Andhra HC (Pre-Telangana)
Kunala Subbarao And Anr. vs Padam Nagaratnayamma on 7 February, 1994
Equivalent citations: 1994(2)ALT1
JUDGMENT S. Parvatha Rao, J.
1. These two appeals arise out of two connected suits which were disposed of by a common judgment dated 26-8-1982 by the learned Subordinate Judge at Kovvur. A.S.No. 2269 of 1982 is preferred by both the defendants against the judgment and decree in O.S.No. 65 of 1976 on the file of the learned Subordinate Judge who partly allowed the said suit. A.S. No. 162 of 1982 was preferred by the unsuccessful plaintiff in the District Court of West Godavari against the judgment and decree in O.S. No. 46 of 1978 on the file of the learned Subordinate Judge, and the same was transferred to this Court as per order dated 16-12-1983 in Tr.C.M.P. No. 6896 of 1983 to be heard along with A.S. No. 2269 of 1982. That is how these two appeals are heard together and are now being disposed of by a common judgment.
2. The parties to the two suits are common and the suits arise out of the same transaction. It is convenient to refer to the parties as arrayed in the suits. The plaintiff in the two suits is the owner of the motor launch named Swarajya Lakshmi registered in the Office of the P.W.D. at Dowlaishwaram under No. 737-G weighing 14 tonnes and fitted with 21 H.P. Lister engine bearing No. 58833 (2-1) with gear box and reduction gear box. it was given in full and working condition to the 1st defendant in both the suits on rent for plying in the Godavari River for one year i.e., 1-8-1974 to 31-7-1975 on a monthly rent of Rs. 350/- under a rental agreement dated 1-8-1974 (marked as Ex.A-1). The terms of the agreement required the 1st defendant to pay the rent of Rs. 350/every month and to keep the launch in good repair and to deliver back the launch with all its engine parts and the body of the launch in its original good condition to the plaintiff at Polavaram Revu immediately after 30-7-1975. The 1st defendant was also required to keep an interest free deposit of Rs. 1,000/- with the plaintiff which was returnable to him after the launch was delivered back. According to the plaintiff, on 1-8-1974 at the same time when Ex.A-1 was executed, the 2nd defendant, who was living with the 1st defendant, also executed an agreement of surety in her favour undertaking to discharge all the sums due to her from the 1st defendant in respect of Ex.A-1 agreement from out of her properties (marked as Ex.A-2). The defendants however contend that Ex. A-2 is a forged and got up document - more about it later. The 1st defendant took delivery of the suit launch on 1-8-1974 itself after depositing Rs. 1,000/with the plaintiff. He paid rents upto the end of April, 1975 but did not pay any rents thereafter not returned Swarajya Lakshmi after the expiry of the agreement period. It is the case of the plaintiff that the 1st defendant also removed the engine i.e., gear box, spare parts, pistons, liners etc., of Swarajya Lakshmi and got them fitted to his own launch named Vijaya Sri bearing registration No. 725-G and kept Swarajya Lakshmi or what remained of it at Dowlaishwaram. After the plaintiff came to know about the same through her husband, she got the matter raised before two mediators by name Vulavala Narayana Rao and Konatala Narayanaswamy for making the 1st defendant return the suit launch with all its engine parts etc., intact and to pay the rent and damages due to her. According to the plaintiff, the defendants agreed to do so as advised by the mediators, but did not do so.
3. The plaintiff instituted O.S.No. 159 of 1976 on the file of the District Munsif's Court at Kovvur on 3-4-1976 which was subsequently transferred to the Subordinate Judge's Court at Kovvur and re-numbered as O.S.No. 46 of 1978. In the said suit, the plaintiff sought recovery of the rents for the months of May, June and July, 1975 at the rate of Rs. 350/- per month under Ex.A-1 together with interest at 12% per annum which came in all to Rs. 1,144-50 Ps. by the date of the suit, and also damages at Rs. 600/- per month from 1-8-1975 to 31-3-1976 which came to Rs. 4,800/- and also obtained attachment before judgment of the specified properties. Thereafter, the 1st defendant presented O.S.No. 214 of 1976 on the file of the District Munsif's Court at Kovvur on 19-4-1976 against the plaintiff for refund of deposit amount of Rs. 1,000/together with interest which came to Rs. 1,123-33 Ps. on the date of the suit, and costs. The said suit was also transferred to the Subordinate Judge's Court at Kovvur and re-numbered as O.S.No. 43 of 1978. Subsequently O.S.No. 65 of 1976 was laid by the plaintiff on 15-7-1976 against the defendants for possession of the plaint schedule property or the value of the same i.e, Rs. 20,000/-, for past profits of Rs. 1800/-, and for future profits till the date of delivery of the plaint schedule property, with interest at Rs. 6% and costs. The plaint schedule property is Swarajya Lakshmi and spare kit and equipment specified in the schedule attached to the plaint.
4. On a joint memo filed by the parties on both sides, O.S.No. 43 and 46 of 1978 were clubbed with O.S.No. 65 of 1976 and evidence was recorded in O.S.No. 65 of 1976 and they were all disposed of by the learned Subordinate Judge at Kovvur by a common judgment dated 26-8-1982. The learned Subordinate Judge decreed O.S.No. 65 of 1976 to the extent of directing the defendants (i) to deliver the suit launch with all its parts in good working condition to the plaintiff or to pay her a sum of Rs. 20,000/- towards its value, (ii) to pay to the plaintiff at the rate of Rs. 350/- per month from the date of the suit till the date of delivery of the suit launch or till the date of payment of its value towards damages or profits, and (iii) proportionate costs of the suit, arid rejected the claim of the plaintiff for past profits without costs. The learned Subordinate Judge decreed O.S.No. 43 of 1978 directing the plaintiff (i.e., defendant in O.S.No. 43 of 1978) to refund Rs. 1000/- to the 1st defendant (i.e., plaintiff in O.S.No. 43 of 1978) after delivery of the suit launch to her or after payment of its value as decreed in O.S.No. 65 of 1976. The plaintiff did not prefer any appeal against the decree and judgment in the said O.S.No. 43 of 1978 and the conditional decree had become final. The learned Subordinate Judge dismissed O.S.No. 46 of 1978.
5. In the plaint in O.S.No. 159 of 1976 which was subsequently re-numbered as O.S.No. 46 of 1978 as already stated above, the plaintiff took the definite plea that "the 1st defendant did not deliver the launch immediately after 30-7-1975 and continued to ply as usual and has been getting huge profits causing loss to the plaintiff and that as per the default cause (i.e, in Ex.A-1 rental agreement) the 1st defendant was liable to pay Rs. 600/- per month i.e., at Rs. 20/- per day up-till the date of the said suit as damages for the illegal profit he made and loss caused to the plaintiff and that in fact the 1st defendanthad been making more profits than the stipulated amounts. It was also pleaded that the 1st defendant removed the engine and the parts i.e., gear box, pistons, liners etc., of the plaintiff's launch and got them fixed to his launch Vijaya Sri and was plying his own launch and kept the launch body of the plaintiff's launch at Dowlishwaram and that the plaintiff came to know about the same 'recently'. The plaintiff also reserved her right to recover the launch and its engine parts etc., in its original condition and also for the claim of damages if any, in that regard by an appropriate action against the defendants. As already stated above, this suit was filed on 3-4-1976 and O.S.No. 65 of 1976 was subsequently filed on 15-7-1976 after the 1st defendant filed on 19-4-1976 his suit O.S.No. 214 of 1976 which was re-numbered as Q.S.No. 43 of 1978. It has to be noticed that in the plaint in O.S.No. 65 of 1976 the plaintiff has not taken the plea that the 1st defendant continued to ply the launch after 30-7-1975 and that he had been getting huge profits causing loss to the plaintiff- there is not even a plea that the 1st defendant plied the launch after April 1975. Apart from the other common pleas, the additional pleas taken by the plaintiff in this suit are that the 1st defendant was bent upon removing some of the parts of the plaintiff's launch and was trying to misappropriate the plaint schedule property, and that the launch body and other parts were damaged by the 1st defendant, and that the 1st defendant was bound under the contract to deliver back the schedule property at Polavaram Revu in good running condition i.e., in its original condition.
