IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RFA No. 342 of 2001. Decided on: 24.4.2010. ___________________________________________________________ Shri Bhim Sain Thakur … Appellant. Versus Shri Bhagat Ram … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : S/Shri M.S. Thakur and Inderjit Singh Narwal, Advocates. For the Respondent : Nemo. ___________________________________________________________ V.K. Sharma, Judge.(Oral) The appellant (plaintiff) being aggrieved by and dis- satisfied with the impugned judgment dated 1.8.2001, of the learned District Judge, Kinnaur Civil Division, Rampur Bushahr, H.P, whereby, the suit for recovery of Rs. 2,90,000/-, filed by him against the respondent being defendant in the suit, has been dismissed with costs. 2. In brief, facts of the case are that the plaintiff was running a medical store at Rampur Bushahr, under the name and style of M/s Kamal Medical Store, from 1993 to 1996. According to him, he had a valid licence to run the medical store, issued by the competent authority. However, in 1996, due to some domestic problems, the plaintiff was unable to continue with the aforesaid business. At the same time, the defendant who was working as Medical Representative intended to take over the said business 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 along with its assets and liabilities. Against this backdrop an agreement Ex.PW-1A dated 7.11.1996, came to be entered in between the parties. 3. I have heard the learned counsel for the appellant (plaintiff) and perused the record. The respondent has not come forward to contest the appeal, despite actual date notice. 4. I have no hesitation to say at the very outset that agreement Ex.PW-1/A on the face of it is against law and public policy. The reasons to arrive at this inference are deducible from the covenants set up vide paras 2 and 3 of the agreement, which are extracted below for the sake of convenience and ready reference:- “2. That said Sh. Bhim Sain Thakur of the First Part, does not want to run the said Chemist Business for longer time, onwards and now he wants sub-let the same to the Second Part said Shri Bhagat Ram Negi from the day of execution of the present agreement. 3. That the First Part is sub-leting the same to the Second Part on the conditions that the Second Part shall pay a total Sum of Rs. 2,00,000/- (Rupees Two Lacs only) in lieu of or on account of subletting the said Chemist shop, including the furniture therein, stock etc.” (emphasis supplied). 5. In view of the above, the agreement in itself is an agreement for sub-letting of the aforesaid business of medical store being run by the plaintiff in tenanted premises belonging to PW-5, Shri Anil Kumar. It is in evidence and is also apparent from the perusal of agreement Ex.PW-1/A itself that initially PW-5, Shri Anil Kumar, was also to be one of the marginal witnesses to this agreement. However, on his disinclination to be a party to such sub-letting, he later on retracted his 3 steps and went away without witnessing the agreement as a marginal witness. It was in such circumstances that admittedly his name was scored off from the agreement as a marginal witness and in his place another witness, namely, Shri Gopal Singh, was added. 6. It is in evidence that the plaintiff himself was not qualified to run a medical store as he was not a trained pharmacist. It being so, he had been running the store on the strength of duly qualified pharmacists employed by him from time to time, and was granted licence to run the medical store from 26.6.1993 to 31.12.1994. However, since thereafter it was found that he had been running the said store un-authorisedly, the matter appears to have been reported to the concerned authorities, pursuant to which an enquiry was conducted, during which the store was raided in March, 1997, by the local Drug Inspector and it was found that it was being run without any licence w.e.f July, 1995. In such situation, agreement Ex.PW-1/A , besides being illegal and opposed to public policy, as observed here-in-above, was also fraudulent in nature. This aspect of the matter has been dealt with by the learned trial court in the impugned judgment dated 1.8.2001, in quite detail and I need not once again go into all these details to burden this judgment. 7. Admittedly, the defendant had cleared outstanding liability of Rs. 1,04,000/-, as mentioned in para 4 of the agreement. Thus, in a way he had performed his part of the contract to a considerable extent. It is further in evidence that the plaintiff was initially paying monthly rental of Rs. 2600/- in respect of the tenanted premises, in which the medical store was being run by him, to PW-5 Mr. Anil Kumar. However, since agreement Ex.PW-1/A, was an instrument for sub-letting those premises by the plaintiff to the defendant, which are situate in an urban area, it could be a valid ground for ejectment of the defendant there-from. It 4 appears that due to this reason the owner of the premises PW-5 Anil Kumar, made the defendant to pay almost double rent, that is, Rs. 5000/- per month in place of the earlier rent of Rs. 2600/-. 8. Now, the controversy remains only in relation to Rs. 2,00,000/- to be paid by the plaintiff to the defendant in terms of covenants set up vide paras 3 and 8 of the aforesaid agreement Ex.PW-1/A. Here also the inference derived by the learned trial court is that the said sum of Rs. 2,00,000/- was mainly on account of premium for sub-letting the premises by the plaintiff to the defendant. It was mentioned in para 3 of the agreement that this sum was in lieu of sub-letting the medical store, including the furniture therein and stocks etc. However, neither the details of the furniture and stocks etc. has been mentioned therein nor there is any inventory to show as to what was said furniture and stocks etc. 9. In view of what has been said here-in-above, the appeal which is without any merit, fails and is accordingly dismissed, leaving the parties to bear their own costs. The trial court record be sent back. (V.K. Sharma) Judge. April 24, 2010. (lsp)