Shinghal, J. - (1.) The first two defendants, who lost in the trial court as well as on appeal, came to this Court on a certificate granted by the High Court under Art. 133 (1) of the Constitution as it stood before the Constitution (Thirtieth Amendment) Act, 1972, Jahar Roy, defendant No. 1, died a day after the commencement of the hearing of this appeal. On that date, when we were informed about his death by Mr. Mazumdar who was his Advocate-on-record also, we gave him the option of continuing the arguments so that they may be concluded without any break and file a petition for substitution of the legal representatives of Jahar Roy before the delivery 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, along with 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 Jitendra Nath Bose defendant No. 3 carry on business in partnership in the name and style of "Rungmahal Theatre", in Calcutta, of which they are joint lessees. They pay a monthly rent of Rupees 2,500 including the rent of fixtures and furniture. They also pay municipal rates and taxes, electric charges and the cost of maintenance of machinery, fittings and furniture. Both of them have been described in the plaint as "the Management" of the Rungmahal Theatre. Jahar Roy, defendant No. 1 and Smt. Sarajubala Devi, defendant No. 2, hereinafter referred to as the defendants, entered into an agreement with the plaintiff and defendant No. 3, on January 17, 1962. The agreement, in which the defendants were described as "the Artistes" provided, inter alia, as follows:- "1. The management agree to allow the Artistes the use of "Rungmahal Theatre" as the Licensees thereof including the stage, Theatre-hall, the Dressing rooms used in connection therewith, the existing scenes and dresses for the purpose of public performances and shows thereat of Bengali Dramas for a period of one year from the date hereof on the days and in the manner following:- (a) One Evening show on each Thursday. (b) One Evening show on each Saturday. (c) One Matinee and one evening shows on each Sunday and other public holidays and also one whole night performance on the occasion of Sivratri and Janmastami each. All the extra expenses including the corporation charges and extra remuneration payable to staff for such whole night performances will be borne and paid by the Artistes. They would also obtain necessary permission from the authorities concerned: Provided always and it is hereby expressly agreed that the Artistes would be entitled to continue with the shows of the drama that they would be actually staging during the week before the expiry of one year until the same is closed by the Artistes after a normal run." It was further agreed that defendants would be entitled to all box office collections, but they would contribute a sum of Rs. 5,275 every month towards the expenses mentioned in paragraph 5 of the agreement and would pay that sum to the Management within the 7th day of each month succeeding the month for which it became due.;