6. The 1st defendant admits that the plaintiff is the owner of the suit launch and that he had taken it on rent for one year from 1-8-1974 at Rs. 350/- per month under Ex.A-1. His case is that he could not ply the suit launch after April, 1975 because it was covered by the requisite licence only upto 30-4-1975. The said licence had to be renewed by the Executive Engineer, Dowlaishwaram by surrendering the launch before the Boat Office of the Executive Engineer, Head Works Division at Dowlaish waram for the purpose of inspection and renewal of the licence. He informed the same to the plaintiff and her husband and he was asked by them to take the suit launch to the Boat Office and he was informed that the husband of the plaintiff would submit the licence for renewal for the year 1975-76 after the payment of the licence fee. Accordingly, he took the suit launch to the Boat Office at Dowlaishwaram and tied it there on 1-5-1975. But the plaintiff's husband gave a representation in writing to the Executive Engineer, Dowlaishwaram Head works that the licence of the suit launch should not be renewed until he intimated further. According to the 1st defendant, the Executive Engineer intimated the Board Superintendent to find out if the suit launch was plying, and under the directions of the latter the checking Inspector checked the launch which was tied at the Boat Office. Thus as regards the handing over the possession of the launch, etc., his case is: "the launch body together with the parts as handed over to the 1st defendant on 1-8-1974 was tied at the Boat Office on 1-5-1975 itself for inspection and renewal of licence": He pleads that the plaintiff's husband appointed one Mylapalli Appa Rao as watchman on a salary of Rs. 55/- plus Rs. 60/- as D.A per month so that the launch and its parts were safe and thus the plaintiff had been in1, possession of the launch from 1-5-1975 although there was no technical delivery: by him. His plea is that it was under these circumstances that he could not ply the suit launch after 30-4-1975 because of the breach committed by the plaintiff in not getting the licence renewed/ and that. therefore he was not liable to pay any rent from 1-5-1975. He further pleads that the plaintiff was bound to get the licence for the suit launch renewed and deliver the same to him to enable him to ply the launch for the unexpired period under the contract. His plea is : "though no condition is stipulated in the terms of the lease contract, it is the owner alone that has to renew the licence at his cost and meet the annual expenses of repairs before the renewal of licence" and that he was in no way responsible for the same. The licence for 1974-75 was with the plaintiff. Because of the breach committed by the plaintiff he was denied the profit of about Rs. 900/- per month which he would have otherwise gained and he could claim damages for the unexpired period of the contract. He denies having plied the launch on and from 1-5-1975 and that he had made huge profits. It is his case that he was not in possession of the launch or licence after 1-5-1975. He denies any liability for payment of damages stipulated or otherwise. He also denies that he removed any parts of the plaintiffs launch at any time. His plea is that having been in possession of the launch the plaintiff must have secreted them in order to make a cause against him. His stand is: "the plaintiff was in possession of the launch or at least deemed to be in possession of the launch" and therefore she is not entitled to file the present suit for possession of the launch. He denies that there was any dispute between him and the plaintiff and that there was any reference to elders like Vulavala Narayana Rao and K.Narayana Swamy for resolution of any dispute as regards possession f the launch and for damages.
7. On the plaintiff's side 7 witnesses were examined plaintiffs husband was examined as P.W.I. Plaintiff got herself examined in the end as P. W.7 about one year after the 1st defendant was examined in Chief and after he was crossexamined about 11 months later and after the 2nd defendant examined herself as D.W.2. P.W.2 was the attestor of Exs.A-1 and A-2. P.W.3 was the Boat Superintendent at Dowlaishwaram when he gave evidence in August, 1980. P-W.4 worked as Boat Superintendent at Dowlaishwaram from November, 1974 to February, 1977. P.W.5 was one of the 'mediators' examined. P.W.6 was the Advocate-Commissioner appointed by the learned Subordinate Judge in I.A.No. 458 of, 1976 preferred by the plaintiff, who inspected the plaintiffs launch Swarajya Lakshmi and the 1st defendant's launch Vijaya Sri on 18-7-1976 and submitted his report dated 3-9-1976 marked as Ex.A-3. Only 3 documents, Exs. A-l to A-3, were marked on the plaintiff's side. Only 2 witnesses were examined on the defendant's side i.e, the 1st and 2nd defendants as D.Ws. 1 and 2 respectively as already stated above. Exs. B-l to B-12 were marked on the defendant's side. Exs. X-l to X-5 were marked by P.W.3, the Boat Superintendent.
8. Before proceeding further, I have to state that during the pendency of these appeals the 2nd defendant died intestate on 21-10-1986 leaving - according to the 1st defendant - an unregistered will dated 10-9-1986 bequeathing her two houses to the lst defendant. By an order of this Court dated 2-7-1988 on a memo filed, the 1st defendant (1st appellant) was recorded-as the legal representative of the 2nd defendant (2nd appellant) in A.S.No. 2269 of 1982. In view of this development, the learned counsel on both sides agreed that the questions whether the 2nd defendant executed Ex. A-2 and whether the same is true and valid need not be gone into even though the learned Subordinate Judge held affirmatively on the said questions, because after the death of the 2nd defendant and in view of her will the said questions become irrelevant.
9. Two sets of the main issues were considered together by the learned Subordinate Judge in his common judgment dated 26-8-1982. One set related to the question of breach of contract and who committed the-Dreach, whether the plaintiff or the 1st defendant - and the two facets of this question are: whether the plaintiff committed breach of contract by requiring the Executive Engineer, Dhawaleswaram not to renew the licence for Swarajya Lakshmi Launch; and whether the defendant committed breach of contract and misappropriated the machinery and materials of the plaintiff's launch. The other set related to the question of possession of the launch Swarajya Lakshmi - one aspect of this question is whether the 1st defendant had delivered the suit launch to the plaintiff, and the other aspect of it is whether the plaintiff got possession of the launch from 1-5-1975 and if not whether she is not entitled to possession of the suit launch or its value.
10. The learned Subordinate Judge has found that under the Canals and Public Ferries Act, 1890 every owner shall obtain licence to ply the launch in the river - river Godavari in the present case - and that the licence commences from 1st May of the year and expires by 30th April of the succeeding year and that no launch can be plied in the river without renewing the licence and that the licence will be renewed by the Executive Engineer, P.W.D., Godavari Head Works Division at Dhawaleswaram after inspection of the launch by the Boat Superintendent on payment of necessary licence fee. Ex. A-l is silent as to who had to pay the licence fee to the suit launch from 1-5-1975 in order to ply it in the river Godavari with a valid licence. However, relying on the admission of D.W.I that he took the suit launch under rental agreement for two years prior to Ex. A-l and plied it, and on the basis of Exs. X-l and X-2 challans dt.30-4-1973 for the years 1973-74 and dated 274-1974 for the years 1974-75 respectively, the learned Subordinate Judge held that from the past conduct of the parties, it was clear that it was for the 1st defendant to pay the necessary licence fee and submit an application signed by the plaintiff for obtaining licence to ply the launch during the year 1975-76. He also held that D.W.I failed to pay the licence fee payable by 1-5-1975 to obtain licence for the years 1975-76 to the suit launch as usual, and that there was no evidence that he asked the plaintiff to sign any application for renewal of the licence after paying the necessary amount to obtain renewal of the licence, and that he simply kept quite without remitting the necessary amount to obtain renewal of licence. He also found that P.W.I, the plaintiff's husband,sentEx.B-l letter dated 26-4-1975 to the Executive Engineer, P.W.D., Godavari Head Works Division, dhawaleswaram requesting him not to give any temporary licence to the suit launch as D.W.I was responsible for carrying out all the repairs to the launch as per the agreement. Ex.B-1 was signed by the plaintiff and it was received by post by the concerned Executive Engineer on 29-4-1975. On Ex.B/-l there is a noting marked as Ex.B-4 to the effect that no temporary permission would be granted as requested by the owner and that the division was in no/way concerned with the lease contracts. The learned Subordinate Judge observed: "we do not know what prompted the plaintiff or her husband to send Ex.B-1 letter to the licencing authority not to grant any temporary licence" and without further enquiring into the question as to" how Ex.B-1 came to be issued, held that under Ex.A-1 by 1-5-1975 there was only 3 months period for the 1st defendant to ply the suit launch, and that there was no legal obligation on the part of the 1st defendant to obtain annual licence when he was entitled to ply the launch only for 3 months, but that he never tried to obtain either temporary licence or annual licence by paying the necessary fee as was being done previously. The learned Subordinate Judge also remarked that there Was no evidence to show that he effected necessary repairs to the suit launch and produced it before the Boat Superintendent as claimed by him and forthishereliesontheevidenceofP.Ws.3and 4. The learned Subordinate Judge also held that in view of Exs. B-l and B-4 the 1st defendant could not have obtained any temporary licence for the 3 months period, and that the plaintiff and her husband were also riot willing to obtain temporary licence for the unexpired portion of the lease period, and that thus from the conduct of both the parties both were blame worthy.
11. On the question of delivery of the launch to the plaintiff, the learned Subordinate Judge held that it was impossible to believe that D.W.I delivered the launch either to the plaintiff or her husband with all its parts in good working condition as stipulated in Ex.A-1. He also held that the watchman Mylapalli Appanna, who was working as watchman previously, might have been continued to watch the launch even subsequent to the dispute between the parties as there was no scope to ply the launch without a licence and that "we cannot presume or infer from the evidence on record that Mylapalli Appanna was appointed by P.W.I or the plaintiff". His conclusion on the question whether the 1st defendant handed over possession to the plaintiff is that the 1st defendant kept the launch in Dowlaishwaram shore and left it to the mercy of the watchman Mylapally Appanna and that he failed to deliver the launch to the plaintiff though there was a legal obligation on his part to deliver the launch to her with all its parts in good working condition and that he could not legally avoid this contractual obligation by simply abandoning the contract and the suit launch. The learned Subordinate Judge also held that though there was no evidence, that the 1st defendant misappropriated any parts of the suit launch, it was clear from the report of the Commissioner P.W.6 that some parts of the suit launch were, missing and that some parts got damaged. In the result, he directed the 1st defendant to deliver possession of the suit launch to the plaintiff or to pay a sum of Rs. 20,000/- towards its value and also at the rate of Rs. 350/- per month from the date of the suit till the delivery of the suit launch or payment of Rs. 20,000/- towards damages or profits.
