Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11
PETITIONER:
JAHAR ROY (DEAD THROUGH L.Rs) AND ANR.
Vs.
RESPONDENT:
PREMJI BHIMJI MANSATA AND ANR.
DATE OF JUDGMENT03/11/1977
BENCH:
SHINGAL, P.N.
BENCH:
SHINGAL, P.N.
UNTWALIA, N.L.
CITATION:
1977 AIR 2439 1978 SCR (1) 770
1977 SCC (1) 562
ACT:
Parties to suits-Persons who may be arrayed as Plaintiffs-
Joint Promisee refused to join as a Co-plaintiff-and hence
made a proforma co-defendant with the specific plea that no
relief is claimed against him-Whether suit is non-
maintainable Civil Procedure Code, ( Act V), 1908-Order I
Rule. 1, Contract Act, (Act 9) 1872, S.45 and specific
Relief Act S. 42.
HEADNOTE:
Appellants, Jahar Roy and Smt. Sarjubala Devi were the sub-
lessees of "Rangmahal Theatre" Calcutta as per the agreement
dated 17-3-1962 entered into between the respondents
(Original lessees) and themselves as "Artistes". As per
Clause I of Agreement, they were entitled to the use of
threatre as the Licencees thereof, including the stage,
Theatre Hall, the dressing rooms used in connection
therewith, the existing scenes and dresses for the purpose
of public performance and shows thereat of Bengali dramas,
for a period of one year from 17-2-1962, for one evening
show on each Thursday and each Saturday, and one matinee
show, one evening show on Sunday and other holidays and also
one whole night performance on the occasion of "Shivratri"
and Janmashtami". It was expressly agreed that the
appellants would be entitled to continue with the shows of
the drama that they would be actually staging during the
week before the expiry of one year until the same was closed
by them after a normal run. A sum of Rs. 5275/- was agreed
to be paid to the respondents. Though the one year period
expired on 16-1-1963 the Artistes were exhibiting the
Bengali Drama called "Kathakao" which continued its "normal
run" upto October 10, 1963 as per the express agreement.
Since the appellants staged the drama "Adarsh Hindu Hotel"
on October 12 and 13, 1963 and "Nishkriti" on October 25 and
26, 1963, the respondent sent a letter on October 23, 1963
informing the appellants that they had no right to stage any
other play in terms of the agreement as their licence had
already expired on October 10, 1963 after the "normal run"
of "Kathakao". The respondents, however, permitted the
appellants, as a special case, to stage "Kathakao" during
Puja holidays upto October 27, 1963. Since the appellants
staged "Kathakao" on November 14, 1973 and "Nishkriti" from
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11
November 15 to 17, 1963 and issued advertisements that they
would stage "Svikriti" on December 21 and 22, 1963,
respondent No. 1 Premji Bhimji Mansata, filed a suit for (a)
a declaration’ that the plaintiff & defendant 3 were
entitled to the exclusive use and enjoyment of Rangmahal
Theatre, (b) a permanent injunction restraining the
defendants/appellants from exhibiting any dramatic or other
performance in that Theatre and (c) compensation or damage @
Rs. 600/- per day w.e.f. 1-11-63, in the Calcutta High
Court, on December 20, 1963, making his partner as proforma
defendant No. 3 on his refusal to join as a co-plaintiff.
The defendants/appellants contested the suit on the grounds
that (a) the suit by one partner was not maintainable u/s 42
of the Specific Relief Act, as defendant No. 3 had refrained
to join as plaintiff, (b) they were not mere licensees, (c)
their licence had not expired, (d) they were entitled to
stage any other drama along with, "Kathakao" which did not
therefore come to an end after its "normal run’ on or about
October 10, 1963 and (e) "Kathikao" was being ran lawfully
every Thursday while another drama "Svikriti" was being run
on other days. The trial judge decreed the suit with costs,
granted them declaration and permanent injunction, sought
for, and also allowed the plaintiff compensation and damages
at the rate of Rs. 5275/- p.m. with effect from November 1,
1963. The appeal preferred against the judgment was
dismissed.
