# JAHAR ROY (DEAD THROUGH L.Rs) AND ANR v. PREMJI BHIMJI MANSATA AND ANR

- **Citation:** [1978] 1 S.C.R. 770
- **Court:** Supreme Court of India
- **Decided:** 1977-11-03
- **Case number:** Civil Appeal No. 2055 of 1970
- **Bench:** N. L. Untwalia, P. N. Sh!Nghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jahar-roy-dead-through-l-rs-and-anr-v-premji-bhimji-mansata-and-anr-7318
- **Pages:** 11

## Headnote

Parties to suits-Persons who 1nay be arrayed as Plaintiffs-Joint Promisee
refused to join as a Co-plaintiff-and hence 1nade a proforma co-defendant with
the specific plea that no relief is clainied against hi1n-Whether suit is
11onn1ain1ainable, Civil Procedure Code, ( Act V), 1908- Order I Rule 1. Contract
Act, (Act 9) 1872, S. 45 and Specific Relief Act S. 42.
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". A5
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 existil!g scenes and dresses for the purpose of public
petformance 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". lt
was expressly agreed that the appellants would be entitled to continue with the
sho\VS 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 norn1al
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 continμed 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" fron1
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 Thenlre. (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 th3t
(a) the suit by one partner was not maintainable u/s 42 of the Specific Relief
Act, as defend<:.11t 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 dran1a along with "Kathakao" ¥.'hich did not therefore co1ne to an end after
its "normal run" on or about October 10, 1963 and (e) "Kathakao" \\'as being
run lawfully every Thursday while another drama "Svikriti" was being run on
other days. The trial judge decreed the sriit with costs, granted the 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 dismiss.ed.
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
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JAHAR ROY v. PREMJI BHIMJI (Shinghal, J.)
771
joint promisee does not want io join as

