Arpan Ali v. Jnanendra Kumar Pal Choudhury

1. The Plaintiffs Respondents are the owners of a market in the town of Habiganj, called the Chowdhury Bazar. The Defendants are fishermen of nine neighbouring villages, Nowahati alias Jallabad and others. They have been sued under Or. 1, r. 8 of the Civil Procedure Code as representing all the fishermen of the said nine villages. So all the fishermen of the said nine villages would hereafter be called “the Defendants.”

2. The facts are not now in controversy. In Habiganj there was an old market, called the Puran Bazar, which belonged to some other person or persons. Before 1883 the grandfather, or it may be, a remoter ancestor, of the Plaintiffs established the market, known as the Chowdhury Bazar on his own land. Fishermen of twelve villages, including those nine villages, where the Defendants reside, began to sell fish in the Chowdhury Bazar for a time. Then those fishermen deserted that market and went to sell fish in the Puran Bazar. After a time they returned to the Chowdhury Bazar in 1883. At that time the Plaintiff's father, Hara Kumar Pal, was the owner of Chowdhury Bazar, He was a minor and his estate was under the management of the Court of Wards. On their return to Chowdhury Bazar, a registered ekrarnama (Exhibit 1, hereafter called the ekrarnama) was executed on the 13th June, 1883. The first party was the manager of the Court of Wards representing Hara Kumar Pal, and the second parties were the fishermen of some of those twelve villages representing all the fishermen of all those twelve villages. The substance of the ekrarnama is: (1) that the fishermen of the said twelve villages were to be allowed to sell fish in a selected place inside Chowdhury Bazar; (2) that those fishermen undertook to sell fish there every day, morning and evening; (3) that they undertook not to leave that market and sell fish elsewhere, and (4) if they did without the written permission of the owner, but not on account of the oppression of the owner's agents, they would pay Rs. 500 as compensation to the owner.

3. Shortly before the suit in which this appeal arises, the Municipal Commissioners of Habiganj started another fish market in that town and the Defendants began to sell fish in the Municipal Market without the consent of the Plaintiffs. This led to trouble. There were proceedings under sec. 145 of the Criminal Procedure Code and fish market in Chowdhury Bazar was attached by the Criminal Court. There was also a riot in which the Plaintiff's agents and the fishermen of the aforesaid nine villages were involved. Criminal proceedings for rioting were also started. The Plaintiff's agents were convicted by the trying Magistrate but they were acquitted by this Court in revision by an order dated the 16th May, 1939 (Exhibit 14). In those criminal proceedings the Defendants had set up the case that they had the monopoly to sell fish in Chowdhury Bazar. After the institution of those criminal proceedings, but before the order of acquittal by this Court, the Plaintiffs served notices on the Defendants in December, 1938, intimating that the licence given to them to sell fish in their market was at an end (Exhibit A). Among other things, the notice stated that they, the Defendants, could not sell fish in the Plaintiff's market without their consent and that the licence to sell fish there was revocable at their pleasure; that in any event the Defendants are not to enter their market as they could no longer claim any licence from the Plaintiffs to sell fish there by reason of the loss they had caused to the market by committing riot inside the market. Thereafter the suit in which this appeal arises was instituted on the 3rd January, 1939. The Plaintiffs aver that the Defendants had been selling fish in their market by virtue of the licence granted by the ekrarnama (Exhibit 1) of the 13th June, 1883, that that licence was revocable at will and had been revoked, alternatively that the said licence, if not revocable at will, had been revoked by them on good grounds. They pray (i) for a declaration that the Defendants have no monopoly to sell fish in their market, (ii) for an injunction restraining the Defendants from preventing other fishermen selling fish there, and (iii) for an injunction restraining the Defendants from entering their market and selling fish there.

4. The Defendants contended that they had a monopoly to sell fish in that market, that the licence is not revocable at will and that it could not be revoked on the facts of the case. Both the Courts below have decreed the suit and have granted all the three prayers mentioned above. The Defendants have preferred this second appeal. Mr. Gupta appearing for them does not contend before us that the finding of the lower Courts that the Defendants have no monopoly to sell fish in that market is wrong. He accepts that conclusion of the Courts below. On that view he does not also contend that the first injunction, that is, the one which restrains the Defendants from preventing other fishermen from selling fish there, has been wrongly given.

