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TMI Blog1977 (11) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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. Mazumdar's argument in that behalf in due course. 3. Plaintiff Premji Bhimji Mansata and J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anuary 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 oh 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, upto 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 1.5 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 person cannot be prevented from bringing an action, by any rule of law or practice, merely because he is a joint promise 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 which was decided in 1898) and Pyari Mohun Bose v. Kedarnath Royi which was decided in 1899), 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 promises, making the other as co-defendant, is maintainable even if the plaintiff does not prove that the other joint promise has refused to join him as a co-plaintiff. Reference in this connection may also be made to Monghibai v. Cooverji Umersay 15 I A 210 , where it has been observed as follows,- It has long been recognized that one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Where a plaintiff claims any relief to which any other person is entitled jointly with him, every such other person must, except with the leave of the court, be made a to-plaintiff or (if he refuses) a defendant. It cannot therefore be urged with any justification that a contrary view has been stated by Lindley. 14. 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 promise 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 1898 2 Q.B. 380 and Johnson v. Stephens and Carter Limited and Golding1923 2 K. B. 857. 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. 1968 2 All E.R. 286 the position obtaining in England was set out by Lord Denning, M.R. in the following words,- I think that the judge's de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 judgment. 18. 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 shows 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 Sivaiatri 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24, 1970 and for some other reliefs. Our attention has also been invited 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 plaintiff was not entitled to claim any relief in the suit which is the subject matter of the controversy before us, that the Receiver 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. 21. There is thus no merit in this appeal and it deserves to be dismissed. It may however be mentioned that the High Court, perhaps by inadvertence, confined the decree for compensation at the rate of Rs. 5,275/- per month to the plaintiff who was, however, not the sole licensor. The plaintiff and defendant No. 3 being joint promises are equally entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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