## Text

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JAHAR ROY (DEAD THROUGH L.Rs) AND ANR.
v.
PREMJI BHIMJI MANSATA AND ANR.
November 3, 1977
[N. L. UNTWALIA AND P. N. SH!NGHAL, JJ.]
Parties to suits-Persons who 1nay be arrayed as Plaintiffs-Joint Promisee
refused to join as a Co-plaintiff-and hence 1nade a proforma co-defendant with
the specific plea that no relief is clainied against hi1n-Whether suit is
11onn1ain1ainable, Civil Procedure Code, ( Act V), 1908- Order I Rule 1. Contract
Act, (Act 9) 1872, S. 45 and Specific Relief Act S. 42.
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". A5
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 existil!g scenes and dresses for the purpose of public
petformance 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". lt
was expressly agreed that the appellants would be entitled to continue with the
sho\VS 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 norn1al
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 continμed 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" fron1
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 Thenlre. (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 th3t
(a) the suit by one partner was not maintainable u/s 42 of the Specific Relief
Act, as defend<:.11t 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 dran1a along with "Kathakao" ¥.'hich did not therefore co1ne to an end after
its "normal run" on or about October 10, 1963 and (e) "Kathakao" \\'as being
run lawfully every Thursday while another drama "Svikriti" was being run on
other days. The trial judge decreed the sriit with costs, granted the 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 dismiss.ed.
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
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JAHAR ROY v. PREMJI BHIMJI (Shinghal, J.)
771
joint promisee does not want io join as a co-plaintiff and is arrayed as a pro/orn1a
defendant with the specific plea that no relief is claimed against him.
[775 A, EJ
(2) \Vhere 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 coplaintiff Order I Rule 1 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 ot
Jaw 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 Al
Biri 5ingh and Anr. v. /llawal Singh, ILR XXJ,V All. 226, Pra~'i 1Wohan Bose,
v. Kedarnath Ray, ILR XXVII C&l. 409, Menghibai Y. Cooverjl Un1ersey, LXVI
I.A., 210 @ 219 and Pra1nadha Nath Roy v. Ramani Kanta Roy, 1.L.R. XXXV
331, Approved.
Vyankutesh Oil Mill Co. v. 1'./. V. Val111aborned,
A.LR.
1928
Born.
191,
l''agha Jesing v. Manila! B!zogilal Desai, A.I.R. 1935 Born. 262, Hari Singh v.
Firm Kara111 Chand Ka11shi Rani, A.I.R. 1927 Lahore 115, Sobhanadri Appa v.
Parthasarathi Appa Rao Sarai Aswa Rao Bahadur, A.I.R. 1932 Mad. 583 and
l'•lathanial Urson v. Mahadeo Uraon, A.l.R. 1957 Patna 511; Held not applicable.
(3) ln the instant case, the two contesting defendants became tenants
at
sufferance or trespassers on the termination of their licence.
A. co-o\vner could,
in the case of indivi~ible property, \Vell have n1aintained a suit for the recovery
of the \Vhole from persons holding unlawful possession thereof. [778 B}
Mahabala Bhatta v. K1111ha11na Bhatia etc., I.L.R. XXI Mad. 373, Chandri
v. Daji Bhau 1.L.R. XXIV Born. 504; Copa/
Rain
A1ehuri v.
Dhakeslnvar
Parsha..-i 1Varain Singh, I.L.R. XXXIX Mad.
LL.R. XXXV
Cal 807, Syed
Ahniad Sahib Sh11tari v. The Magnesite Syndicate Ltd., J.L.R. XXXIX Mad.
501 and A1aganlal Dulabhda.1· v. Bliadar Purshottam and Ors.
A.LR.
1927
Born. 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 co::;ts
it would not be permissible for one joint pro1nisee to make the other co-defendant'', does not in fact enure to the benefit of the contesting defendant.
[777 D-EJ
G11fie11 v. Knowles [1898] 2 Q.R. 380 and Birka and Joh11so11 v. Stephens
and Ca1itr Ltd. Colding, [1923] 2 K.B. 857, B11r11.1ide v. Harrison Marka Prodllctions Ltd., [19681 2 All. E.R. 286 referred to.
( c) As no other drama besides "Kathakao" \\'as 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" anct' not
for "Svikriti" or any other drama.
As the defendants staoed "Adarsh Hindu
Hotel",. "Nishkriti'' .and "Svikriti". along_ with ''Kath<:i-kacf'
0
aft~r the expiry of
the penod of the licence, there 1s 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 ¥.'eek and
releaated ''Kathaka·o·,
to one show in lhe week. [778 H, 779 A-BJ
.~
(d) The pl:tintiff and defendant No. 3 being Joint promisee are equal!v entitled
to the said compensation @ Rs. 5275/- per month. [779H, 780A] ,
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.
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SUPREME COURT REPORTS
[J 978] 1 S.C.R.
S. C. Majwndar and Mrs. Laxmi Arvind for the Appellants.
Smikar 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
SHJNGHAL 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 (I) of ,the Constitution as it stood
before the Constitution (Thirtieth Amendment) Act, 1972. Jabar Roy,
defendant No. I, 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
optiQll 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 ol 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.
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
"Rungmahal Theatre", 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 majntenance of machinery, fittings and furniture. Both
of them have been described in the plaint as "the Management" of the
Rungmahal Theatre. Jahar Roy, defendant No. I, and Smt. Sarjubala
Devi, defendant No. 2, hereinafter referred to as the defendants. entered
into an agreement with the plaintiff an_d defendant No. 3, on· January
17, 1962. The agreement, in which the defendants were described as
"the Artistes" provided, inter alia, as follows :-
"I. 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
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JAHAR ROY v. PREMJI BHIMJI (Shinghal, J.)
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 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. 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 the
use of the Rungmahal Theatre and its equipment. as its Jicencees, 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 "Adarsti 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 th?t they had no right to stage any other play
in terms of the agreement as their licence had already expired on October l 0, 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 riglrts
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
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SUPREME COURT REPORTS
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exclusive use and enjoyment. He also prayed for a permanent injunc·
tion 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 !ollows,-
"Although the plaintiff called upon the defendant No. 3
to join the plaintiff in instituting this
suit, the defendant
No. 3 is not willing ta. 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 1 O. 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 denie_d 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 oi issues were framed by the trial judge, including a
specific issue as to the maintainability of the suit because of the nonjoinder of defendant No. 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.