5. He admits that by the ekrarnama a licence only was given to the fishermen of the twelve villages mentioned in that document but contends that the licence so given was not revocable at will and so the second injunction by which his clients have been restrained from going into that market to sell fish cannot stand. The proposition, of law that he contends for is that if there is consideration for a licence, that licence is not revocable at will, and he submits that the ekrarnama itself shows that consideration had moved from both the licenser and the licensees. We agree with his last-mentioned contention. A benefit was conferred by the ekrarnama on the fishermen, namely to sell their fish in the market, but the owner of the market also secured a benefit, namely of having a good many fishermen obliged to sell fish in his market every day, both morning and evening, which as the ekrarnama mentions, would lead to the improvement of the market. The finding of the lower Appellate Court that the licence was without consideration, therefore, cannot stand. The proposition of law formulated so broadly by Mr. Gupta will, therefore, have to be examined. If it is a good proposition the reasons given by the lower Appellate Court would fall to the ground and the appeal will have to be allowed in part unless good cause is made out for the revocation of the licence.

6. To support his contention Mr. Gupta relies upon the judgments of the majoity in Hurst v. Picture Theatres, Ltd. 1. He develops his argument in the following manner: Wood v. Leadbitter . 13 M. & W. 845 1845 was decided by a Court of Common Law, namely the Court of Exchequer. That decision was given in 1845, that is, before the Judicature Act. In Hurst's case, Buckley, L.J, pointed out that the actual decision in Wood v. Leadbitter would have been different, if a bill had been filed in a Court of Equity at that time, and as after the Judicature Act there is in England no distinction between Courts of Equity and Courts of Common Law but both common law and equity are administered by the same Court, namely, the High Court of Judicature in England, the law laid down by Baron Alderson in Wood v. Leadbitter is no longer good law in England, and as there has been at no time any distinction in India, as was in England, between Courts of Law and Courts of Equity the law laid down in Wood v. Lead bitter cannot at any time be considered to have been good law in India, His argument has to be carefully examined.

7. The general proposition laid down by Baron Alderson in Wood v. Leadbitter is as follows:

“A licence is by its nature revocable but what is called a licence is often something more than a licence; it either comprises or is connected with a grant, and the party who has given it cannot in general revoke it, so as to defeat his grant to which it was incident.”

8. This passage on analysis resolves itself into two propositions of law: (i) A licence is ordinarily revocable at will; (ii) out not so a licence coupled with a grant. Those two propositions were not laid down for the first time in Wood's case. That was how the common law was understood ever since 1674, when Vaughan, C.J, decided Thomas v. Sorrel . Vaughan's Report 351 1674.. Those two propositions have not been doubted in England either before or after the Judicature Act and are still maintained by reputed text-book writers. It is not necessary for us to mention the long line of cases decided in England which have either directly or inferentially approved them before and after the Judicature Act. Some of those cases are noticed in the judgment of Phillimore, L. J., in Hurst's case at page 17 of the report. The entirety of the decisions in Wood's case and in Hurst's case—the actual decrees—were however opposite to each other. In the first case, the Plaintiff who had bought a ticket to see a horse race was turned out of the enclosure without any good cause before the races had ended; in the second case the Plaintiff who had bought a ticket to see a performance, was turned out without any good cause from the theatre when the performance had not ended. In the first case he was non-suited, in the second he got substantial damages.

