- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF AUGUST, 2025 BEFORE THE HON’BLE MRS. JUSTICE K.S. HEMALEKHA REGULAR FIRST APPEAL No.1387/2023 (DEC/INJ) BETWEEN: RAJ KUMAR .M S/O MANICKYA RAJ, AGED ABOUT 38 YEARS, R/AT #2, 3RD CROSS, NANDA GOKULA LAYOUT, SRK POST, THANISANDRA MAIN ROAD, NAGAVARA, BENGALURU-560077. ... APPELLANT (BY SMT. ANUSHKA ROY, ADVOCATE FOR SRI VIJAY B.K., ADVOCATE) AND: 1. EUROFINS IT SOLUTIONS PVT. LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT NO.540/1, DODDANEKKUNDI INDUSTRIAL AREA, HOODI, BENGALURU – 560048. PRESENTLY HAVING OFFICE AT MARUTHI PLATINUM CAMPUS, KUNDALAHALLI MAIN ROAD, OPP. HDFC BANK, LAKSHMINARAYANAPURA, AECS LAYOUT, MUNNEKOLLAL, BENGALURU-560037. 2. ALOK GUPTA, SENIOR MANAGER, AGE AND FATHER’S NAME NOT KNOWN TO THE APPELLANT, - 2 - HAVING OFFICE AT NO.540/1, DODDANEKKUNDI INDUSTRIAL AREA, HOODI, BENGALURU-560048. … RESPONDENTS (BY SRI M.B. ANIRUDH, ADVOCATE FOR R-1; NOTICE TO R-2 IS SERVED & UNREPRESENTED) THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 01.04.2023 PASSED IN O.S.NO.4556/2021 ON THE FILE OF THE VII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (C/C III ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU), DISMISSING THE SUIT FOR DECLARATION AND INJUNCTION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 04/08/2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA CAV JUDGMENT The present appeal is preferred by the plaintiff assailing the judgment and decree dated 01.04.2023 in O.S. No.4556/2021 on the file of the III Additional City Civil and Sessions Judge, Bengaluru City (CCH-25) (hereinafter referred to as ‘Trial Court’ for short). By the judgment and decree, the Trial Court dismissed the suit. 2. Suit was instituted seeking a declaration that the termination letter dated 10.08.2021 is null and void. Further, seeking relief of injunction restraining the defendants from - 3 - interfering with his work and stopping or canceling his medical insurance and other benefits. The case of the plaintiff is that the plaintiff was appointed as a Principal Associate-IT in defendant No.1-company vide appointment letter dated 27.06.2018 (Ex.P.1) and was subsequently promoted to Senior Infrastructure Lead-IT (Ex.P.2). According to the plaintiff, he discharged his duties diligently and was entrusted with additional responsibilities of desktop administration. It is his case that owing to certain complaints made against defendant No.2, a Senior Manager, he was coerced to resign, upon refusal, the defendant issued a termination letter dated 10.08.2021 without assigning valid reasons or following due process, including the issuance of a show-cause notice. 3. The defendant-company remained ex-parte. The plaintiff examined himself as PW.1 and marked documents at Exs.P.1 to P.12. Ex.P.9 is the order of termination. - 4 - 4. The Trial Court held that the plaintiff’s pleadings alleging absence of reasons are contrary to the recitals in Ex. P.9. The Trial Court found that the ground for termination was indicated in Ex. P.9 as ‘rude behavior in several instances with his peers and line of management’. The Trial Court found that the plaintiff suppressed material facts and approached the Court with unclean hands and dismissed the suit. 5. Heard the learned counsel appearing for the appellant and the learned counsel appearing for respondent No.1. 6. Learned counsel appearing for the appellant would contend that the Trial Court erred in dismissing the suit without properly appreciating the oral and documentary evidence adduced by the plaintiff, particularly Exs.P.1 to P.12, which established the nature of employment, promotion and abrupt termination without due process. It is argued that the Trial Court failed to appreciate that the - 5 - termination letter dated 10.08.2021 (Ex. P.9) did not assign any valid or specific reasons for termination and was issued in violation of the principles of natural justice. Further, the plaintiff was not issued with a show-cause notice, nor given an opportunity of being heard before termination, thereby rendering the action arbitrary, unfair and opposed to fair labour practices. It is contended that the defendant- company, having remained ex parte, did not rebut the plaintiff's evidence, and therefore the Trial Court ought to have decreed the suit based on the uncontroverted testimony of PW.1. It is contended that no material was placed by the defendants to substantiate any allegation against the plaintiff and thus, the Trial Court has erred in holding that the plaintiff has approached the Court with unclean hands. 