12. Mr. N.V. Suryanarayana Murthy appearing for the appellants in A.S.No. 2269 of 1982 i.e., the defendants in the suit, submits that the learned Subordinate Judge, ought to have dismissed O.S.No. 65 of 1976 also. He contends that the learned Subordinate Judge was not right in holding that the 1st defendant committed breach of the hire agreement under Ex.A-1. Admittedly rent was paid upto and including. April, 1975 and only 3 months of the hire agreement remained i.e., May, June and July, 1975. He submits that under the circumstances, there was no good reason whatsoever for requiring the 1st defendant to take licence for the full year even assuming that he was required to take the licence. No explanation whatsoever was given for P.W.I sending Ex.B-1 signed by the plaintiff to the Executive Engineer, asking him not to issue any temporary licence for the suit launch. The hire agreement under Ex.A-1 was silent as regards renewal of licence and did not stipulate that the 1st defendant should pay the licence fees. He submits that without the licence, the purpose for hiring the launch was defeated and that plaintiff alone was responsible for the licence not being renewed because she did not give any application for the renewal of the licence and she did not pay the licence fees. He contends that there is an implied reciprocal promise or obligation on the part of the plaintiff to have the licence of the suit launch renewed for the period of the said agreement because without such renewal the launch could not be plied or used by the 1st defendant for the purposes for which it was hired by him. Under the circumstances, according to him the object of hiring the launch was frustrated so far as the 1st defendant was concerned and therefore he cannot be required to pay the rent or damages after 30-4-1975. The learned counsel also submits that under Ex.A-1 the 1st defendant was required to deliver the launch at Polavaram, only after the expiry of the full period of hire i.e., after July, 1975 and not before the completion of the hire period when especially the launch could not be plied because of the non-renewal of the licence. He submits that it could not have been taken to Polavaram because there was no licence. The Learned counsel argues that under the circumstances the 1st defendant did the only thing left for him to do i.e., leaving the launch at Dowlaishwaram in the charge of the watchman Mylapally Appanna. He also points out that when D.W.I stated in his examination in chief that on 30-4-1975 he took the launch to the Boat Office at Dowlaishwaram for the purpose of renewal of its licence and that it was dry docked later by the plaintiff, the said statements were not challenged in the cross-examination. The learned counsel contends that Clause 5 of Ex.A-1 provides that the 1st defendant should bear the expenses of the establishment personnel working on the launch, without any responsibility on the plaintiff and that the learned Subordinate Judge failed to appreciate the full implications of this clause. According to the learned counsel the said Clause 5 pre-supposes that all the personnel like watchman, driver etc., of the launch were already working on the launch when it was taken on hire by the 1st defendant under Ex.A-1 and that therefore it was provided that the 1st defendant should pay them the salaries without involving the plaintiff. It therefore follows, according to the learned counsel, that the watchman Mylapally Appanna was originally appointed by the plaintiff or her husband P.W. 1 along with other personnel working on the launch; and when the launch could not be further operated by the 1st defendant after 30-4-1975 because of the non-renewal of the licence, it was but natural that he left the launch under the care of Mylapalli Appanna instructing him to report to the plaintiff. He submits that it was under these circumstances that the 1st defendant had taken the stand that it must be deemed that he delivered the launch to the plaintiff when he entrusted it to the care of the watchman Mylapalli Appanna. According to the learned counsel no other way of delivery was possible under the circumstances. He submits that the matter could be viewed also from another angle. He points out that Clause 7 of the hire agreement Ex.A-l provides that the plaintiff or her husband could take possession of the launch if there was any breach by the 1st defendant and that there was no plea taken by the plaintiff that she or her husband tried to take delivery because of the breach by the 1st defendant or that the 1st defendant prevented them from taking delivery. He also points out that no notice was got issued by the plaintiff at any time complaining that the 1st defendant did not deliver the suit launch to her, and that there was no acceptable explanation whatsoever for filing O.S.No. 159 of 1976 before the learned District Munsif on 3-4-1976 only for the rent for 3 months taking a positive stand that the 1st defendant was running the launch even after the expiry of the period of the hire agreement making huge profits and then giving up this plea and filing the second suit O.S.No. 65 of 1976. He also wants the necessary inferences to be drawn from the fact that the plaintiff suppressed Ex.B-1 in both the suits and also the non-renewal of the licence after April, 1975. The learned Counsel also tried to rely on the written statement filed by the plaintiff in the 1st defendant's suit O.S.No. 43 of 1978 on the file of the learned Subordinate Judge (earlier as O.S.No. 214 of 1976 on the file of the learned District Munsif, Kovvur) on the basis that the suit was clubbed along with the present two suits. But I did hot allow him to refer to the same as no appeal was preferred against the judgment in the said suit and the said written statement or any portion of it was not marked as an exhibit or put to any witness.
13. On the other hand, Mr. C.V.N. Sastry, the learned counsel appearing for the respondent in A.S.No. 2269 of 1982 i.e., plaintiff in both the suits, contends that the hire agreement under Ex.A-1 is a species of contract of bailment relying on the decision of the Supreme Court in D.V. Corporation v. State of Bihar, and that under Section 151 of the Contract Act the 1st defendant as a bailee had to take proper care of the launch, so long as it was in his custody, and that under Section 160 of that Act it was/his duty to return the launch without demand as soon as the time for which it was bailed, expired or the purpose for which it was bailed was accomplished, and that under Section 161 of that Act if the committed default and did not return the launch he would be responsible for its loss, destruction deterioration. He con tends \that under the circumstances it was the clear duty of the 1st defendant to return the launch whether the plaintiff demanded for its return or not. According to him, the launch could not have been left at Dowlaishwaram when under Clause 11 of Ex.A-1 the 1st defendant was required to hand back the launch at Folavaram in its original condition after. trial and take a receipt for the same. According to him, the burden of proving that the launch was handed over to the plaintiff is on the defendant he being the bailee, and that fact being in his special knowledge - the 1st defendant had to explain how he delivered back the launch to the plaintiff, and if he really left it at Dowlaishwaram Office it was dereliction of duty. He points out that it was not the case of the 1st defendant that he made any application for renewal of the licence or gave any notice to the plaintiff for renewal of the licence. He contends that the 1st defendant was the hirer of the suit launch for the earlier two years also and that the evidence on record established that he paid the licence fee for annual licences and obtained the renewal applications from the plaintiff and himself submitted the challans along with the applications to the authorities concerned and obtained renewal of licence and that even though Ex.A-1 did not mention anything about the renewal of licence, it must be construed from the past conduct that it was for the 1st defendant to pay the licence fees and obtain the application for renewal from the plaintiff and submit the same to the authorities concerned; having failed to do so the lst defendant cannot complain about the non-renewal of the licence. Mr. C.V.N. Sastry also submits that P.W.I did not request the authorities not to renew the licence but only that no temporary licence should be given and that licence should be renewed after the lst defendant got the launch repaired as required under the hire agreement. He also points out that the evidence does not disclose that the 1st defendant made any attempt to obtain any renewal of the licence for the suit launch. He also contends that there is no substance in the argument of the learned counsel for the 1st defendant that the hire agreement was frustrated by the non-renewal of the licence and that the doctrine of frustration is not a attracted to the facts of the present case because frustration, if any, was self induced. Relying on Clause 6 of Ex.A-1 he contends that the 1st defendant had to pay the licence fees and that in fact he had been paying the licence fees in the earlier two years when he had taken the suit launch on hire. He submits that the expression 'rusum' in Clause 6 includes licence fees as well and that there was an obligation on the part of the 1st defendant to pay the licence fees under the said Clause. He submits that in view of this position, the learned Subordinate Judge erred in holding that there was default on the part of the plaintiff also in sending Ex.B-1 to the authorities concerned and that he ought to have held that the 1st defendant was liable to pay the rent for the 3 months May, June and July 1975 and he ought to have decreed in O.S.No. 46 of 1978 (O.S.No. 159 of 1976 on the file of the learned District Munsif, Kovvur). The learned counsel submits that Tr.A.S.No. 1653 of 1984 should be allowed decreeing the said O.S.No.46 of 1978 and that no grounds we been made out for allowing A.S.No. 2269 of 1982.
14. The learned counsel for the 1st defendant on the other hand, argues that a reading of Clause 6 of Ex.A-1 clearly establishes that it did not impose any obligation on the 1st defendant to pay the licence fees and that the expression 'rusum' in the said clause has to be understood in the context in which it is used i.e., "if the Government imposes any penalties or additional 'rusums' all those will have to be borne by the second party (1st defendant) without reference to the first party (the plaintiff)". He relies on Venkataramaiya's Law Lexicon (2nd Edition, Volume-Ill) wherein referring to the decision of the High Court in Province of Madras v. Firm of Kanigolla Sivalakshminarayana, AIR 1949 Mad. 843 the meaning of the Urdu word 'rusum' is given as custom, settled mode or fees, duties, taxes etc., and submits that the said Clause 6 only imposed a obligation on the 1st defendant to pay penalties and additional taxes that may be imposed, by the Government and that cannot be read as referring to licence fee for renewal of the licence because that is neither a penalty nor an additional tax. He therefore submits that no case has been made out for allowing Tr.A.S.No. 1653 of 1984.
