PANKAJ MITHAL, J. - (1.) THE substantial question of law arising in this appeal is whether any term or condition which has otherwise been proved to have been accepted by the parties but not incorporated in the agreement duly ex­ecuted can be read into the agreement without seeking its rectification.
(2.) THE plaintiff instituted original suit for perpetual injunction restraining the defendants from realising "line rental charges" in respect of an electric connec­tion sanctioned to it for running straw board manufacturing industry. The suit was brought on the ground that an electric connection was sanctioned and granted to the plaintiff by the defendants under a written agreement dated 2.2.1965 (Ext.-2). The said agreement does not contain any term or condition therein that the plain­tiff will be liable to pay any "line rental charges" and that no such term or condi­tion for payment of the same was ever agreed upon between the parties. The defendants on 19.9.68 through the Executive Engineer (Maintenance) demanded "line rental charges" from the plaintiff at the rate of Rs. 151.26 per month with effect from 15.5.65, total amounting to Rs. 6126.30. Thereafter, further demands of "line rental charges" at the increased rate were raised from time to time. All such demands are unlawful. Apart from other issues, two issues touching the merits of the case were framed. First, whether the payment of "line rental charges" was agreed upon between the parties and it could not be mentioned in the agreement dated 2.2.65 due to mistake; and the other whether the defendants are not entitle to claim "line rental charges" as alleged or they are entitle to rectification of the agreement as claimed. The defendants admitted that the condition imposing liability to pay "line rental charges" upon the plaintiff was left out to be incorporated in the agreement but in effect the same was agreed upon and was accepted and, therefore, the plaintiff is obliged to pay the same and the demand raised in this connection is not illegal.
(3.) THE Courts below concurrently held that the agreement dated 2.2.65 (Ext. 2) entered into between the parties, admittedly, does not contain any term and condition regarding payment of "line rental charges" by the plaintiff. However, it was found that the terms and conditions contained in the letter dated 23.1.64 were accepted by the plaintiff which provided that it shall be liability of the plaintiff to pay either the installation charges or the "line rental charges" but the said condition could not be mentioned in the written agreement due to mutual mistake on the part of the parties and, therefore, in effect, the plaintiff having accepted to pay the "line rental charges", is liable to pay the same and the agreement stands rectified to the extent.;