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

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 1, 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 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 re-hearing of the appeal. In all fairness, and to avoid any future objection, we acceded to the request and posted the appeal for further hearing.2. 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. Mazumdars argument in that behalf in due course.3. Plaintiff Premji Bhimji Mansata and Jitendra Nath Bose defendant 3 carry on business in partnership in the name and style of "Rungmahal Theatre", in Calcutta, of which they are joint lessees. They pay a monthly rent of Rs. 2500 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 Rungmahal Theatre. Jahar Roy, defendant 1 and Smt. Sarajubala Devi, defendant 2, hereinafter referred to as the defendants entered into an agreement with the plaintiff and defendant 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, theatre-hall, the dressing rooms used in connection therewith, the existing scenes and dresses for the purpose of public performances and shows thereat of Bengali dramas for a period of one year from the date thereof on the days and in the manner followingOne 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 Sivaratri and Janmasthmi 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 concerned :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. 5275 every month towards the expenses mentioned in paragraph 5 of the agreement and would pay that sum to the Management within the seventh day of each month succeeding the month for which it became due.The period of one year for which "the Artistes" were allowed the use of the Rungmahal Theatre and is equipment, as its licensees, 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, up to 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 state "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 3 were entitled to its 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 3 to join the plaintiff in instituting this suit, the defendant 3 is not willing to join the plaintiff. In the circumstances, the defendant 3 has been made a defendant in this suit. The plaintiff states that no relief is claimed the defendant 3.5. 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 further 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 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.6. 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 3 as plaintiff, 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.7. 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 and dramatic performances or any performance in the theatre, or from using it. He allowed the plaintiff compensation and damages at the rate of Rs. 5275 per month also with effect from November 1, 1963, along with the costs of the suit.8. 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.9. 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.

Reasoning:
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.