undertaking the defendant No.2 has prejudiced the pending proceeding in Court and also violated the order passed by the Court.

Mr. Afzal, the learned counsel for the defendant, contended, that the application is mala fide as other trustees have illegally been joined and further that the defendant No.2 at no stage had given any undertaking nor there is any order restraining the defendants from taking any action against the plaintiff.

The entire controversy, therefore, revolved round the order, dated 10‑3‑1985. A perusal of this order will show that in the first part observation has been made that the letter, dated 7‑3‑1985 is merely a letter of warning. The learned counsel for the defendant made a statement that the defendants have not taken any action against the plaintiff. On such statement the learned counsel for the plaintiff withdrew the application for injunction and stated, that the plaintiff will make representation to the relevant authorities of the institution. The learned counsel for the plaintiff states, that the observation of the learned Court as well' as the statement of the learned counsel for the defendant, do constitute an undertaking not to take any action against the plaintiff and also an order to that effect was passed by the Court. This interpretation cannot be placed to the order, dated 10‑3‑1985. The first part of the order is an expression of opinion by the Court without fixing any liability of any nature on the defendant. The second part which relates to the statement of the defendant's counsel does not mention that the defendant No.2 will not take any action in future against the plaintiff. No such undertaking has been given. In these circumstances, the question of breach of any order of injunction or any statement amounting to an order of injunction on the basis of which the plaintiff had withdrawn the application does not arise. The application is, therefore, dismissed. It may also be observed, that this application against the trustees, who were not party to the suit on 10‑3‑1985 and against whom even knowledge of the said order has not been imputed, can hardly be sustained. The application is dismissed.

A.A. Application dismissed.

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