HADIBANDHU BEHERA Vs. GOPAL SAHU

JUDGEMENT

(1.) The plaintiff obtained a license from the Government for two excise shops from 1 April 1936 to 3l March, 1987 for which he was liable to pay a monthly fee of Rs. 320. According to the rules he had to pay in advance Rs. 640 for two months fees. He also purchased ganja, opium and bhang worth Rs. 462-4-0 for the two shops. He then entered into an arrangement with the defendants, who are father and sons, under which they were put in charge of the two shops on the conditions that they would pay to the plaintiff the sum of Rs. 640, paid by him in advance for two months fees, Rs. 462-4-0 the value of the stock of opium, ganja and bhang and would further pay him profit at the rate of Rs. 35 per month. The defendants were also put in charge of the furniture of the shops which it was agreed, they would hand over to the plaintiff at the end of the year. The defendants conducted the business of the shops till the e March, 1937, but in spite of repeated demands did not pay his dues. The plaintiff thereupon brought the present suit on 12 July 1937 for recovery of Rs. 640 the license fees for two months, Rs. 462-4-0 the price of the stock, Rs. 420 profits for one year and Rs. 37 price of the articles of furniture together with Rs. 39 as interest, total Rs. 1598-4- 0. In the alternative he asked for accounts from the defendants. The defendants denied the alleged agreement and asserted that they were mere salesmen on the monthly pay of Rs. 15 and that they had paid the sale proceeds to the plaintiff from month to month. The Munsif accepted the plaintiff's story and decreed the suit for recovery of the amount claimed.

(2.) On appeal, his dicision was set aside by the District Judge who held that the agreement pleaded by the plaintiff was illegal, being in Contravention of the rules framed under Section 89, Bihar and Orissa Excise Act, and therefore the plaintiff was not entitled to recover anything on the basis of the agreement. Accordingly he dismissed the plaintiff's suit. Hence, this second appeal by the plaintiff. The first contention of Mr. Subba Rao for the appellant is that the agreement does not offend the provisions of the rules made under the Bihar and Orissa Excise Act. Rule 143 provides that: No transfer or sub-lease (whether entire or partial) of a licence shall be made except with the previous permission of the Collector. Section 57(c), Bihar and Orissa Excise Act, enacts that: If any holder of a license, permit or pass granted under this Act, or any person in his employ and acting on his behalf wilfully does any act in breach of any of the conditions of the license, permit or pass, for which a penalty is not prescribed elsewhere in this Act, he shall be liable to fine which may extend to five hundred rupees.

(3.) The District Judge has found that the agreement alleged by the plaintiff amounts to a sub-lease. This finding is seriously challenged by Mr. Rao.His contention is that the defendants were actually liable as salesmen on the conditions set forth above. It is clear from the terms of the agreement that the defendants were given entire charge of the shops and the only interest which the plaintiff retained was to get profit of Rs. 35 a month. Under the terms of the agreement, the defendants were liable to repay the plaintiff the sum of Rs. 640 which he had paid, as advance fees to the Government. The defendants were also to pay him the price of the stock which was made over to them at the time they were put in charge of the shops. In short, the plaintiff assigned his interest in the shops to the defendants, reserving to himself the right to receive from them us. 35 as profit per month. Obviously this amounted to a transfer and perhaps also to a sub-lease. The conditions are wholly inconsistent with the defendants being servants of the plaintiff.