15. There is no dispute that the suit launch Swarajyalakshmi was a motor launch and that it was hired by the 1st defendant under Ex.A-1 for the period 1st August, 1974 to 30th July, 1975 and that the 1st defendant paid the rents due for the said hire to the plaintiff up to the end of April 1975. Only three months of the lease period remained thereafter i.e., May, June and July of the year 1975. There is also no dispute - and Ex.A-1 makes this explicit - that the purpose for which the suit launch was hired was to ply it for carriage of men and goods and that licence was necessary for plying it in river Godavari because it was attracted by the provisions of the Andhra Pradesh (Andhra Area) Canals and Public Ferries Act, 1890 and the Rules made under Section 16 of that Act (hereinafter referred to as 'the Rules') in force during the relevant period. Mr.N.V.Suryanarayana Murthy has taken me through the relevant Rules. Rule 6 of the Rules deals with grant of licences in respect of motor vessels plying in river Godavari, among others. It provides that only annual licence shall be granted. It also provides that annual inspection of the hull and machinery and certificates of syrangs etc., of all such vessels shall be made in the case of river Godavari by the Executive Engineer, Godavari Head Works Division or under his general direction by the Junior Superintendent of the Public Works Workshops, Dowlaishwaram. For that purpose the said Rule requires that the owner should bring the vessel on such date and to such place as may be fixed by the Executive Engineer and shall make such preparations for the examination as the Executive Engineer may direct. Rule 10 of the Rules provides that every licence for one year shall remain in force until the 30th April following the date of issue unless it is cancelled or suspended. Under Rule 4 of the Rules, the suit launch had to be licenced for plying in river Godavari. It is also not in dispute that the suit launch was covered by licence upto 30th April 1975 and that its licence was not renewed for the year commencing from 1-5-1975 and that therefore the suit launch could not be plied or operated without violating the provisions of the 1890 Act and the Rules. Therefore, without the licence the 1st defendant was disabled from plying and operating the launch from 1-5-1975. In the background of these admitted facts, the facts asserted by the plaintiff and the 1st defendant have to be examined for the purpose of ascertaining the truth of the matter to the extent it is possible on the basis of the evidence on record.
16. The first aspect that has to be noticed is that the plaintiff came forward with a case in her earlier suit O.S.No. 159 of 1976 (subsequently O.S.No. 46 of 1978 before the learned Subordinate Judge) that the 1st defendant even after. 30-7-1975 continued to ply as usual and was getting huge profits causing loss to her. It has to be noticed that the plea of the plaintiff in this suit is not merely that the 1st defendant operated the suit launch after 30-4-1975 but also after 30-7-1975. But the plaintiff and her husband P.W.I knew that the licence of the suit launch expired on 30-4-1975 and was not renewed for the subsequent year and that therefore the 1st defendant could not have done any launch business carrying passengers and transporting goods after 30-4-1975. Therefore the plea of the plaintiff that the 1st defendant continued to ply the suit launch as usual not merely after 30-4-1975 but also after 30-7-1975 and had been getting huge profits is false to the knowledge of the plaintiff and P.W.I. This is virtually admitted by the plaintiff because she did not take this plea in the later suit O.S.No. 65 of 1976. No evidence whatsoever was adduced in this regard. Neither P.W.I nor P.W.7 speak anything about the 1st defendant running the launch after 30-4-1975. The learned Subordinate Judge also held :
"It is alleged in the plaint that D.W.I earned profits by running the launch during the relevant period. I do not think that the plaintiff is entitled to claim any rent after 30-7-1975 as the suit launch was not run by D.W.I for want of valid licence from 1-5-1975 onwards as per the terms of the contract".
The learned counsel for the plaintiff did not question this finding of the learned Subordinate Judge i.e., that the 1st defendant did not run the suit launch from 1-5-1975. Therefore, there is no question of the 1st defendant earning profit after 30-4-1975. Thus to this extent the plaintiff had come with a false case.
17. The second aspect to be noticed is that the plaintiff came forward with a plea in both the suits that some time after 30-7-1975 the 1st defendant removed the parts of the suit launch Swarajya Lakshmi and fitted them in his launch Vijaya Sri. In paragraph 8 of the plaint of the first suit, it is stated as follows:-
" More over the first defendant high-handedly and illegally with a view to cause wrong loss to the plaintiff and to gain wrongfully removed the engine parts i.e.,gear box, pistons, liners etc., of the plaintiff from the plaintiff's launch and got them fitted to his launch body by name Vijaya Sri.......................and the 1st defendant is plying his own launch and kept the launch body of the plaintiff at Dowlaishwaram. The plaintiff came to know about this recently and got the first defendant disputed by her husband before mediators Sri Vulavala Narayanarao and Sri Konatala Narayanaswamy for giving back the launch with all its engine parts etc., in tact and also to pay the rent and damages due to the plaintiff. The defendants agreed to do as advised by the mediators but till now they have not done anything".
This was repeated more or less verbatimin the plaint in the later suit, except that in the earlier suit it was added that the plaintiff was reserving her right to recover her launch and the engine parts etc., in its original condition and also for the claim of damages, if any, in that regard by appropriate action against the defendant. It is important to note the exact pleading in this regard because it is very revealing and also describes the various parts alleged to have been removed by the 1st defendant and the mediation that took place thereafter. In his written statement in both the suits, the lst defendant denied that he removed any parts of the plaintiff's launch at any time and added "having been in possession of the launch, the plaintiff must have secreted them, in order to make a cause against this defendant". He also asserted that the plaintiff was in possession of the launch since 1-5-1975. Having made such a categorical allegation against the 1st defendant as regards removal of the parts of the launch, the plaintiff did not adduce any evidence in that regard. Even though she got herself examined as P.W.7 after closing the evidence on her side and after the evidence on the defendant's side was also close, in her examination in chief, she did not say anything in this regard. She admitted that P.W.I was looking after her affairs. The only other witness on the plaintiffs side who spoke on these aspects was her husband, P.W.I. In his examination in chief he states:
"D-1 removed the parts of our launch and put them on his launch by name Vijaya Sri and was plying the same. He kept our launch near the shore without plying. He kept a Watchman there.
About 4 or 5 months later, I learnt my launch was kept idle and so raised a dispute in the presence of Sri Konatala Narayanaswamy, Vulavala Narayana Rao the Sarpanch. When they asked he requested time for payment of rent."
However, in his cross-examination he admits:
"I got it mentioned in the plaint about missing of parts in my launch on the information provided by others. I cannot give their names as they are numerous in number.
I cannot tell the date and month when they informed me."
He further states:
"The drivers of some launches told me the samans of my launch were shifted and fitted to his own launch by D-l. I cannot now tell the names of those drivers........I did, not verify the statements of these drivers personally by going to the launch.........It is not true to say from 30-4-1975 the launch is in my custody that I kept M.Apparao as Watchman. By 30th April of every year all the boats shall be dry docked for inspection. I did not verify whether-my boat was dry docked by D-l by 30-4-1975."
He also admits that he did not give the details of the parts missing or suspected to be missing in his affidavit accompanying the petition for appointment of the Commissioner (I.A. No. 458 of 1976). The Advocate-Commissioner appointed by the Sub-Court in I.A.No. 458 of 1976 was not examined in Chief as regards the missing parts. In his cross-examination he states that the watchman,kept some parts in his house oiled and for safety and that the engine of the launch contained its number and its horse power.But he did not note the number of the engine. He states that he took the plaint copy with him but did not verify whether any parts of Swarajya Lakshrrii were fixed to Vijaya Sri of the 1st defendant. But it has to be noticed that the Commissioner inspected the two launches on 18-7-1976 i.e., more than an year after 30-4-1975. Thus the plaintiff has not adduced any evidence whatsoever except the hearsay evidence of P.W.I i.e., her husband which is very vague and half hearted in support of her case that the 1st defendant removed the parts of her launch and fitted them to his own launch. The learned Subordinate Judge does not discuss the evidence on the question whether the plaintiff has established her case as regards the allegation against the 1st defendant that he removed the parts of the suit launch and fitted them to his own launch Vijaya Sri. But in one sentence he concludes as follows:-
"Though there is no evidence that the (D.W.I) misappropriated any parts of the suit launch, it is clear from the report of the learned Commissioner (P.W.6) that some parts of the suit launch are missing and that some parts got damaged."
Relying on the Commissioner's report Ex.A-3 dated 3-9-1976, the learned Subordinate Judge observes :
"The Commissioner also found some gear box parts, reduction gear box, automisers and ply wheel wrench missing. He also found rear down portions and wooden edges of the launch spoiled due to rust. He found that the suit launch required repairs. It is thus clear that the suit launch was found in Dowlaishwaram shore with some parts missing and with some parts damaged, in the custody of Mylapalli Appanna."