7. Learned counsel for the respondent-company, apart from supporting the judgment of the Trial Court on merits, has raised a preliminary objection to the very maintainability of the suit on account of defective service of - 6 - summons at the trial stage. Reliance is placed on the decision of the Apex Court in the case of Neerja Realtors Private Limited Vs. Janglu (Dead) through legal representative1 (Neerja Realtors) to contend that there was a clear breach of the provisions of Order V Rule 17 and Order V Rule 20 CPC, when the plaintiff sought substituted service before the Trial Court. It is submitted that Order V Rule 20 permits substituted service only when the Court is satisfied either that the defendant is keeping out of the way to avoid service or for any other reason the summons cannot be served in the ordinary manner. Such satisfaction must be recorded with reasons. It is submitted that substituted service is an exception to the normal mode of service and cannot be resorted to mechanically and in the present case, the order dated 02.09.2011 passed by the Trial Court directing substituted service is cryptic and does not disclose the satisfaction mandated under Order V Rule 20 CPC. The record does not show that the process server's report under 1 (2018) 2 SCC 649 - 7 - Order V Rule 17 (c) was considered or that other steps for ordinary services were exhausted. It is contended that following the ratio in Neerja Realtors supra, failure to comply with the mandatory procedural safeguards vitiates the proceedings, as the jurisdiction of the Court to proceed ex parte depends upon valid service of reasons. 8. Learned counsel for respondent No.1 supports the dismissal of the suit and raised the following contentions: a. The relief claimed is, in substance, for reinstatement and in service, which amounts to specific enforcement of a contract of personal service and as per Section 14B of the Specific Relief Act, 1963 (‘Specific Relief Act’ for short), contracts in their nature determinable cannot be specifically enforced, and Courts will not compel an employer to retain an employee against its will, save in three recognized exceptions. i. Public servant removed in violation of Article 311 of the Constitution; - 8 - ii. Industrial workmen entitled to reinstatement under Industrial Law, and iii. Statutory body acting in breach of the statutory provisions and the plaintiff does not fall within any of these exceptions. 9. Section 34 bars the grant of bare declaration where the plaintiff is capable of seeking more appropriate relief, namely, damages for wrongful termination, but has omitted to do so, hence, Section 42 of the Specific Relief Act has no application, as there is no subsisting contract or negative covenant capable of enforcement once the employment has been terminated. Reliance is placed upon the judgment of the Apex Court in the case of Nandganj Sihori Sugar Co. Ltd., Rae Bareli and another Vs. Badri Nath Dixit and others2 (Nandganj Sihori) contending that the Apex Court has laid down that in cases of private master- servant relationship, wrongful termination does not entitle the employee to a declaration of continued service, the only 2 (1991) 3 SCC 54 - 9 - remedy is damages. It is contended that the plaintiff's claim, being contrary to the settled law, is liable to be dismissed on this ground. 10. In reply to the objections raised by the respondents on the maintainability of the suit, the learned counsel appearing for the appellant submits that the maintainability of a suit cannot be adjudged from the effect which the decree may ultimately cause, but must be determined on the basis of the ostensible pleadings in the plaint and the reliefs claimed therein. It is contended that the same principle applies under the Specific Relief Act as well. The mere fact that a suit may ultimately fail on account of Section 14 does not preclude the jurisdiction of the Civil Court at the threshold. Section 34 of the Specific Relief Act itself is sufficient to enable entry to a Civil Court for suits seeking variety of declaratory reliefs, subject to proof of merits. Learned counsel places reliance on the judgment of the Apex Court in the case of Ashok Kumar Srivastav Vs. - 10 - National Insurance Company Ltd. and others3 (Ashok Kumar Srivastav) to contend that the scope of maintainability must be assessed from the plaint averments and the reliefs claimed, and ‘not a speculative consideration of the decrees’ eventual consequences’. It is argued that Section 34 of the Specific Relief Act is wide enough to, ‘open the corridors’ of civil Courts to suits seeking declaratory relief, provided the plaint discloses cause of action, even if the ultimate relief may be denied on merits under Section 14 of the Specific Relief Act. The bar under Section 14, it is submitted, is not a jurisdictional bar but a ground for refusal of relief after trial. 