Dismissing the appeal by certificate, the Court
HELD : (1) Section 45 of the Contract Act deals with
devolution of joint rights in the case of joint promisees,
but it does not deal with a case where a
771
joint promisee does not want to join as a co-plaintiff and
is arrayed as a proforma defendant with the specific plea
that no relief is claimed against him. [775 A, E]
(2)Where two parties contract with a third party, a suit
by one of the joint promisees, making the other as co-
defendant is maintainable even if the plaintiff does not
prove that the other joint promisee has refused to join him
as a co-plaintiff Order I Rule I of the Code of Civil
Procedure is a general rule which takes care of the
interests of the defendant, in the case of a suit like this
in having all the lessors as parties to the suit so that he
may not be subjected to further litigation. A person cannot
be compelled to be a plaintiff for, as is obvious, he cannot
be compelled to bring an action at law if he does not want
to do so. Nor can a person be prevented from bringing an
action by any rule of law or practice, merely because he is
a joint promisee and the other promisee refuses to join as a
co-plaintiff. The proper and the only course in such cases
is to join him as a proforma defendant. [775 F-H, 776 A]
Biri Singh and Anr. v. Nawal Singh, ILR XXIV All. 226, Pravi
Mohan Bose, v. Kedarnath Ray, ILR XXVII Cal. 409, Menghibai
v. Cooverji Umersey, LXVI I.A., 210 @ 219 and Pramadha Nath
Roy v. Ramani Kanta Roy, I.L.R. XXXV 3 3 1, Approved.
Vyankatesh Oil Mill Co. v. N. V. Valmabomed, A.I.R. 1928
Bom. 191, Vagha Jesing v. Manilal Bhogilal Desai, A.I.R.
1935 Bom. 262, Hari Singh v. Firm Karam Chand Kanshi Rant,
A.I.R. 1927 Lahore 115, Sobhanadri Appa v. Parthasarathi
Appa Rao Savai Aswa Rao Bahadur, A.I.R. 1932 Mad. 583 and
Nathanial Urson v. Mahadeo Uraon, A.I.R. 1957 Patna 511;
Held not applicable.
(3)In the instant case, the two contesting defendants
became tenants at sufferance or trespassers on the
termination of their licence. A co-owner could, in the
case of indivisible property,. well have maintained a suit
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11
for the recovery of the whole from persons holding unlawful
possession thereof. [778 B]
Mahabola Bhatta v. Kunhanna Bhatta etc., I.L.R. XXI Mad.
373, Chandri v. Daji Bhau I.L.R. XXIV Bom. 504; Gopal
Ram Mehuri v. Dhakeshwar Parshaa Narain Singh, I.L.R. XXXIX
Mad. I.L.R. XXXV Cal 807, Syed Ahmad Sahib Shutari v. The
Magnesite Syndicate Ltd., I.L.R. R.XXIX Mad. 501 and
Maganlal Dulabhdas v. Bhadar Purshottam and Ors. A.I.R.
1927 Bom. 192; approved.
(b)The judgment and the decree having in fact enured to
the benefit of defendant No. 3, the rule that "without the
tender of indemnity against costs it would not be
permissible for one joint promisee to make the other co-
defendant", does not in fact enure to the benefit of the
contesting defendant.
[777 D-E]
Gulien v. Knowles [1898] 2 Q.B. 380 and Birka and Johnson v.
Stephens and Carter Ltd. Colding, [1923] 2 K.B. 857,
Burnside v. Harrison Marka Productions Ltd., [1968] 2 All.
E.R. 286 referred to.
(c)As no other drama besides "Kathakaon’ was being staged
in the week preceding the expiry of the period of the
licence, the benefit of the proviso, on a reading of para I
of the agreement, could enure only for "Kathakao" and not
for "Sviratri" or any other drama. As the defendants
staged, "Adarsh Hindu Hotel", "Nishkriti" and "Sviratri"
along with "Kathakao" after the expiry of the period of the
licence, there is nothing wrong with the concurrent finding
that the "normal run" of "Kathakao" came to an end when the
defendants started staging the other dramas three times a
week and relegated "Kathakao" to one show in the week. [778
H, 779 A-B]
(d)The plaintiff and defendant No. 3 being joint promisee
are equally entitled to the said compensation @ Rs. 5275/-
per month. [779H, 780A]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2055 of
1970.
From the Judgment and Decree dated 21-5-1970 of the Calcutta
High Court in Appeal No. 190 of 1964.
772
S. C. Majuindar and Mrs. Laxmi Arvind for the Appellants.
Sankar Ghose and D. P. Mukherjee for Respondent No. 1.