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 perfor1nance in the Rungmahal Theatre in any manner whatsoever or to
use il 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 in junction 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.
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775
As has been stated, th_e 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 jime to time.
It has been argued by Mr. Mazumdar ou behalf of the appellants
that as the licence was given by the plaintiff and Jitendra Nath Bo->,e as
joint promisees 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 coplaintiff.
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 Jent 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 performance 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 cnured to
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
fol!O\VS,-
"J. 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 Jaw 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
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SUPREME COURT REPORTS
[ 1978] 1 S.C.R.
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
p~non cannot be
pre\'ented 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(",)
and Pyari Mohun Bose v.
Kedamath Roy('), 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 proqiisees, 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. Reference in this connection may also be made to Monghibai v. Cooverji Umersay("), 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."
D
In Pramada Nath Roy v. Bameni Kanta Roy( 4 ), it was held by the
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Privy Council that, ill the event of rent being unpaid, the ,,wners of the
zamindari 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 Tena.ncy Act,. but from quite another branch of !aw,
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. Manila/ Bhogilal Desai('), Hari Singh v. Firm Karam
Chand Kanshi Ram( 1), Sobhanadri Appa v. v. Parthasarathi Appa Rao
Savai Aswa Rao Bahadur(') and Nathaniel
Uraon
v.
Mahadeo
Uraon( "), 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 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.
(!) I.L. R. XXIV All. 226which 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) LL.R. XXXV Cal. P. C. 331.
(5) A.LR. 1928 Born. 191.
(7) A.LR. 1927 Lahore 115.
(9) A.l.R. 1957 Patna 511.
(6) A.LR. 1935 Bom.'262.
(8):A.I.R.1932 Mad. 583.
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JAHAR ROY v. PREMJI BHIMJI (Shinghal, J.)
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
er verbal, where a contract is entered into with several persons jointly, they should all join in an action upon it."
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This passage occurs under the rubric "Actions by and against partB
ners where no change in the firm has occurred," and is subject to the
general observations stated by Lindley .under the earlier rubric "~ction.s
by and against partners." While makmg 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
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must, except with the leave of the court, be made a coplaintiff 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(') and Johnson v. Stephens
and Carter Limited and Golding('). 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.(') the position obtaining in England was set out by Lord Denning, M.R. in the following words,-
"! think that the judge's decision proceeds on a misunderstanding of Johnson v. Stephens and Carter, Ltd.(')
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
defendant, he cannot complain."
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It would thus appear that there is no force in the argument of Mr.
Mazumdar to the contrary.
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(1) [1898] 2 Q. B.
380.
(3) (1968) 2 All E.R. 286.
(2) [1923] 2 K. B, 857.
(4) [1923] All E.R. 701.
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778
SUPREME COURT REPORTS
[l978j 1 S.C.R.
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 unfaw-
(u! possession thereof. Reference in this connection may be made to
the decisions in Mahabala Bhatia v. Kunbanna Bhatta etc.(') Chandri
v. Daji Bhau('), Gopal Ram Mohuri v. Dhakeshwar Pershad Narain
Singh("), Syed Ahmad Sahib Shutari v.
The
Magnesite Syndicate
LtdC1), and
Magan/al
Bulabhadas
v.
Bhadar
Purslwtta111
and
others(").
The remaining argument of Mr. Mazumdar relates to the question whether the defendants were entitled to stage any' play otl1er 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 !he
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
entitleLl 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 Sivaratri 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 o[ the period
(I) I.L.R. XXl Mad 373.
(2) T.L.R. XXIV Born. 504.
(3) I.L.R. X:XXV Cal. 807.
(5) A.f.R. 1927 Boru. 192.
(4) l.L.R. XXIX Mad. 501.
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JAHAR ROY v. PREMJI BHJMJI (Shinghal, J.)
779
.of the licence, the benefit of the proviso could ensure 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 \vith the concurrent finding that the
"normal run" of
"'Katha K«o" came to an end when the defendants started staging the
other dramas three times a week and relegated "Katha Kao" to one
show ln 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 on other 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 Ileen able to point out how the finding of fact of the High
Comt that the "normal run" of "Katha Kao" came to an end when the
defendants >tarted performing another drama along with it after the
·expiry of 011e year's period of the licence could be said to have been
vitiated by any error of law or procedure.
Mr ..
~fazumdar 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 untcnab!e 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. l ).
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 invite.cl 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 plarnt1ff was not entitled to claim any relief in the 5uit which is
the su bjcct matter of the controversy before
us,
that the Receiver
were
nece6sary
parties
and
that
the
plaintiff
no
longer had any right to claim any of the reliefs in this suit because cf
the total failure. of his cause of action.
It would be sufficient for us
to say thJt 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.
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There is thus no merit in this appeal and it dcservc5 to be dismis~ed. I! may however be mentioned that the High Court, perhaps
by maclvertence, confined the decree for compensation at the rate of
ll-95!SCI/77
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780
SUPREME COURT REPORTS
(1978] J S.C.R.
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Rs. 5,275/- per month to the plaiqtiff who was, however, not the
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sole licensor.
The plaintiff and defendant No. 3 being joint pro-
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misees 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.
S.R.
Appeal dismissed. modifying the decree.
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