11. In reply to the respondent's contention founded on Neerja Realtors, learned counsel for the appellant submits that there was no procedural infirmity in the substituted service effected before the Trial Court. It is argued that the order dated 02.09.2011 was passed by the Trial Court upon an application for substituted service, 3 (1998) 4 SCC 361 - 11 - supported by the Process Server’s report indicating that the defendants were not available at the given address despite repeated visits and attempts at ordinary service. The Court, being satisfied from the material placed on record, permitted service by publication. It is argued that the defendants, having remained ex parte throughout the proceedings without challenging the mode of service at the earlier stage, are now estopped from raising this technical plea in appeal, particularly when the trial proceeded to full conclusion and evidence was recorded. The appellant therefore submits that the objection on substituted service is without merit and cannot be a ground to non suit the plaintiff or to sustain dismissal of the suit. 12. Having heard the learned counsel appearing for the parties, the points that arise for consideration are: “i. Whether the suit of the plaintiff is maintainable in the present circumstances, having regard to the nature of relief sought under the provisions of the Specific Relief Act, 1963? - 12 - ii. Whether the decision of the Apex Court in Nandganj Sihori is applicable to the facts of the present case? iii. Whether the objection as to substitute service under Order V Rule 17 and 20 CPC as per Neerja Realtors vitiates the decree and warrants remand?” 13. Being a first appeal under Section 96 CPC, this Court as a First Appellate Court is vested with powers both on facts and law and is competent to appreciate the entire evidence and substitute its own reason for those of the Trial Court. Accordingly, this Court proceeds to examine the maintainability of the suit and objections as to the service of summons. 14. Substituted service under Order V Rule 20 CPC is permissible only if the Court records satisfaction that the defendants are evading service or summons cannot be served in the ordinary way. The order dated 02.09.2011 directing substituted service is cryptic and records no such satisfaction. Steps under Rule 17 are not shown to have been - 13 - exhausted. While this defect would ordinarily warrant setting aside the decree. In the present case, even assuming valid service, the suit is fundamentally barred in law. A remand would serve no useful purpose. 15. The relief claimed by the plaintiff is for declaration that the termination letter dated 10.08.2021 is null and void and for an injunction restraining the defendants from interfering with his work and discontinuing employment benefits. In substance, the relief amounts to reinstatement in service. That is, specific enforcement of contract of personal service. Section 14B of the Specific Relief Act expressly prohibits specific enforcement of contracts, which are, in their nature, determinable. The settled law is that the contracts of personal service cannot be specifically enforced except for the well-recognized exceptions; i. Where a public servant is removed in violation of Article 311 of the Constitution. ii. Where an individual workman is entitled to reinstatement under the Industrial Law. - 14 - iii. Where a statutory body terminates an employee in violation of mandatory statutory provision. 16. The plaintiff does not fall into any of the above categories, the defendant being a private company incorporated under the Companies Act. Further, Section 34 of the Specific Relief Act bars the grant of a bare declaration that the plaintiff being able to seek further relief, such as damages, omits to do so. Section 42 of the Specific Relief Act is also inapplicable, as there is no subsisting contract or negative covenant capable of being enforced after termination. In Nandganj Sihori, the Apex Court held at paragraph Nos.9 and 10 as under: “9. As stated by this Court in Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain: (SCC p. 71, para 18) “… a contract of personal service cannot ordinarily be specifically enforced and a court normally would not give a declaration that the contract subsists and the employee, even after having been removed from service can be deemed to be in service against the will and consent of the - 15 - employer. This rule, however, is subject to three well recognised exceptions — (i) where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India; (ii) where a worker is sought to be reinstated on being dismissed under the Industrial Law; and (iii) where a statutory body acts in breach or violation of the mandatory provisions of the statute.” (emphasis supplied) 10. A contract of employment cannot