A. K. Mitter and Mrs. Laxmi Arvind for Respondent No. 2.
The Judgment of the Court was delivered by
SHINGHAL J., The first two defendants, who lost in the trial
court as well as on appeal, came to this Court on a
certificate granted by the high Court under Article 133(1)
of the Constitution as it stood before the Constitution
(Thirtieth Amendment) Act, 1972. Jahar Roy, defendant No.
1, died a day after the commencement of the hearing of this
appeal. On that date, when we were informed about his death
by Mr. Mazumdar who was his Advocate-on-record also, we gave
him the option of continuing the arguments so that they may
be concluded without any break and file a petition for
substitution of the legal representatives of Jahar Roy
before the delivery of the Judgment, or to resume the
hearing of the appeal after the substitution. Mr. Mazumdar
was good enough to choose the former course as the
substitution of the legal representatives of Jahar Roy was
to be a formal affair and nothing special or new was likely
to be argued in the appeal on their behalf. We accordingly
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11
heard the arguments at length. Later, alongwith an
application for substitution, a prayer was made on behalf of
the legal representatives of Jahar Roy for the rehearing of
the appeal. In all fairness, and to avoid any future
objection, we acceded to the request and posted the appeal
for further hearing.
We have heard Mr. Mazumdar on behalf of all the legal
representatives also. He has however not argued any new
point beyond inviting our attention to a suit filed by the
plaintiff on February 25, 1970, during the pendency of the
appeal in the High Court, claiming a declaration that the
partnership between him and defendant Jitendra Nath Bose
stood dissolved on and from February 24, 1970, and the order
of appointment of Receivers in that suit. We shall refer to
Mr. Mazumdar’s argument in that behalf in due course.
Plaintiff Premji Bhimji Mansata and Jitendra Nath Bose
defendant No. 3 carry on business in partnership in the name
and style of "Rungmabal Threatre", in Calcutta of which they
are joint lessees. They pay a monthly rent of Rs. 2,500/-
including the rent of fixtures and furniture. They also pay
Municipal rates and taxes, electric charges and the cost of
maintenance of machinery, fittings and furniture. Both of
them have been described in the plaint as "the Management"
of the Runginahal Theatre. Jahar Roy, defendant No. 1, and
Smt. Sarjubala Devi, defendant No. 2, hereinafter referred
to as the defendants, entered into an agreement with the
plaintiff and defendant No. 3, on January 17, 1962. The
agreement, in which the defendants were described as "the
Artistes" provided, inter alia, as follows :-
"1. The management agree to allow the Artistes
the use of "Rungmahal Theatre" as the
Licensees thereof including the stage,
Threatre-hall, the Dressing rooms used in con-
nection therewith, the existing scenes and
dresses for
773
the purpose of public performances and shows
there at of Bengali Dramas for a period of one
year from the date hereof on the days and in
the manner following
(a) One Evening show on each Thursday.
(b) One Evening show on each Saturday.
(c) One Matinee and one evening shows on
each Sunday and other public holidays and also
one whole night performance on the occasion of
Sivratri and Janmastami each. All the extra
expenses including the Corporation charges and
extra remuneration payable to staff for such
whole night performances will be borne and
paid by the Artistes. They would also obtain
necessary permission from the authorities con-
cerned :
Provided always and it is hereby expressly
agreed that the Artistes would be entitled to
continue with the shows of the drama that they
would be actually staging during the week
before the expiry of one year until the same
is closed by the Artistes after a normal run."
It was further agreed that defendants would be entitled to
all box office ,collections, but they would contribute a sum
of Rs. 5,275/- every month towards the expenses mentioned in
paragraph 5 of the agreement and would pay that sum to the
Management within the 7th day of each month succeeding the
month for which it became due.