But, as observed by me earlier, the Commissioner inspected the suit launch only on 18-7-1976 as per his report Ex.A-3, and therefore what he stated cannot relate to the condition of the launch on 30-4-1975 or 31-7-1975. More over there is nothing in the report Ex.A-3 that any of the parts of the suit launch were found fitted to the 1st defendant's launch Vijaya Sri. It has also to be noticed in this connection that it was the case of the plaintiff in the first suit that the 1st defendant was running the suit launch not merely after 30-4-1975 but also after 30-7-1975. Therefore if any engine parts like gear box, pistons, liners etc., were removed, it would have been only some time after 30-6-1975 if the plaintiff and P.W.I are to be believed. That again is dependant on the.question who was in possession of the suit launch after 30-4-1975 - that is to say, who was speaking the truth about the possession of the suit launch after 30-4-1975. However, the fact remains that the plaintiff has not been able to establish the truth of her allegation that the 1st defendant removed the parts of the suit launch and fitted them to his own launch. Another fact which improbablises the case of the plaintiff is that Ex.X-5 shows that the 1st defendant got the licence of his launch Vijaya Sri renewed for the year 1975-76 on 7-6-1975 which means that his launch was inspected and found to be in a fit condition to ply and that it was not grounded or being repaired in June, 1975.
18. The third aspect to be noticed is that the plaintiff has not been able to establish her version as regards mediation by Vulavala Narayana Rao and K.Narayana Swamy. Her versio bristles with contradictions. In paragraph 8 of her plaint in the first suit dateci3-4-1976 (O.S.No. 159 of 1976) after stating that the 1st defendant removed the engine parts i.e., gear box, pistons, liners etc., of the suit launch and that the 1st defendant was plying his own launch and kept the launch body of the plaintiff at Dowlaishwaram, it is added :
"The plaintiff came to know about this recently and got the first defendant disputed by her husband before mediators Sri Vulavala Narayanarao and Sri Konatala Narayanaswamy for giving back the launch with all its engine parts etc., in tact and also to pay the rent and damages due to the plaintiff. The defendants agreed to do as advised by the mediators but till now they have not done anything."
The same thing was virtually repeated in paragraph 8 of her plaint dt.14-7-1976 in her latter suit (O.S.No. 65 of 1976). The husband of the plaintiff in his evidence as P.W.I stated in his examination in chief that about 4 or 5 months later, he learnt that his launch was kept idle and so raised a dispute in the presence of K.Narayana Swamy and Vulavala Narayana Rao the Sapranch and that when they asked he, the 1st defendant, requested time for payment of rent. About 4 or 5 months later, here means presumably 4 or 5 months from 1st May, 1975 because in the earlier portion of the examination in Chief, he was stating that the 1st defendant did not pay the rent from 1st May, 1975 and that he was asking the 1st defendant repeatedly for the rents due for which the lst Mefendant said that he would get the launch repaired and get the licence renewed before payment of rent to him. In cross-examination, P.W.I stated that he would be examining both Konatala Narayanaswamy and Vulavala Narayana Rao but as it happened, he examined only Vulavala Narayana Rao as P.W.5. P.W.I also stated in his cross-examination as follows:-
"Iraised dispute before mediators about one month before this suit. is filed. The mediator Narayanaswamy told me that he asked.D-1. He told me that D-l has no money at that time, that D-l told him he will get the boat repaired in one or two months for obtaining licences. I did not agree for it. No third party was present when K.Narayanaswamy told the above. The plaintiff was present at my house at that time. Sometime later when I was at the house of V. Narayana I saw D-l going on the road. I asked V. Narayana to call D-l and ask him about my boat. V.Narayana called D-l and asked D-l said he cannot get money in one or two months and asked me to wait to clear of my claims. We did not ask him to execute any document to that effect at that time. I am not examining V. Narayana. I am examining K.Narayanaswamy in this suit."
19. Thus, the version of P.W.I as regards the mediation was that one month prior to the filing of O.S.No.65 of 1976 i.e., about one month prior to 14-7-1976, he raised the dispute before the mediators. Each mediator was asked separately. So far as V. Narayana is concerned, the sort of mediation that took place was that when he (P.W.I) was at the house of V. Narayana, he saw the 1st defendant going on the road .and got him called by V. Narayana for asking about the suit launch. As per the evidence of P.W.I the only talk through the mediators was about the money due from the 1st defendant for which he wanted time to pay. Though it was stated that the 1st defendant said he would get the launch repaired, nothing was said about the removal of the parts from the suit launch and getting them fitted to the 1st defendant's launch. Vulavala Narayana Rao in his evidence as P.W.5 states in his examination in chief:
"Defendant took the launch of the plaintiff on hire in the year 1976. There were disputes between them which were referred to me for deciding. It was in Tune. 1976. The dispute is raised by P.W.I saying the rent was not paid by defendant and did not get the launch repaired. When I asked the 1st defendant he said he cannot get it repaired as he has no money. I asked him to pay the arrears of rent. D-l said he cannot pay the arrears of rent also because the launch is not plying due to the petition sent by P.W.I against him to Boat authorities.
Then I advised P:W.1 to do what he likes."
In his cross-examination, he states that the 1st defendant told him that the launch was at the Boat Office and that P.W.I appointed a Watchman for the launch also and that the licence was not renewed due to the petition filed by P.W1 against him. P.W.5 also does not say anything about the removal of the parts of the suit launch by the 1st defendant and fitting the same to his own launch. But what is relevant is that he states that he undertook the mediation sometime in June, 1976 and supports the version of P.W.I in this regard that the mediation took place about a month before Q.S.No.65 of 1976 was filed. If that were so, the plaintiff could not have stated anything about the mediation by Vulavala Narayana Rao and K. Narayanaswamy in the plaint of the first suit dated 3-4-1976. P.W.7 does not mention anything about the mediation. Thus, the evidence led on behalf of the plaintiff as regards mediation also does not support her case that the 1st defendant removed the parts from the suit launch and got them fitted to his own launch. The evidence led is not definite and indicates in a positive manner only to the extent of broaching the subject of payment of amounts due to the plaintiff by the 1st defendant -1 am of the view that the evidence of P.W.I is not reliable as regards what he said about the mediation by K. Narayanaswami. P.W.I in his examination in chief said that he would examine both the mediators and only mentioned that when they asked the 1st defendant he requested time for payment of rent. In his crossexamination he stated that he would be examining K. Narayanaswami and narrated what K. Narayanaswami told him about what the 1st defendant said which is hearsay evidence. But as it turned out, K. Narayanaswami was not examined. What P.W.I said as regards the so called mediation by P.W.5 amounts to only a casual incident occurring When P.W.I was in the house of P.W.5 when he saw the 1st defendant going that way; according to him the 1st defendant said that he wanted one or two months to clear "my claims". It is obvious that this incident must have taken place prior to the filing of the first suit. A reading of the evidence of P.W.5 on the whole indicates, in view of what he said in his cross-examination about the 1st defendant telling him that "the launch was at the Boat Office as the licence was not renewed due to the petition filed by P.W.I against him" and that "P.W.I appointed a watchman for the launch also", that the amount claimed by P.W.I as due from the 1st defendant could only be the rent for the balance lease period during which the launch could not be plied by the 1st defendant because the licence was not renewed i.e., for the months of May, June and July, 1975. This is supported to some extent by what P.W.I said in his examination in chief: "about 4 or 5 months later, I learnt my launch was kept idle and so raised a dispute in the presence of.......".
20. On the other hand, the version of the 1st defendant in his written statements, in both the suits is that the plaintiff and her husband, in order to avoid payment of deposit amount of Rs. 1000/-, got a false petition issued to the Executive Engineer, Head Works, P.W.D, Dowlaishwaram and thereby disentitled themselves to claim any amount and that suppressing the said facts the suits were filed. As regards mediation, the 1st defendant stated in his written statements that it was false that the plaintiff came to know that he removed certain parts of the launch and that the same was disputed through Vulavala Narayana Rao and K.Narayanaswami for possession of the launch and for damages. He asserted that there was no such dispute at all and that in fact plaintiff could not have any such dispute since she was in possession of the launch. In his examination in chief, the 1st defendant stated that he asked the plaintiff to return the advance of Rs. 1,000/- if she was not willing to get the licence renewed and that she told him that P.W.I was not moving out as there was a warrant against him and that if the licence was renewed after her husband came she would give it to him and if not she would return the deposit of Rs. 1,000/-. He stated that he was not due any rent by then and that later he was not given the renewed licence and was not given possession of the launch and was not given Rs. 1,000/- deposited by him with the plaintiff. As regards the so Called mediation, he states.
"I told about this matter to one Vulavala Narayana the then Panchayat "Board President. He told me that after the warrant against P.W.I is Withdrawn and when he comes out he will see that my deposit is returned."
In the cross-examination D.W.I states :
"The plaintiff told me that her husband was engaged in Police enquiry. The plaintiff asked me to entrust the launch to the Watchman by (name) M.Appanna. There is no document to that effect. I do not know what had happened to the launch after I handed over to Appanna. The plaintiff's husband never met me. [ myself questioned him through V.Narayana. There was no reply from him.
It is not true to say that I removed some parts of the suit launch and fixed it to my launch. All the samans and parts were in the launch."
