42. Injunction to perform negative agreement.-
Notwithstanding anything contained in clause (e) of section 41, where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstances that the court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement,
Provided that the plaintiff has not failed to perform the contract so far as it is binding on him.
Where in a contract, the promisor makes two promises;
1. An affirmative agreement to do a certain act, and
2. A negative agreement not to do a certain act, which can be expressed or implied, and the circumstance are such that the Court is unable to compel specific performance of the affirmative then it shall not prevent it from granting an injunction to perform the negative agreement.
Section 42 provides that where a contract consists of two agreements, one, a positive
agreement to do a certain act and second, a negative agreement not to do a certain act, whether expressly or impliedly, and then the positive part is not capable of specific performance but the negative part can be specifically enforced. Hence, the Court can enforce the negative part of the agreement by means of an injunction, provided that the plaintiff performs his part of the contract.
The conditions essential to the applicability of this Section are:
a) The contract must two agreements, that is,
(i) An affirmative agreement to do a certain act, and
(ii) A negative agreement (express or implied) not to do a certain act;
b) The negative part must be capable of being separated from the rest of the contract; and
c) The applicant must have fully carried out his part of the contract.
Example: – A contracts to sing at B’s theatre for one year and not to sing elsewhere. “to sing in B’s theatre for one year is a contract which depends upon the personal qualifications or volition of the parties and hence cannot be specifically enforced. But the negative part of this contract that A will not sing elsewhere can be specifically enforced.
Hence A can be compelled by injunction not to sing elsewhere.”
It means that if the contract is of such a nature that the same cannot be specifically enforced, a court will not grant an injunction to prevent the breach of such a contract. It has been noted above that a contract of personal service cannot be specifically enforced, cither by the master or the servant.
In N.W. Rly. Administration v. N.W. RLY. Union, 1933 it was held by the Lahore High Court that a person dismissed from service cannot obtain an injunction alleging that the dismissal is wrongful, and the employer should be restrained from dismissing him.
