LexJAHAR ROY (DEAD THROUGH L.RS) AND ANR. versus PREMJI BHIMJI MANSATA AND ANR.
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A B c D E F G H 770 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 11on- n1ain1ainable, 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 appel- lants 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 perma- nent 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 compensa- tion 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 ... r- ' 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 m
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