The period of one year for which "the Artistes" were allowed
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11
the, use of the Rungmabal Theatre and its equipment, as its
licencees, expired on January 16, 1963, while "the Artistes"
were, according to the plaintiff, exhibiting the Bengali
drama called "Katha Kao", which continued its "normal run"
upto October 10, 1963. On that date (according to the
plaintiff) the agreement referred to above, came to an end,
but the defendants staged the drama "Adarsh Hindu Hotel" on
October 12 and 13, 1963 and "Nishkriti" on October 25 and
26, 1963. The plaintiff therefore sent a letter to the
defendants on October 23, 1963, informing them that they had
no right to stage any other play in terms of the agreement
as their licence had already expired on October 10, 1963,
after the "normal run" of "Katha Kao". The plaintiff
however permitted the defendants to stage "Katha Kao" during
the Puja Holidays, upto October 27, 1963, without prejudice
to the rights and contentions of the lessees. Even so the
defendants issued advertisements in the newspapers on
October 30, 1963, announcing the exhibition of "Katha Kao"
on November 14, 1963 and of "Nishkriti" from November 15 to
17, 1963, and staged it. They also announced in a Bengali
newspaper on December 18, 1963, that they would stage
"Swikriti" on December 21, and 22, 1963. The plaintiff
therefore filed the suit in the Calcutta High Court on
December 20, 1963, for a declaration, inter alia, that the
defendants, their agents, servants or assigns had no right,
title or interest to, hold any theatrical performances or
any performance in the Rungmahal Theatre in any manner
whatsoever and that the plaintiff and defendant No. 3 were
entitled to its
774
exclusive use and enjoyment. He also prayed for a permanent
injunction restraining the defendants from exhibiting any
dramatic or other performance in that theatre or from using
it. He claimed compensation or damages at the rate of Rs.
600/- per day with effect from November 1, 1963. It was
specifically stated in paragraph 15 of the plaint as
follows,-
"Although the plaintiff called upon the
defendant No. 3 to join the plaintiff in
instituting this suit, the defendant No. 3 is
not willing to join the plaintiff. In the
circumstances, the defendant No. 3 has been
made a defendant in this suit. The plaintiff
states that no relief is claimed against the
defendant No. 3."
The defendants filed a joint written statement in which they
denied that they were mere licensees and the licence had
expired. They claimed that they were entitled to stage any
other drama along with "Katha Kao" which, according to them,
did not come to an end after its "normal run" on or about
October 10, 1963. They pleaded that "Katha Kao" was being
run lawfully every Thursday, while another new drama
"Swikriti" was being run on other days. They claimed fur-
ther that they were entitled to stage any other drama along
with "Katha Kao" and denied that they had committed any
breach of the agreement. As regards Jitendra Nath Bose who
was arrayed as defendant No. 3 in the suit, the defendants
contended that he had not only refrained from joining the,
plaintiff in the suit but was opposing it and was supporting
the defendants so that the suit was not maintainable by one
partner and it was also barred under section 42 of the,
Specific Relief Act.
A number of issues were framed by the trial judge, including
a specific issue as to the maintainability of the suit
because of the non-joinder of defendant No. 3 as plaintiff,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11
and also on the question whether the two defendants were
entitled to stage any other play after "Katha Kao" one week
before the expiry of period of one year from the date of the
agreement.
Defendant Jahar Roy examined himself as the sole witness on
behalf of the defendants. In his judgment dated July 14/15,
1964, the trial judge found all the issues in favour of the
plaintiff and passed a decree granting a declaration that
the defendants, their agents, servants or assigns had no
right, title or interest to hold any theatrical or other
performance in the Rungmahal Theatre in any manner
whatsoever or to use it in any manner whatsoever and that
the plaintiff and defendant Jitendra Nath Bose were entitled
to its exclusive use and enjoyment. The trial judge granted
a permanent injunction restraining the defendants from
exhibiting any dramatic performances or any performance in
the theatre, or from using it. He allowed the plaintiff
compensation and damages at the rate of Rs. 5,275/- per
month also with effect from November 1, 1963, along with the
costs of the suit.
The defendants filed an appeal, but it was dismissed with
costs by the Calcutta High Court on May 21, 1970, except for
the correction of a "slight mistake" in the judgment and the
decree.
775
As has been stated, the defendants have filed the present
appeal on a certificate granted by the High Court. They
have however been staging their dramas in the theatre in
question for a period of some 14 years since the institution
of the suit on account of the stay orders obtained by them
from time to time.
It has been argued by Mr. Mazumdar on behalf of the
appellants that as the licence was given by the plaintiff
and Jitendra Nath Bose as joint promises of the property,
the suit was not maintainable under section 45 of the
Contract Act, hereinafter referred to as the Act, by one of
the joint promisees without joining Jitendra Nath Bose as a
co-plaintiff.
