PUVVADA VENKATA SUBBAYYA Vs. ATTAR SHEIK MASTAN

JUDGEMENT

(1.) The appellant filed the suit, from which this Letters Patent Appeal arises, for the recovery of a sum of Rs. 2,196-10-0 from the defendants. The first defendant has, however, throughout been the only contesting defendant. The learned Principal District Munsif of Ongole who tried the suit gave the appellant a decree for Rs. 1,227 and an appeal by the first defendant was dismissed by the Subordinate Judge of Bapatla. The first defendant then filed an appeal in this Court which was allowed by Shahabuddin, J., on the ground that the agreement on which the respondent's claim was based was unlawful and so void ab initio. Shahabuddin, J., however, gave leave to the plaintiff in this suit, the present appellant, to appeal from his decision.

(2.) It appears from a perusal of the plaint that the foundation of the suit ciaim is that three toddy shops bought in the name of the first defendant and four shops in the name of the second defendant in the Ongole Taluk for the year 1 October, 1937 to 30 September, 1938 were in fact bought for the plaintiff with money advanced by him subject to an agreement with the defendants that the plaintiff should manage the shops and enjoy the profits from them. Thereafter, the plaint recites, the plaintiff did manage the shops and take the profits until March, 1938. When, however, the plaintiff called on the defendants to transfer the shops in his name, the first defendant refused to execute a deed of transfer in respect of the three shops in his name and from the 11 March, 1938, ejected the plaintiff from them. At the end of the plaint the plaintiff prayed for a decree directing the defendants to pay to the plaintiff a sum of Rs. 2,196-10-0 as mentioned in the schedule filed with the plaint. The schedule when looked at causes some surprise. The body of the plaint would appear to be laying a foundation for a claim for damages for breach of the agreement based on the loss of profits from March 1938 to the termination of the lease. The schedule, however, discloses no such claim. There are 11 items of claim. The first four are in respect of deposits made as security for payments of the monthly rent for the shops and the other major items, although by no means explaining themselves, appear to be claims for damages for loss occasioned by the first defendant's interference with the tree-tapping leases and for loss of profits due to the first defendant's occupation of the shops from 11 March 1938 to 31 March 1938. The precise legal basis for these claims is by no means clear. But the plaintiff seems to have limited his claim to loss or damage suffered only upto 31 March, 1938, because he paid the cist for the shops up to the end of March, and not thereafter; and he appears to have asked for the return of deposits on the footing that they were made with money advanced by him in pursuance of an agreement which had been broken by the first defendant.

(3.) Both the lower Courts were of opinion that the agreement between the appellant and the defendants was not illegal, but except for the amounts deposited and certain admitted amounts they negatived the balance of the claim on the ground that the evidence was insufficient to assess the extent of the damage. In our opinion, apart from the question whether the arrangement was or was not illegal and so unenforceable, it may seriously be doubted on the facts whether a decree should have been given for any part of the claim. The suit was filed in July, 1938 and it is difficult to see how on that date the appellant was entitled in any event to recover the deposits made by him in the first defendant's name when the first defendant himself could not have been repaid the deposits until the lease of the shops expired, viz., on the 1 October, 1938. But, however, that may be, we can have no doubt that the view taken by Shahabuddin, J., that the agreement between the appellant and the defendants was illegal and not enforceable so that the appellant was not entitled to recover anything from the defendants is correct.