( 1 ) THIS is a revision application by the original defendant of the Civil Suit no. 112 of 1981 pending in the Court of Civil Judge (J. D.) at Gandhinagar. The opponent herein is M/s. Maheshkumar and Co. the plaintiff who have filed the aforesaid suit for a declaration that the contract of lifting fly-ash alleged to be entered into between the parties was in operation for a period of three years and the plaintiff wanted an injunction restraining the defendant the Gujarat Electricity Board from disturbing the plaintiff while lifting the fly-ash from Gandhinagar Power Station belonging to the defendant Electricity Board. Along with the suit an application ex. 5 for an interim injunction was given by the plaintiffs. The learned trial Judge after hearing both the sides had refused to grant that injunction. Being aggrieved by the said order of the learned trial Judge the Misc. Appeal No. 118/81 had come to be filed by the original plaintiff seeking the injunction to operate till the disposal of the suit. The learned Extra Assistant Judge Mr. H. P. Hathi by his impugned order held as follows:"appeal is allowed and respondent defendant is restrained from disallowing the appellant pltf. to lift fly-ash till the decision of the suit on a condition that appellant pltf. would if he succeeds pay for flyash lifted in pursuance of the terms decided by the court and if he facts he shall pay Rs. 40. 00 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. 25. 00 per truck-load and furnish guarantee or surety in the court to pay balance at the rate of Rs. 15. 00 or any other rate that the court 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 Courts revisional jurisdiction under sec. 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 generation 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 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 bad given a notice inferring 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 Boards 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 upto 11-9-81 the plaintiff continued to lift flying 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.

( 3 ) THE trial court Judge concluded that there was no prima facie case to believe that the contract was for three years. He also held that the contract was in respect of the movable things the breach of which could certainly be remedied by way of damages. The learned Judge further held as follows :"on the other hand there is apparent loss to defendant a