1977 (11) TMI 149 - SC - Indian Laws

Summary

Issues Involved:
1. Maintainability of the suit under Section 45 of the Contract Act.
2. Entitlement of defendants to stage plays other than "Katha Kao."
3. Validity of the termination of the agreement.
4. Impact of a subsequent suit filed by the plaintiff on the current proceedings.

Issue-wise Detailed Analysis:

1. Maintainability of the Suit under Section 45 of the Contract Act:
The appellants argued that the suit was not maintainable under Section 45 of the Contract Act as it was filed by one of the joint promises without joining the other as a co-plaintiff. Section 45 specifies that the right to claim performance rests with all joint promises unless a contrary intention appears in the contract. The court noted that the section deals with the devolution of joint rights but does not preclude one joint promise from filing a suit by making the other a proforma-defendant. The court referenced Order 1 Rule 1 of the CPC, which allows all persons with a right to relief to be joined in one suit, even if one refuses to be a plaintiff. The court cited precedents, including Monghibai v. Cooverji Umersay and Prarnada Nath Roy v. Bameni Kanta Roy, which support the maintainability of such suits. The court dismissed the argument that indemnity against costs was necessary, referencing Burnside v. Harrison Marks Productions, Ltd., which clarified that such a rule protects the joint contractor, not the contesting defendant.

2. Entitlement of Defendants to Stage Plays Other than "Katha Kao":
The court examined whether the defendants were entitled to stage plays other than "Katha Kao," which was being staged during the week before the expiry of the one-year licence period. The agreement allowed the defendants to use the theatre for specific shows per week, and the proviso allowed the continuation of the drama being staged before the licence expiry. The court found that "Katha Kao" was the only play staged in the week preceding the licence expiry, and thus, the benefit of the proviso applied solely to "Katha Kao." The staging of other dramas like "Adarsh Hindu Hotel," "Nishkriti," and "Swikriti" after the licence period was deemed a violation of the agreement. The court upheld the finding that the "normal run" of "Katha Kao" ended when other plays were staged, reducing "Katha Kao" to one show a week.

3. Validity of the Termination of the Agreement:
Mr. Mazumdar argued that the agreement was not validly terminated as the plaintiff did not refund Rs. 10,000/- as required by paragraph 16 of the agreement. The court found this argument untenable as it was not pleaded in the written statement nor was it the subject of any issue during the trial.

4. Impact of a Subsequent Suit Filed by the Plaintiff on the Current Proceedings:
The legal representatives of Jahar Roy argued that a subsequent suit filed by the plaintiff in 1970 for the dissolution of the partnership and the appointment of joint Receivers affected the plaintiff's right to claim relief in the current suit. The court noted that these arguments were not raised in the High Court and thus could not be entertained in this second appeal. Additionally, the court found that these arguments had no bearing on the current appeal.

Conclusion:
The appeal was dismissed with a modification that the compensation at the rate of Rs. 5,275/- per month should be equally divided between the plaintiff and defendant No. 3, as they were joint promises. There was no order as to the costs of the court.