Two facts of this version which cannot be disputed are: (1) that the deposit amount of Rs. 1,000/- was retained by the plaintiff and (ii) that the licence expired by 30-4-1975 and that the suit launch did not have any licence for plying from 1-5-1975. The third fact that has to be kept in view in testing the version of the plaintiff and the version of the 1st defendant as regards mediation is that the lease itself expired by 31-7-1975 and that even if the licence was renewed, he could not have plied the suit launch from 1st August, 1975 unless a fresh lease was executed for the subsequent period. From this it follows that there could not have been any question of asking the 1st defendant to pay rent after 31-7-1975. As already found by me earlier, the plaintiff has not established that there was any mediation as regards removal of the parts of the suit launch by the 1st defendant. Therefore, it follows that the dispute, if any, that could have been raised on behalf of the plaintiff before the mediator or mediators could have been only as regards the payment of rent by the 1st defendant for the 3 months of May, June and July, 1975. The case of the plaintiff set up in the first suit that the 1st defendant plied the launch after 30-4-1975 and even after 31-7-1975 had to be given up by her in the second suit which was filed some 3 months after the first suit, it is most probable that the 1st defendant disputed his liability for paying the rents for those 3 months i.e., Rs. 1,050/- and insisted upon the repayment of his deposit of Rs. 1,000/- lying with the plaintiff. Therefore, I am inclined to believe the version of the 1st defendant as regards the subject-matter of mediation by F.W.5. As regards the mediation on the question of handing over of the launch, there is nothing definite even in the evidence of P.W.I that that question was broached before the mediators. P.W.I only states:
"The mediator Narayanaswami told me that he asked D-l. He told me that D-1 has no money at that time, that D-l told him he will get the boat repaired in one or two months for obtaining licences. I did not agree for it. No third party was present when K. Narayanaswa my told the above."
I am not inclined to give any credence to this evidence of P.W.I. Firstly, it is only hearsay evidence. Secondly, he does not state what Narayanaswamy asked the 1st defendant. Thirdly, though he stated that K. Narayanaswa my would-be examined on the plaintiff's side, he was not examined and the plaintiff, who examined herself as P.W.7 after the entire evidence was closed, did not state why K.Narayanaswami was not examined. Fourthly, if this took place one month before O.S.No. 65 of 1976 was filed, that was long after the hire period under Ex.A-1 was over on 31-7-1975 and there could have been no question of the 1st defendant obtaining licence for the suit launch. Fifthly, the evidence of P.W.I is interested evidence. He in fact deposed as the husband of the plaintiff stating that the plaintiff would not be examined. He stated in his crossexamination "1 am giving evidence on behalf of my wife. I am not examining her". His evidence in this regard is not corroborated by any other evidence on the plaintiff's side. Apart from this, the story of P. W.I proceeds on the basis that the suit launch was in the custody of the 1st defendant at the time when these two suits were filed and that the suit launch required repairs to be done by the 1st defendant. The learned Subordinate Judge did not advert to these aspects of the matter and did not examine the credibility of the evidence of P.W.I and P.W.5 and diverted himself from the issue as regards the subject-matter of mediation by P.W.5 by observing as follows:-
"If really D.W.I delivered the launch after effecting repairs he could have examined the workers that worked on the launch including Mylapalli Appanna. Except his own interested evidence nobody is examined to show that he delivered the launch after effecting necessary repairs as stipulated under Ex.A-1 rent agreement."
21. Now therefore, I will have to deal with this aspect of the matter i.e., delivery of the suit launch after effecting necessary repairs as stipulated under Ex. A-l. The first thing which has to be noticed, as is correctly pointed out by the learned counsel for the 1st defendant Mr.N.V.Suryanarayana Murthy and which was missed by the learned Subordinate Judge, is that the suit launch could not have been delivered by the 1st defendant as stipulated under Ex.A-1 because it had not licence to ply in the river Godavari after 30-4-1975. The deliveyr contemplated under Ex. A-l was on the expiry of the lease period i.e., immediately following-31st July, 1975 at Polavaram 'Revu'. Mr.C.V.N.Sastry insisted that failure to deliver the suit launch at Polavaram Revu constituted breach of Ex.A-l. I will deal a little later with his other contention that the 1st defendant could not have abandoned the suit launch at Dowlaishwaram Boat Office because as a bailee he was bound to return the suit launch to the plaintiff whether asked by her or not But it is important to notice, and it is admitted on the plaintiff's side also, that on 30-4-1975 on the expiry of the licence period, the suit launch was to be brought to the Boat Office at Dowlaishwaram for renewal of licence. It is not the contention of Mr.C.V.N.Sastry that the suit launch could have been plied even without licence by the 1st defendant. Therefore, I fail to see how the 1st defendant could have-delivered the launch at Polavaram which is not next door to Dowlaishwaram. Admittedly Ex.A-1 did not mention anything about the renewal of licence and obviously proceeded on the basis that the suit launch would have licence for the full period for which it was rented because only then the object for which it was hired out i.e., for plying and carrying persons and commodities in the river Godavari, could be fulfilled and only then it could have been plied and taken to and delivered at Polavaram Revu on the expiry of the hire period. Ex.A-1 did not provide for delivery of the suit launch at Polavaram before the hire period was over and it did not contemplate such an eventuality. In the circumstances, I am not persuaded by the contention advanced by Mr. C.V.N. Sastry that the 1st defendant committed breach of Ex.A-1 by not delivering the suit launch at Polavaram Revu to the plaintiff. When the suit launch admittedly had no licence to ply after 30-4-1975 it could have been delivered only at Dowlaishwaram Boat Office where it was brought on 30-4-1975 before the expiry of the licence period according to the 1st defendant.
22. The questions which are to be dealt with next are - was the suit launch brought to Dowlaishwaram Boat Office at the expiry of the licence period as claimed by the 1st defendant; and did it require any repairs at that time? The learned Subordinate Judge finds that mere was no evidence to show that the 1st defendant effected the necessary repairs to the suit launch and produced it before the Boat Superintendent as claimed by him. The learned Subordinate Judge further observes:
"On the other hand, it is in the evidence of P.Ws. 3 and 4 that the suit launch was not produced for inspection after paying necessary licence fee".
This is obviously with reference to the production at the time when the licence of the suit launch expired i.e., on or about 30th April; 1975. The learned Subordinate Judge fails to see that P.VV.3 was speaking only from the record because he was not the Boat Superintendent at Dowlaishwaram at the relevant time. The records with reference to which P.W.3 spoke were Exs. X-3, X-4 and X-5, which contain entries relating to the renewal of licences'of private launches for the years 1973-74,1974-75 and 1975-76 respectively. Ex.X-5 does not contain any entry relating to the suit launch obviously because admittedly its licence was not renewed for the year 1975-76. The mere bringing of a launch to the Boat Office would not be recorded in any of these exhibits produced by P.W.3. P.W.3 himself admits in his cross examination;
"I have no personal knowledge of Exs. X-3, X-4 and X-5."
He states in his examination in chief that a launch will be brought for inspection when it is made fit for plying and that the licence will be issued only when the launch is fit for plying. In his cross-examination he states:
"Unless the inspection fee is deposited and challan is filed before us we will not inspect the launch."
He finally states:
"I cannot personally say whether the launch M.L.Swarajya Laxmi was brought by D-l to the Boat Office for inspection on 30-4-1975 as I was not there at that time".
Therefore, there is nothing in the evidence of F.W.3 to establish that the 1st defendant did not take the launch to the Boat Office on or about 30th April, 1975. F.W.4 worked as Boat Superintendent at Dowlaishwaram at the relevant time. In the examination in chief, he only states that as per the Boat licence register of 1974-75 the launch Swarajya Lakshmi was not brought for inspection. He does not say anything from out of his personal knowledge. In his cross-examination he states that as he was on a different line (when he was giving evidence) he did not remember the rules relating to the issuing of licences to the launches and that he did not remember whether a copy of Ex.B-1 was received by him when he was the Boat Superintendent in 1975. But it is significant that he states in his cross-examination.
"The son-in-law of P.W.I by name one Suryanarayana was also working as Supervisor in some department. He did not work under me. He was my class-mate in L.C.E. in 1957-1960. It is not true to say due to friendship with the son-in-law of P.W.I I am deposing falsehood."
He also states that all licences of boats should be renewed by 1st May an the launches would be dry docked in the down stream from the Boat Office. Therefore, there is nothing in the evidence of P.W.4 also to establish that the 1st defendant did not bring the suit launch to the Boat Office at the relevant time. P.W.I in his examination in chief states that the 1st defendant did not pay the licence fees and did not produce the launch for inspection by the Boat Superintendent and that when he asked the 1st defendant repeatedly for the rents due, the later said: "he shall get the launch repaired and licence to be renewed before payment of rent to me". He also adds that the 1st defendant kept the suit launch near the shore without plying and he kept a watchman there. But in his cross-examination he admits:
"I am not aware whether the 1st defendant took the launch to Boat Superintendent Office, Dowlaishwaram by 30-4-1975. The application for renewal of licence shall be signed and filed by the owner of the boat.
By 1-5-75 my wife did not make any application for renewal of licence as the 1st defendant did not approach us for such application. I did not ascertain whether D-1 took the launch to the Boat Superintendent's Office by 30-4-1975.
............ ............ ............
