Case: Jahar Roy (Dead Through L.Rs) And Anr Vs. Premji Bhimji Mansata And Anr

Court.17. 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. Kunhanna Bhatta [ILR 21 Mad 373 : 8 MLJ 598], Chandri v. Daji Bhau [ILR 24 Bom 504; 2 Bom Lr 491], Gopal Ram Mohuri v. Dhakeshwar Pershad Narain Singh [ILR 35 Cal 807 : 7 CLJ 483], Syed Ahmad Sahib Shutari v. The Magnesite Syndicate Ltd. [ILR 39 Mad 501 : 29 IC 60 : 28 MLJ 598] and Maganlal Dulabhdas v. Bhadar Purshottam [AIR 1927 Bom 192 : 29 Bom LR 222 : 101 IC 35].18. The remaining argument of Mr. Mazumdar relates to the question 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 the 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 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 judgement.19. 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 Sivaratri and Janmasthmi. The controversy in this case does not relate to the performances on public holidays other than Sundays or on the occasion of Sivaratri and Janmasthmi. So for all practical purposes the defendants were entitled to four shows in a week, including two shoes 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 it "normal run". It follows therefore that as no other drama was being staged in the week preceding the expiry of the period of the licence, the benefit of the proviso could enure only for "Katha Kao" and not for "Swikriti" or any other drama. As the defendants staged "Adarsh Hindu Hotel", "Nishkriti" and "Swikriti" along with "Katha 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 are 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 another days, at their option. Such a course could not be said to be the "normal run" 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 years period of the licence could be said to have been vitiated by any error of law or procedure.20. Mr. Mazumdar tried to a 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.21. This leaves for consideration the argument which Mr. Mazumdar has advanced on behalf of the legal representatives of Jahar Roy (defendant 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. Out attention has also been invited to the trial Courts 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 Receivers 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]19. 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 Sivaratri and Janmasthmi. The controversy in this case does not relate to the performances on public holidays other than Sundays or on the occasion of Sivaratri and Janmasthmi. So for all practical purposes the defendants were entitled to four shows in a week, including two shoes 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 it "normal run". It follows therefore that as no other drama was being staged in the week preceding the expiry of the period of the licence, the benefit of the proviso could enure only for "Katha Kao" and not for "Swikriti" or any other drama. As the defendants staged "Adarsh Hindu Hotel", "Nishkriti" and "Swikriti" along with "Katha 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 are 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 another days, at their option. Such a course could not be said to be the "normal run" 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 years period of the licence could be said to have been vitiated by any error of law orsee 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 [AIR 1928 Bom 191   : 109 IC 99 : 30 BLJR 117], Vagha Jesing v. Manilal Bhogilal Desai [AIR 1935 Bom 262   : 156 IC 898 : 37 BLJR 249], Hari Singh v. Firm KaramRam [AIR 1927 Lah 115 : 100 IC 721 : 8 Lah 1], Sobhanadri Appa Rao Bahadur v. Parthasarathi Appa Rao Savai Aswa Rao Bahadur [AIR 1932 Mad : 137 IC 274 : 62 MLJ 154]   and Nathaniel Uraon v. Mahadeo Uraon [AIR 1957 Pat 511   : ILR 36 Pat 273], but they were cases in which one or the other joint promisee was left out altogether from the frame of the suit, or the case was by way of an action in tort. Learned was in fact unable to refer to any case where it has been held that one joint promisee cannot maintain a suit by making theIt cannot therefore be urged with any justification that a contrary view has been stated bythe rule does not in fact enure to the benefit of the contesting defendant. When the matter came up for specific consideration in Burnsidev. Harrison Marks Productions Ltd. [(1968) 2 All ER286] the position obtaining in England was set out by Lord Denning, M.R. in the following words :I think that the Judges decision proceeds on a misunderstanding of Johnsonv. Stephens and Carter Ltd. [1923 All ER701]. That case shows that, when a promise is made 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 defendant, he cannot complain.It would thus appear that there is no force in the argument of Mr. Mazumdar to theargument 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 Highargument was however found to be untenable as no such plea was taken in the written statement and it was not theof any issue during the course of thewould 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.