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Andhra Pradesh High Court
Judges : A.SAMBASIVA RAO
Malladi Seetharama Sastry - Appellant
Versus
Naganath Kawlwar - Respondent
Decided On : 10-06-67
TELEGRAPH ACT - TELEPHONE CONNECTION - TRANSFER OF TELEPHONE CONNECTION - LEGALITY - SECTION 23 OF THE INDIAN CONTRACT ACT - PUBLIC POLICY - PENALTIES FOR BREACH OF CONDITIONS - MAINTENANCE OF PUBLIC ORDER AND SAFETY - SECTION 65 OF THE INDIAN CONTRACT ACT - LOCUS PAENITENTIAE - PART PERFORMANCE OF ILLEGAL CONTRACT.
Fact of the Case:
The plaintiff, who had a telephone connection in his name, allowed the defendant to use the telephone in its building. The defendant defaulted on the payment of telephone charges, and the plaintiff was forced to pay the outstanding amount. The plaintiff filed a suit to recover the amount from the defendant, but the trial court dismissed the suit, holding that the arrangement between the plaintiff and the defendant was hit by Section 23 of the Indian Contract Act.
Finding of the Court:
The court held that the arrangement between the plaintiff and the defendant was prohibited by the agreement between the plaintiff and the Government for the installation of the telephone, which prohibited the transfer of the telephone without the prior written consent of the Government. The court also held that the Act under which the agreement was made was not merely a fiscal enactment but was also intended to safeguard national safety and provide amenities to the general public. Therefore, the court held that the arrangement between the plaintiff and the defendant was opposed to public policy and was hit by Section 23 of the Indian Contract Act.
Issues: 1. Whether the arrangement between the plaintiff and the defendant was prohibited by the agreement between the plaintiff and the Government for the installation of the telephone? 2. Whether the Act under which the agreement was made was merely a fiscal enactment or was also intended to safeguard national safety and provide amenities to the general public? 3. Whether the arrangement between the plaintiff and the defendant was opposed to public policy and was hit by Section 23 of the Indian Contract Act?
Ratio Decidendi: 1. The court held that the arrangement between the plaintiff and the defendant was prohibited by the agreement between the plaintiff and the Government for the installation of the telephone, which prohibited the transfer of the telephone without the prior written consent of the Government. 2. The court held that the Act under which the agreement was made was not merely a fiscal enactment but was also intended to safeguard national safety and provide amenities to the general public. 3. The court held that the arrangement between the plaintiff and the defendant was opposed to public policy and was hit by Section 23 of the Indian Contract Act.
Final Decision: The court dismissed the plaintiff's revision petition with costs.
( 1 ) THIS is a revision petition under Section 25 of the Provincial Small Causes Courts Act. The plaintiff, whose claim to recover a sum of Rs. 1219-97 np. from the defendant, has been rejected by the lower court, has preferred this revision petition. The amount the plaintiff sought to recover represents the principal and interest due to him from the defendant towards telephone charges from April, 1956 to 7/09/1956; the principal amount being Rs. 900-56 Ps.
( 2 ) THE plaintiff was a resident of a house in Vijayawada bearing Municipal Door No. 6/142. He applied for and was given a telephone connection in the year 1853. The defendant is a firm located in the building in the same town bearing door No. 11-25-22 and situated within 60 yards from the plaintiffs building. The defendant requested the plaintiff that the telephone might be installed in its building so that it could use it for its rice export business. As the plaintiff had no immediate need for a telephone he acceded to the request of the defendant. The telephone bearing No. BJ 122 was accordingly installed in the defendants premises. The defendant was using it since its installation in 1954. The defendant however, defaulted in the payment of the telephone charges from April 1956. The demand notices were however issued to the plaintiff as the telephone stood in the name of the plaintiff. Though he brought this matter to the notice of the defendant the latter failed to pay the amount. Even a registered notice dated 16/06/1958, issued by him to the defendant to pay the arrears of the telephone bills was of no avail. The plaintiff was therefore obliged to pay the telephone charges himself, which he did in two instalments -- (1) Rs. 500. 00 on 16/07/1958 and (2) Rs. 400-9-0 on 24/08/1958. Even though the defendant was informed of these payments and demand was made by the plaintiff to reimburse him the defendant did not comply with the demand. The plaintiff was therefore, obliged to file the suit.
( 3 ) THE defence was a total denial of this arrangement, viz. , that the telephone bearing No BJ 122, which was issued in the name of the plaintiff was at the latters request. It was further contended that any sub-letting, assignment or transfer of a telephone was clearly prohibited by the conditions governing the contract under which a subscriber obtains an installation and that the agreement which was pleaded by the plaintiff violates the statutory provisions and was void and unenforceable under Section 23 of the Indian Contract Act. It was also contended that the suit claim was barred by limitation.
( 4 ) THE trial court found that the case of the plaintiff was true and that the agreement pleaded by him with regard to the Installation of the telephone No. 122 in the defendants premises and the undertaking given by D. W. 1 for payment of the charges due for the telephone was true. It, further found that the suit was not barred by limitation. Having found these questions in favour of the plaintiff the trial court, however held that the arrangement pleaded by the plaintiff and the suit claim made by him were hit by the provisions of Section 23 of the Contract Act. and that, therefore, the suit relief could not be granted to the plaintiff. It further held that Section 65 of the Contract Act had no application to the case. Aggrieved by this rejection of his claim by the trial court the plaintiff has come up in revision.
( 5 ) THE only point that has been urged before me by the learned counsel for the plaintiff-petitioner is that the lower court was wrong in coming to the conclusion that the prohibition of a transfer of the benefit of the telephone by the plaintiff to the defendant was opposed to public policy and that the suit claim was hit by Section 23 of the Indian Contract Act. The learned counsel has contended that the Indian Telegraph Act, 1885 which will be hereinafter referred to as the Act. in accordance with which the plaintiff had entered into en agree
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