Section 45 and the illustration thereunder read as follows,-
"45. When a person has made a promise to two
or more persons jointly, then, unless a
contrary intention appears from the contract,
the right to claim performance rests, as
between him and them, with them during their
joint lives, and, after the death of any one
of them, with the representative of such
deceased person jointly with the survivor or
survivors, and, after the death of the last
survivor, with the representative of all
jointly.
Illustration
A, in consideration of 5,000 rupees lent to
him by B and C, promises B and C jointly to
repay them that sum with interest on a day
specified. B dies. The right to claim per-
formance rests with ’B’s representative
jointly with C during C’s life, and, after the
death of C, with the representatives of B and
C jointly."
The section thus deals with devolution of joint rights in
the case of joint promisees, but it does not deal with a
case where, a joint promise, does not want to joint as a co-
plaintiff and is arrayed as a proforma defendant with the
specific plea that no relief is claimed against him. The
judgment and the decree in this case have in fact enured to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11
his benefit also.
It is Order I rule I of the Code of Civil Procedure, which
deals with the procedure in civil actions of this nature and
it provides as follows,-
" 1. All persons may be joined in one suit as
plaintiffs in whom any right to relief in
respect of or arising out of the same act or
transaction or series of acts or transactions
is alleged to exist, whether jointly,
severally or in the alternative, where, if
such persons brought separate suits, any
Common question of law or fact would arise."
This is a general rule which takes care, of the interests of
the defendant who is interested, in the case of a suit like
this, in having all the lessors as parties to the suit so
that he may not be subjected to further litigation. But the
rule is not without an exception. The reason is that a
person cannot be compelled to be a plaintiff for, as is
obvious, he
776
cannot be compelled to bring an action at law if he does not
want to do so. At the same time, it is equally true that a
person cannot be prevented from bringing an action, by any
rule of law or practice, merely because he is a joint
promisee and the other promises refuses to join as a co-
plaintiff. The proper and the only course in such cases is
to join him as a proforma-defendant. As would appear from
Biri Singh and another v. Nawal Singh(1) and Pyari Mohun
Bose v. Kedarnath Roy(2), it has consistently been held by
courts in this country that where two parties contract with
a third party, a suit by one of the joint promisees, making
the other as codefendant. is maintainable even if the
plaintiff does not prove that the other joint promisee has
refused to join him as a co-plaintiff. Reference in this
connection may also be made to Monghibai ’v. Cooverji
Umersay(3), where it has been observed as follows,-
"It has long been recognized that one or more
of several persons jointly interested can
bring an action in respect of joint property,
and if their right to sue is challenged can
amend by joining their co-contractors as
plaintiffs, if they will consent, or as co-
defendants if they will not."
In Pramada Nath Roy v. Bameni Kanta Roy(4), it was held by
the Privy Council that, in the event of rent being unpaid,
the owners of the zanmindari interest were entitled, by a
suit, to bring a "putni" to sale, with the consequences
prescribed by the Bengal Tenancy Act. Their Lordships
specifically observed in that case as follows,--
"And it is a general rule a rule not derived
from the Bengal Tenancy Act, but from quite
another branch of law, namely, the general
Principles of legal procedure-that a sharer,
whose co-sharers refuse to join him as
plaintiffs, Can bring them into the suit as
defendants, and sue for the whole rent of the
tenure."
We see no reason for taking a different view and find no
merit in the argument of Mr. Mazumdar to the contrary. He
no doubt invited our attention to Vyankatesh Oil Mill Co. v.
N. V. Velmahomed(5), vagha Jesing v. Manilal Bhogilal
Desai(6), Hari Singh v. Firm Karam Chand Kanshi Ram(7),
Sobhanadri Appa V. v. Parthasarathi Appa Rao Savai Aswa Rao
Bahadur(8) and Nathaniel Uraon v. Mahadeo Uraon(9), but they
were cases in which one or the other joint promisee was left
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11
out altogether from the frame of the suit, or the case was
by way of an action in tort. Learned counsel was in fact
unable to refer to any case where it has been held that one
joint promisee cannot maintain a suit by making the co-
promisee a proforma-defendant.
(1) I.L. R. XXIV All. 226 which was decided in 1898.
(2) I.L.R. XXVII Cal. 409 which was decided in 1899.
(3) LXVI Indian Appeals 210 at p. 219.
(4) I.L.R. XXXV Cal. P. C. 331.