... .....There was no renewal of licence and hence the 1st defendant could not ply the launch by paying fees and obtaining licence.
In June, 1975 my launch was not at the Boat Superintendent's Office.
............ ............ ............
......... .......... Our launch was shown to the Commissioner at Sunnapu Botti Revu about one mile to Boat Superintendent's Office.
I came to learn the launch was at that place by the date of filing the suit. It was on the shore......... ............... ............
............................. It is not rue to say that my boat was tied at Boat Superintendent's Office, that I got it to the shore, that I removed the moveables.
............ ............ ............
....... ....... It is not true to say from30-4-1975 the launch is in my custody that I kept M.Apparao as watchman. By 30th April of every year all the boats shall be dry docked for inspection. I did not verify whether my boat was dry docked by D-l by 30-4-1975."
From this evidence of P.W.I it cannot be said that the 1st defendant did not bring the suit launch to the Boat Office on 30-4-1975. P.W.7 obviously does not have any personal knowledge. Thus, there is nothing in the evidence on the side of the plaintiff to contradict the statement of the 1st defendant as D.W.I that he brought the suit launch to the Boat Office on 30-4-1975. On the other hand, the evidence on record probablishes and supports D.W.I because on the expiry of the licence the suit launch could not be plied and for renewal of its licence it had to be brought to the Boat Office. D.W.l states in the examination in chief:
"On 30-4-1975 I took the launch to Boat Office, Dowlaishwaram. On 1-5-1975 I asked the Boat Superintendent whether he received the renewal application from the owner. He told me the owner sent a letter not to renew the licence.
He asked me to send the owner. So I went to Polavaram and gave the licence to the plaintiff........... ..........".
The letter referred to by D.W.I is Ex.B-1.1 will come to it a little later. He further states in his examination in chief:
"I was no,t informed latter about the renewal of the launch of the plaintiff.
It was dry docked a later by the plaintiff.
............ ............ ............
The licence could not be renewed due to the petition sent by P.W.I. So I kept the launch at Dowlaishwaram under the custody of the Watchman by name M.Apparao, the servant of plaintiff. The Boat Office will not allow the launch outside its shore unless the licence is renewed. P.W.I was not moving out as there was a warrant againsthim. I gave the old licence to the plaintiff as the licence will not be renewed unless the application is given by the plaintiff. On 1st May, 1975 I handed over the licence to the plaintiff. .......... ...."
In the cross-examination, it was not suggested to him that he did not take the launch to the Boat Office on 30-4-1975. In his cross-examination he states:
"It is not true to say that I had to pay licence renewal fee. I got the launch repaired and took it to the Boat Office, Dowlaishwaram.......... .........
There is no document to show that I produced the launch before the Boat Office. By then I did not pay any amount. I handed over the papers to the plaintiff as licence was not granted. The plaintiff told me that her husband was engaged in police enquiry. The plaintiff asked me to entrust the launch to the Watchmanby (name) M.Appanna. ............. ............".
I do not find any reason to disbelieve this/ evidence of D.W.I when there is nothing contra which is reliable and definite and when the probabilities support him. P.W.I admits in his cross-examination that there was a cheating case reported against him in Crime No. 52/74 on the file of Koyyalagudem Police Station. Suggestions were put to him that a petition was filed against him for quarrying Degalamutu stone quarry without licence, and that he forged school certificate of his son by adding Konda Kapu, and that there wits an enquiry against him on that etc., which he denied. But P.W.5 who was the Sarpanch of Polavaram stated that there were some petitions against P.W.I saying that he was not Konda Kapu and that there was an enquiry by the Revenue Divisional Officer about one year back. Eventhough the plaintiff examined herself as P.W.7 on 25-6-1982 after D.W.I was cross-examined on 28-1-1982 and 10-6-1982, she did not deny the statement of D.W.I that she told him that her husband was engaged in police enquiry and that he was not moving out as there was a warrant against him. Therefore, under the circumstances, the 1st defendant could not have handed over the suit launch to P.W.I at Dowlaishwaram. He could not have handed it over to the plaintiff because she admits that P.W.I was looking after her affairs and it is not her case that she could have gone to Dowlaishwaram and taken possession of the suit launch. The learned Subordinate Judge missed this aspect of the matter and got himself tied up in the supposed contradictions in the version of the 1st defendant as regards his handing over possession of the suit launch to the plaintiff. The learned Subordinate Judge failed to see that O.S.No. 65 of 1976 is not a suit for damages for breach of contract but is a suit for possession of the suit launch or for the value of the same and therefore one of the questions would inevitably be whether the plaintiff did not have the possession of the suit launch already after 30-4-1975 and by the time the suits were filed.
23. Before proceeding further, I will have to deal with another important ana crucial aspect of the case, and that is Ex.B-1. Plaintiff as P.W.7 admits that Ex.B-l bears her signature but states that she does not know why it was sent by her husband. Her husband P.W.I in his examination in chief states that it is not true to say that he sent a petition to the Executive Engineer to refuse renewal of the licence to the launch. The 1st defendant had to summon Ex.B-1. When put to PWl in his cross-examination, he admits that he wrote it in his own handwriting and that it was signed by the plaintiff. He also states that he learnt that in June, 1975 it was forwarded to the Boat Superintendent by the Executive Engineer and he admits that there was no renewal of the licence and hence the lst defendant could not ply the launch by paying fees and obtaining licence. He does not come forward with any reason whatsoever for sending Ex.B-1. The learned Subordinate Judge only remarks: "We do not know what prompted the plaintiff or her husband to send Ex.B-1 letter to the licensing authority not to grant any temporary licence". Ex.B-1 is dated 26-4-1975. It shows that a copy of the same was sent to the Boat Superintendent, P.W.D.,Dowlaishwaram.Itreads as follows:-
"I am the registered owner of Sri Swarajya Lakshmi Motor Launch. And the Launch was given on rent system to Sri Konala Subba Rao/of Polavaram W.G. The lease period is ending in the month of September, 1975 with stipulated agreement conditions along with all liabilities (i.e.,) Licence and repairs etc. In the agreement clause No. 4 the renter (Contractor) is responsible for doing all repairs of the Vessel and Engine. And renter may be responsible to Dry Dock the Vessel on 1-5-1975 and do repairs: as for the agreement condition. After the necessary repairs may be done by the contractor, and he will pay the licence fees etc., then the department may issue the annual licence to the said launch.
I request you, under the above circumstances you do not give any temporary licence to said Motor Launch."
It has to be noted here that the hire agreement under Ex.A-1 was only upto 317-1975 and not upto the end of September, 1975 as stated in Ex.B-1. It is significant that it states that only after the necessary repairs were done by the Contractor i.e., the 1st defendant, and he pays the licence fees then the department may issue annual licence to the suit launch. There is no evidence adduced on the plaintiff's side to establish that the suit launch required repairs on 30-4-1975. There is nothing in the evidence of P.W. 1 which positively states that the suit launch required repairs for renewal of licence after 30-4-1975. There is no pleading even by the plaintiff in both her suits, that the suit launch required repairs at the time of renewal of licence after 30-4-1975. In fact, it is not the case of any one that the suit launch was not plying prior to 30-4-1975 and that it was in disrepair then. In the circumstances, it is inexplicable why Ex.B-1 was addressed to the authorities concerned. There is no mention of Ex.B-1 in the plaints in both the suits of the plaintiff. One may even say that it was suppressed because a contrary impression was sought to be given by the plaintiff by taking the plea in the first suit that the 1st defendant was running the suit launch after 30-4-1975 and even after 31-7-1975. This circumstance has to be taken in conjunction with the fact revealed by P.W.4 who was the Boat Superintendent at Dowlaishwaram at the relevant time, that the son-in-law of P.W.I was also working as Supervisor and that he was his class-mate in L.C.E in 1957-60 which was not denied by the plaintiff as P.W.7 when examined at the end. In his crossexamination, P.W.4 states that he does not remember whether a copy of Ex.B-1 was received by him - he does not deny having received it When Ex.B-1 shows that a copy of it was sent directly to the.'Boat Superintendent at Dow laishwaram, there is no reason to assume that P.W.4 did not receive it. Reading the fact that the son-in-law of P. W. 1 was a class-mate of P.W.4 together with the fact that a copy of Ex.B-1 was sent to P.W.4 by P.W.I and the fact that P.W.4 was the authority to renew the licence for the suit launch, I am inclined to believe D.W.I when he states :
"On 1-5-1975 I asked the Boat Superintendent whether he received the renewal application from the owner. He told me the owner sent a letter not to renew the licence."
and that therefore he went to the plaintiff and returned the old licence to her saying that if she was not willing to get the licence renewed, she should payback is advance of Rs. 1,000/- with her. In this connection, it has to be kept in view also that it is not the case of the plaintiff that a copy of Ex.B-1 was sent to or given to the 1st defendant; therefore he would not have known the exact contents of Ex.B-1 at that time. In as much as the plaintiff has not come forward fairly and openly as to why Ex.B-1 was signed by her and was sent by her husband to the authorities concerned, the blame will have to be squarely on the plaintiff on the facts and circumstances of the present case for the licence of the suit launch not being renewed. Inasmuch as it is admitted on the plaintiff's side that the suit launch was hired by the 1st defendant for the purpose of plying the same for carrying men and material, I am inclined to take the view that an implied term has to be read into the hire agreement Ex.A-1 that the plaintiff will not do anything that would obstruct or prevent or delay the extension of the licence of the suit launch, thereby disabling the 1st defendant from plying it for the rest of the hire period. In this context the question as to who should pay the licence fee of Rs. 100/- pales into insignificance because it is not the case of the plaintiff that she signed the application for renewal and gave it to the 1st defendant and because it is not in dispute that without her application as owner, the licence of the suit launch could not have been renewed. In the circumstances, I am inclined to hod that for some reasons which the plaintiff and her husband did not prefer to disclose, they did not want to continue the hire agreement after 30-4-1975.