9. The first explanation of Wood's case as given by Buckley, L.J, is convincing. The grant which must be coupled with the licence in order to make the licence not revocable at will could not be proved in a Court of common law as it was not made by deed. Hence the Court of Exchequer proceeded upon the footing that there was no grant of “the right to remain” in the enclosure up till the end of the races. It proceeded upon the principle that “of things which do not exist and things which do not appear the reckoning in a Court of law is the same. If, however, the grant, though not by deed, was made for consideration,—in that case the consideration was the money paid for the ticket—the Courts of Equity would ignore the form and say that there was in effect a grant As Hurst's case was after the Judicature Act every Division of the High Court was bound to hold that there was in effect a good grant, for by that Act Courts of Common Law and of Equity had been fused into one Court, namely the High Court of Judicature in England. To take an illustration similar to one of the illustrations given by Vaughan, C.J, if A allows B into his house to eat his meat, the licence to enter the house would be held revocable at will even before B has finished his eating by all Courts in England, before and after the Judicature Act, but if B had paid for the meat to, be eaten or had sent spices for cooking that meat the licence could not be revoked before B has finished the eating and this would have been the decision of all Courts in England both before and after the Judicature Act, for such a grant, namely the privilege to eat the meat, when there is consideration given by B for the eating, would not have required a deed. The second branch of reasoning adopted by the majority in Hurst's case is that where a man buys a ticket to witness a theatrical performance or to see or bet at a race there is an implied contract that the licence to remain in the enclosure is not to be revoked by the licenser till the end of the performance or till the races for the day to which the ticket relates are over. That aspect was missed in Wood v. Leadbitter. On a review of the cases decided the conclusion that we arrive at is that the law its England is

(i) that a mere licence is revocable at will;

(ii) that a licence coupled with a grant or interest is not revocable, except for sufficient cause, till the grant to which the licence is incident, is exhausted; and

(iii) that a licence which would otherwise have been revocable is not revocable if there is a contract (which means an agreement for consideration) between the licenser and the licensee not to revoke the licence for a time or indefinitely till the period mentioned in the contract expires. The contract may either be express or may be implied (Clerk & Lindsell on Torts pages 422 and 423, 19th Edition).

10. In the case before us the only thing we have to see is whether there is either an express provision in the ekrarnama or anything in it from which such a provision can be necessarily implied, namely, that the licence given to the fishermen to self fish in the market was not to be revoked by the licenser either for a time or never. If there is such a condition that would have to be respected for, as we have already held, the said ekrarnama was supported by consideration. There is no express provision of that nature in that document, nor do we find anything there from which such a provision can be necessarily implied. As there was no contract express or implied that the licence was not to be revoked at all or for a certain time, the Plaintiffs were entitled to revoke it, notwithstanding the fact that consideration moved from both sides when the ekrarnama was executed. This conclusion of ours is sufficient for the disposal of the appeal.

11. At the time of the hearing of the appeal we intimated that we would in this case exercise our powers under sec. 103 of the Code of Civil Procedure to see if there is sufficient evidence on the record to justify a finding that there was good cause to revoke the licence, if it was not revocable at will. With that view we gave the learned Advocates opportunity to go through the record and to place the relevant evidence before us. Thereafter we heard them at length. The evidence discloses that after the Municipality had established the municipal market the De-fendants in a body went there to sell fish. They entered into an agreement with the municipal authorities that they would sell fish in the municipal market and not in any other market in the town of Habiganj. One of the conditions in the ekrarnama is that the fishermen of the twelve villages mentioned therein would not leave the Plaintiff's market and sell fish elsewhere, without the licenser's written consent. The Defendants are selling fish in the municipal market without the consent of the Plaintiffs. They were also selling or attempting to sell fish in Chowdhury Bazar till the riots occurred. No doubt the Defendants had not totally abandoned the Chowdhury Bazar, nor have any intention to do so, but in view of the agreement with the Municipality their selling fish in the Chowdhury Bazar was and would be only a colourable compliance with that condition in the ekrarnama. The evidence further establishes the fact that the Defendants were not without responsibility so far as the riots were concerned and in the events which led to the attachment of the market. Their acts did certainly affect its prosperity. Their action in going over in large numbers to a competing market, namely the Municipal market, was itself an act which prejudicially affected the prosperity of Chowdhury Bazar. In these circumstances we hold that even if the licence was not revocable at will it had been revoked by the Plaintiffs for sufficient cause.

12. The result is that this appeal is dismissed with costs.

C.C