(5) A.I.R. 1928 Bom. 191. (6) A.I.R. 1935 Bom.262. (7)
A.I.R. 1927 Lahore 115. (8)-A.I.R. 1932 Mad. 583.
(9) A.I.R. 1957 Patna 511.
777
Mr. Mazumdar tried to place reliance on the following
observations in Lindley on the Law of Partnership,
thirteenth edition, page 303,-
"With respect to other simple contracts,
whether written or verbal, where a contract is
entered into with several persons jointly,
they should all join in an action upon it."
This passage occurs under the rubric "Actions by and against
partners where no change in the firm has occurred," and is
subject to the general observations stated by Lindley under
the earlier rubric "Actions by and against partners." While
making those general observations, it has been stated as
follows at serial No. 5 (at pages 290-291),-
"5. Where a plaintiff claims any relief to
which any other person is entitled jointly
with him, every such other person must, except
with the leave of the court, be made a co-
plaintiff or (if he refuses) a defendant."
It cannot therefore be urged with any justification that a
contrary view has been stated by Lindley.
Before leaving this aspect of the matter we may as well
refer to an ancillary argument of Mr. Mazumdar that even if
it were held to be permissible for one joint promisee to
make the other a co-defendant, that would not be permissible
without the tender of indemnity against costs, which was not
done in this case. That rule finds a mention in Halsbury’s
Laws of England, third edition, at page 61, and appears to
be based on Gullen v. Knowles and Birks(1) and Johnson v.
Stephens and Carter Limited and Golding(2). But the rule
does not in fact enure to the benefit of the contesting
defendant. When the matter came up for specific
consideration in Burnside v. Harrison Marks Productions,
Ltd.(3) the position obtaining in England was set out by
Lord Denning, M.R. in the following words,-
"I think that the judge’s decision proceeds on
a misunderstanding of Johnson v. Stephens and
Carter, Ltd.(4) That case shows that, when a
promise made is to two persons jointly then
one of them cannot ordinarily require the
other to join as plaintiff, and cannot add him
as a defendant, unless he offers him an
indemnity against costs. This, however is a
rule made for the protection of the joint
contractor whom it is sought to add as
plaintiff or defendant. It is not made for
the benefit of the other contracting party who
is the defendant to the action. He cannot
insist on the indemnity or the offer of it;
for it is no concern of his. All that he can
require is that both the persons, with whom he
made his contract, are before the court. So
long as they are both there, even if one is a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11
defendant, he cannot complain."
It would thus appear that there is no force in the argument
of Mr. Mazumdar to the contrary.
(1) [1898] 2 Q. B. 38O
(3) (1968) 2 All E.R. 286.
(2) [1923] 2 K. B. 857.
(4) [1923] All E.R. 701.
778
It may be mentioned here that Mr. Ghosh tried to raise the
argument that section 45 of the Act deals with a case
relating to "the right to claim performance" of a contract
and not a case like the present. The argument could not,
however, be examined as it was not based on any such plea in
the written statement and was not urged for consideration in
the High Court.
Moreover, as has rightly been held in the impugned judgment
of the Calcutta High Court, the two contesting defendants in
this case became tenants on sufferance or trespassers on the
termination of their licence. A co-owner could in the case
of indivisible property, well have maintained a suit for the
recovery of the whole from persons holding unlawful
possession thereof. Reference in this connection may be
made to the decisions in Mahabala Bhatta v. Kunbanna Bhatta
etc.(1) Chandri v. Daji Bhau (2 ) , Gopal Ram Mohuri v.
Dhakeshwar Pershad Narain Singh(3), Syed Ahmad Sahib Shutari
v. The Magnesite Syndicate Ltd(4), and Maganlal Bulabhadas
v. Bhadar Purshiottam and others(5).
The remaining argument of Mr. Mazumdar relates to the ques-
tion whether the defendants were entitled to stage any play
other than "Katha Kao" which was actually staged during the
week before the expiry of one year from January 17, 1962 as
that was the date of the agreement. The trial judge found
on evidence of defendant Jahar Roy that that play was
actually staged one week before the expiry of the period of
one year stipulated in the agreement. Jahar Roy has also
admitted that the same play is being run only once a week
thereafter, and that other plays are. being staged on other
dates. On this basis Mr. Mazumdar has argued that as "Katha
Kao" has not closed down, it is having its "normal run" and
the defendants are entitled to the benefit of the proviso to
paragraph 1 of the agreement between the parties which has
been extracted ’in an earlier part of the judgment.
