KADAR KHAN Vs. HAZRAN

JUDGEMENT

(1.) THIS is a second appeal by the plaintiff Kadarkhan against the judgment of the learned District Judge, Merta, dated 19th October, 1954, by which he dismissed the plaintiff's suit for recovery of a certain amount of money in disagreement with a judgment and decree of the learned Munsiff, Nagaur, decreeing the plaintiff's suit.

(2.) THE facts and circumstances leading up to this appeal may be shortly stated as follows. Kadarkhan had obtained a lease to work lime stone from the Mining Deprt. of the State of Jodh. as it then was by an order dated on the 16 Oct. ,1943. On 11 Oct. 1943 it appears that he sub-let this contract to defendant Mehmood. This contract of sub-letting is contained in document Ex. P-8 dated the 11th Oct. 1943. THE plaintiff's case was that it had been mutually agreed between the parties, among other things, that defendant Mehmood would pay the instalments of royalty to the Government if and as they would fall due. Accordingly Mehmood carried on the work of this contract from the nth Oct. , 1943, to the 31st August, 1944. THE plaintiff's grievance is that although the defendant had recovered whatever income accrued from the contract during this period, the latter did not pay the full amount of the royalty which was payable for this period and which amounted to Rs. 998/- and the defendant had paid only Rs. 298/- to the Mining Department. Consequently, the plaintiff brought the present suit for the recovery of Rs. 700/- only.

(3.) WE are then left with the conditions of the licence which was granted to the plaintiff by the order of the Mining Department dated the 16th Oct. , 1942. Cl. (8) of these conditions provides that the contract will be heritable but not otherwise transferable and subletting of the contract would render the contract liable to cancellation in which case no claim for compensation will be considered and no payment will be refunded. It is by virtue of this clause of the contract that the learned Judge felt persuaded to hold that the contract of sub-letting between the patties was illegal and could not be enforced in law. With all respect, I find it difficult to agree with the finding of the learned Judge that the contract in question was unlawful or that it was forbidden by law or that it was of such a nature that if permitted, it would defeat the provisions of any law or further still that the contract was immoral or opposed to public policy. So far as the meaning of the phrase 'public policy' is concerned, it is undoubtedly a wide expression which may cover a great variety of topics; but there is authority for the proposition that the doctrine of 'public policy' should not be extended beyond the classes of the cases already covered and that the courts should be extremely slow to invent a new head of public policy. There is also authority for the proposition that any covenant or clause in a lease or grant by the Government would not be one opposed to public policy as such. See Vassandmal Daveldas Vs. Hiromal Mohanmal (2 ). I am, therefore not prepared to hold that a breach of the clause in the conditions like the present was opposed to public policy or was in any way immoral.