ordinarily be enforced by or against an employer. The remedy is to sue for damages. (See Section 14 read with Section 41 of the Specific Relief Act; see Indian Contract and Specific Relief Acts by Pollock and Mulla, 10th edn., page 983). The grant of specific performance is purely discretionary and must be refused when not warranted by the ends of justice. Such relief can be granted only on sound legal principles. In the absence of any statutory requirement, courts do not ordinarily force an employer to recruit or retain in service an employee not required by the employer. There are, of course, certain exceptions to this rule, such as in the case of a public servant dismissed from service in contravention of Article 311 of the Constitution; reinstatement of a dismissed worker under the Industrial Law; a - 16 - statutory body acting in breach of statutory obligations, and the like. (S.R. Tiwari v. District Board, Agra; Executive Committee of U.P. State Warehousing Corporation v. C.K. Tyagi; Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain; see Halsbury's Laws of England, 4th edn., Volume 44, paragraphs 405 to 420).” 17. The Apex Court observed that in a private master- servant relationship, wrongful termination does not entitle the employee to a declaration that the contract subsists the proper remedy is damages. The Apex Court held that this rule, however, is subject to 3 well-recognized exceptions, which are stated supra. This ratio squarely applies here. The plaintiff's prayer is barred in law, as it seeks to compel a private employer to retain an employee against his will. Accordingly, this Court finds that the suit is not maintainable in view of Sections 14, 34 and 42 of the Specific Relief Act and the principle laid down in Nandganj Sihori. - 17 - 18. Objections as to the service of summons: Learned counsel for the respondents raised an objection that the decree of the Trial Court is vitiated for non compliance with Order V Rules 17 and 20 CPC in effecting the service of summons. In Neerja Realtors, the Apex Court reiterated that substituted service under Rule 20 is an exception to the ordinary mode of service and can be ordered only if the Court is satisfied either that the defendant is skipping out of the way to avoid service, or that for some other reason the summons cannot be served in the ordinary manner. Such satisfaction must be recorded with reasons. 19. In the present case, the order dated 02.09.2011 directing substituted service is cryptic and does not disclose the mandatory satisfaction under Rule 20. The record does not show that the process server’s report under Rule 17 was considered or that other steps for ordinary services were exhausted before resorting to substituted service. While this defect in service would normally warrant setting aside an ex parte decree. In the present case, even if proper services - 18 - were assumed, the suit itself is not maintainable in law for the reasons stated above. Therefore, remanding the matter to cure the service defect would serve no useful purpose. Thus, for the foregoing reasons, the suit is not maintainable, as it seeks to specifically enforce a contract of personal service in a case not covered by the recognized exception, it is also barred under Sections 14, 34 and 42 of the Specific Relief Act. The ratio laid down in Nandganj Sihori’s case directly applies to the present facts. There was procedural non-compliance of Order V Rules 17 and 20 CPC, as per Neerja Realtors, but in view of the fundamental bar to the relief claimed, no remand is warranted. 20. The reliance placed by the appellant on the decision in Ashok Kumar Srivastav’s case is misplaced to the present facts, as the said case dealt with the stage of rejection of plaint under Order VII Rule 11 CPC and the principles for determining whether a plaint discloses a cause of action, whereas the present case concerns a substantive statutory bar under Sections 14, 34 and 42 of the Specific - 19 - Relief Act, to the grant of the very relief claimed, maintainability here is not merely about procedural “entry into Court but about legal impossibility of granting a decree for specific performance of a contract or personal service in private employment”, which bar operates irrespective of the pleadings, and is squarely covered by the ratio in the case of Nandganj Sihori. Accordingly, the appeal fails and the points framed for consideration are answered accordingly and this Court pass the following: ORDER i. The regular first appeal is hereby dismissed. ii. The judgment and decree dated 01.04.2023 in O.S. No.4556/2021 on the file of the III Additional City Civil and Sessions Judge, Bengaluru City (CCH-25) stands confirmed. Sd/- ________________________ JUSTICE K.S. HEMALEKHA MBM