A reading of paragraph 1 shows that the defendants, as the
licensees, were allowed to use the theatre and the equipment
for a period of one year, for one evening show on each
Thursday and each Saturday, and one matinee show, one
evening show on each Sunday and other holidays, and also one
whole night performance on the occasion of Sivaiatri and
Janmashtmi. The controversy in this case does not relate to
the performances on public holidays other than Sundays or on
the occasion of Sivaratri and Janmashtmi. So for all
practical purposes the defendants were entitled to four
shows in a week, including two shows on Sundays. It is not
in dispute before us that they were only staging "Katha Kao"
during the week before the expiry of the period of one year
from the date of the agreement, so that that was its "normal
run". It follows therefore that as no other drama was being
staged in the week preceding the expiry of the period
(1) I.L.R. XXI Mad 373.
(3) I.L.R. XXXV Cal. 807.
(5) A.I.R. 1927 Bom. 192.
(2) I.L.R. XXIV Bom. 504.
(4) I.L.R. XXIX Mad, 501.
779
of the licence, the benefit of the proviso could ensure only
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11
for "Katha Kao" and not for "Swikriti" or any other drama.
As the defendants staged "Adarsh Hindu Hotel", "Nishkriti"
and "Swikriti" along with "Katlia Kao" after the expiry of
period of the licence, there is nothing wrong with the
concurrent finding that the "normal run" of "Katha Kao" came
to an end when the defendants started staging the other
dramas three times a week and relegated "Katha Kao" to one
show in the week. This is the plain and simple meaning of
the paragraph bearing on this aspect of the controversy, and
we arc unable to agree with Mr. Mazumdar that it was
permissible for the defendants to continue with the licence
merely because they continued to play "Katha Kao" once a
week and the other plays on other days, at their option.
Such a course could not be said to be; the "normal Tun" of
"Katha Kao" and was clearly abnormal. Learned counsel has
not been able to point out how the finding of fact of the
High Court that the "normal run" of "Katha Kao" came to an,
end when the defendants started performing another drama
along with’ it after the %expiry of one year’s period of the
licence could be said to have been vitiated by any error of
law or procedure.
Mr. Mazumdar tried to argue that the agreement dated
January 17, 1962 could not be said to have been validly
terminated by the plaintiff as "the Management" did not
refund the sum of Rs. 10,000/or any part thereof in
accordance with the requirement of paragraph 16 of the
agreement. The argument was however found to be untenable
as no such plea was taken in the written statement and it
was not the subject matter of any issue during the course of
the trial.
This leaves for consideration the argument which Mr.
Mazumdar has advanced on behalf of the legal representatives
of Jahar Roy (defendant No. 1 ). As has been stated, he has
invited our attention to the suit which is said to have been
filed by the plaintiff as far back as February 25, 1970 for
a declaration that the partnership between him and defendant
Jitendra Nath Bose stood dissolved on and from February 24,
1970 and for some other reliefs. Our attention has also
been invited to the trial court’s order for the appointment
of joint Receivers in that case. It has been argued on that
basis that as the joint Receivers took possession on April
16, 1970, the plaintiff was not entitled to claim any relief
in the’ suit which is the subject matter of the controversy
before us, that the Receiver were necessary parties and that
the plaintiff no longer had any right to claim any of the
reliefs in this suit because of the total failure of his
cause of action. It would be sufficient for us to say that
none of these arguments was advanced in the appeal before
the High Court and we do not find it possible to allow them
to be raised in this second appeal for the first time. Even
otherwise, the arguments have no bearing on the appeal
before us.
There is thus no merit in this appeal and it deserves to be
dismissed. It may however be mentioned that the High Court,
perhaps by inadvertence, confined the decree for
compensation at the rate of
13-951 SCI/77
780
Rs. 5,275/- per month to the plaintiff who was, however, not
the sole licensor. The plaintiff and defendant No. 3 being
joint promisees are equally entitled to the said
compensation. Except for this modification in the impugned
judgment and the decree of the High Court, the appeal fails
and is dismissed. There will however be no order as to the
costs of this Court in the circumstances of the case.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11
S.R. Appeal dismissed, modifying the decree-
781