24. It is of course contended on behalf of the plaintiff that in view of what happened in the previous two years, the 1st defendant had to pay the fee of Rs. 100/- for the renewal of the licence and obtain a challan, get the application for renewal signed by the plaintiff, and submit the renewal application alongwith the challan at the Boat Office and have the licence renewed on his own. This appealed to the learned Subordinate Judge. Inasmuch as the 1st defendant did not do that in April/May 1975, it is further contended that the 1st defendant had committed default and therefore he was liable for the rents for May, June and July 1975 and also for the return of the suit launch. The learned Subordinate judge did not accept this contention in so far as the payment of rent for the 3 months was concerned because he held that the plaintiff also was responsible for the non-renewal of the licence because she got issued Ex.B-1. I am of the view that the learned Subordinate Judge was not right in accepting the contention on behalf of the plaintiff that past practice can be relied upon for creating an obligation on the part of the 1st defendant when Ex.A-1 did not mention anything about it. There was no such plea in the plaints in both the suits filed by the plaintiff. The agreements for the previous years were not produced and nothing was mentioned about the terms of the said agreements. In Haji Mohammed v. Spinner, ILR 24 Bombay 510 the Bombay High Court held that the evidence of previous dealings could not be relied upon to impose on a party an obligation as to which the contract was silent. I respectfully agree with this view. The rationale is that it may be that the 1st defendant paid the licence fees for the earlier two years because it was contemplated that the hire of the suit launch would be continued for the following years. It is important also to note in this connection that the 1st defendant as D.W.I did not admit when he was crossexamined at the end on 9-7-1982 that he paid the licence fees out of his pocket. He only stated that he deposited the amount and obtained the signature of P.W.7 on the application for renewal. As already stated by me earlier, the question of payment of licence fees is not really relevant on the facts of the present case because even by 26-4-1975 P.W.I sent Ex.B-1 letter to the Executive Engineer, P.W.D., with a copy to the Boat Superintendent at Dowlaishwararn, the receipt of which was not denied by P.W.4.
25. The question that remains is whether the suit launch was taken over by the plaintiff. This depends upon whether the evidence on the plaintiff's side is more reliable, believable and more probable when compared with the evidence on the 1st defendant's side. On an overall view of the entire matter, I amincjined to believe the evidence on the 1st defendant's side. Admittedly the plaintiff had not given any suit notice prior to the filing of the first suit or the second suit. Even the first suit was filed nearly one year after 30-4-1975. As already pointed out by me as a first aspect to be noticed, the plaintiff filed the first suit with what transpired to be a false allegation that the 1st defendant was continuing to run the suit launch after 30-4-1975 and even after 31-7-1975 suppressing the very material and crucial fact that the licence of the suit launch was not renewed for the period commencing from 1-5-1975. The plaintiff also filed the two suits with an allegation which she woefully failed to establish that the 1st defendant removed the parts of the suit launch and fitted them to his launch. If really the suit launch was not taken possession of by the plaintiff it would not be natural for her not to issue a notice calling upon the 1st defendant to deliver possession of the suit launch; and what is more, it is utterly unnatural for her and P.W.I to wait for nearly one year and then to file a suit for rent for 3 months in the first instance. On the facts and circumstances of the present case, the first suit has to be viewed as an explaratory one. It is also wholly unnatural for the plaintiff and P.W.I not to take possession of the suit launch which as I held was kept at the Boat Office on 30-4-1975 for the renewal of the licence. Clauses 7 and 8 of Ex.A-1 hire agreement clearly entitled the plaintiff to takeover possession of the suit launch in the event of violation of any of the conditions of the hire agreement including failure to pay the rent every month as agreed. The learned Subordinate Judge held; "He (D.W.I) kept the launch in Dowlaishwaram shore and left it to the mercy of the Watchman, Mylapalli Appanna".
26. The learned Subordinate Judge failed to take note of Clause 8 of Ex.A-1 which clearly provides that in the event of default in the payment of rents, the plaintiff is entitled to take possession of the suit launch. It is not the case of the plaintiff that the 1st defendant in any way prevented her from taking possession of the suit launch or that he secreted the suit launch. If really the plaintiff did not have possession of the suit launch after 30-4-1975 it is for the plaintiff or P.W1 to explain why possession of the suit launch was not taken over by them-under Clauses 7 and 8 of Ex.A-1. No such explanation was forthcoming. Their conduct in not issuing any notice to the 1st defendant for handing over possession of the suit launch and in not taking any steps and in not filing a suit immediately for possession of the suit launch can be explained only on the basis that they already had possession of the suit launch; which they suppressed and filed false suits for possession of what was already in their possession taking false pleas, as already pointed out earlier. What I found about the so called mediation also supports this view of mine because no mediation whatsoever was established as regards delivery of possession of the suit launch. If that was so, there was'no explanation whatsoever from the plaintiff for waiting for more than one year for filing the suit for possession of the suit launch. On the other hand, I find that what the 1st defendant stated as regards handing over of the possession appears to be more plausible and reasonable on the facts and circumstances of the present case. To appreciate this, the circumstances obtaining on 30-4-1975 have to be kept in view. The existing licence expired at the end of that day. Plaintiff sent Ex.B~l to the authorities concerned and a copy of it to the Boat Superintendent at Dowlaishwaram. After 30-4-1975, the 1st defendant could not ply the suit launch for want of licence. Therefore, he could not move it out of Dowlaishwaram. P.W.I was not available. Plaintiff, a lady, was not at Dowlaishwaram but at Polavaram. The 1st defendant states that he was informed by the Boat Superintendent that he received alerter from the plaintiff. He states that there upon he went to the plaintiff and she said that her husband was not available and that the launch should be left at Dowlaishwaram in the charge of the Watchman. He also states that he wanted the return of the deposit of Rs. 1,000/- if licence was not renewed. He states that under the circumstances, he left the launch in the custody of the Watchman Mylapalli Appanna who was the employee of the plaintiff and formed part of the launch establishment. I am of the view that in the circumstances, the 1st defendant could not have done anything else.
27. The learned Subordinate Judge disbelieved the 1st defendant when he says that Mylapalli Appanna was in the employ of the plaintiff and was inclined to accept the evidence of P.W1 and P.W.7 without analysing their evidence and without considering whether their evidence was credible and without examinig Clause 5 of Ex.A-1 which provides that the launch shall be used along with 'establish' personnel paying their expenses without any involvement of the plaintiff. In this connection, it is relevant to notice that even when P.W.6 the Commissioner appointed by the Court visited the suit launch on 18-7-1976, the Watchman Mylapalli Appa Rao was present and he was having the keys of the suit launch and some parts of the engine were in his house as noted in the report of the Commissioner Ex.A-3. In Ex.A-3 the Commissioner noted:
"Then the watchman took to his house where the following parts are in his safe custody."
Obviously the Watchman was having his house nearby the place where the suit launch was found by the Commissioner. The report shows that P.W.I accompanied the Commissioner to the suit launch which means that he knew where the suit launch was at that time. It is impossible to believe that the suit launch was being taken care of by the Watchman Mylapalli Appa Rao even after more than one year from 30-4-1975 so faithfully without being paid any salary and if salary was being paid to him it is inconceivable that the 1st defendant was paying his salary. It is more probable that he was continuing as Watchman of the launch under the employ of the plaintiff. That also explains why he was so readily available when the Commissioner along with P.W.I came to the suit launch on 18-7-1976 and also obligingly took them to his house and showed them the parts of the suit launch which he kept safely there. It is in this context that Ex. B-2 and G-3 have to be understood. The explanation which P.W.I gave, and which found favour with the learned Subordinate Judge, was an attempt to get over the unpalatable inference that would necessarily be drawn i.e., that Mylapalli Appanna and Pothuraju were being paid by the plaintiff or P.W.I in fact P.W.I gave evidence throughout as if the suit launch was his. I do not find the explanation of P.W.I convincing.
28. On an over all view of the matter, I therefore hold that the plaintiff had taken over the possession of the suit launch after the 1st defendant left it at the Boat Office on 3-4-1975 putting the Watchman Mylapalli Appa Rao in charge of the launch as instructed by the plaintiff. I therefore, allow A.S.No. 2269 of 1982 and set aside the judgment and decree of the learned Subordinate Judge in O.S.No. 65 of 1976 dated 26-8-1982 and dismiss the suit with costs throughout, I do not find any merit in Tr. A.S.No. 1653 of 1984 and therefore dismiss the same1 with costs.