TMI Blog1976 (12) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... s, one of 23rd January, 1954, through their attorney, Ramesh Jethalal Thakker (hereinafter referred to as Thakker Junior), for supplying 8000 tons of iron ore, altered in some respects, by a later agreement, and the other of 4th February, 1954, alleged to be binding on the Sequeiras although entered into through Jethalal C. Thakker (hereinafter referred to as Thakker Senior ), the.father of R.J. Thakker. The most important clause in the contract of 23rd January, 1954, was that iron ore should be loaded in a ship Mary K at Marmagoa, and that the loading must be done at the rate of 500 tons per weather working day of 24 hours. Under the contract, the rate of demurrage for not loading the ship in time was to be paid at the rate of US $ 800.00 per day an pro rata for each fraction of a day. The buyer company was to pay what was called despatch money at half the rate of demurrage for time saved in loading. The payment was to be in the Portuguese Indian rupees at the exchange rate of ₹ 4.76 per US $. The buyers had also to make an initial payment of ₹ 55,000/- as soon, as delivery by loading began. The buyers were also to establish a Letter of Credit, before 27th Janua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... binding upon the Sequeiras as Thakker (Junior) was found to have been given only a limited authority so that he could not constitute his father his attorney for the purpose of executing the second agreement. The Trial Court accepted the basis of the counter-claim of the Sequeiras and found that the company had committed breaches of contract but left the quantum of damages to be determined in execution proceedings. The decree of the Trial Court was substantially affirmed in appeal. Nevertheless, the Additional Judicial Commissioner Goa, Daman Diu, had modified the decree, the appellant company has come up to this Court in appeal as of right. Two questions arise for determination before us. The first is whether the second contract of 5th February, 1954, was duly covered by the authority conferred by the Sequeiras upon their attorney, Ramesh Jethalal Thakker, or not. The second relates to the amount of demurrage, if any, payable by the Sequeiras, the defendants-respondents, to the plaintiffappellant. On the first question, the Judicial Commissioner concentrated on the dictionary meaning of the word exploitation used in the power attorney executed by the Sequeiras in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en temporary, sign applications, suits and only other things necessary, attach and withdraw documents, make declaration. even under oath and in general any powers necessary for the exploitation of the mine named Pale Dongor situate at Pale for the concession of which the said Siqueira applied and which he is going to obtain to impugn, object, protect and prefer appeals upto the higher Courts, notify and accept notifications and summons in terms of Sec. 35 and 37 of the C.P.C., to use all judicial powers without any limitation, to subrogate these powers to some one else. This was said and contracted. The witnesses were Bablo Panduronga Catcar ad Xec Adam Xecoli, both married landlords, major of age from Bicholim who sign below . Apparently, practice and custom have some bearing on these transactions in Goa. It is this reason that, although the power of Attorney was executed by Mr. Sequeira, yet, his wife was impleaded, according to the practice in Goa, and no objection was raised either on the ground that she was wrongly impleaded or that the power of attorney was vitiated on the ground that it was executed only by her husband. In any case, the subsequent agreement of 23rd Januar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omissory note, it would probably be generally understood to mean to sell or discount, and not to pledge it. Here it does not stand alone, and, looking at the words with which it is coupled, their Lordships are of opinion that it cannot have the effect which the appellant gives to it, and, for the same reason, dispose of cannot have that effect . We think that this case also bears out the mode of construction adopted by us. We were then referred to O.A.P.R.M.,A.R..Adaikappa Chettiar v. Thomas Cook Son (Bankers) Ltd.,( A.I.R. 1933 PC 78) where the well known principle of ejusdem generis was applied to hold that general words following words conferring specifically enumerated powers cannot be construed so as to enlarge the restricted power there mentioned . In this case, the purpose of the general power was subordinated to the specific powers given which determined the object of the power of attorney. There is no deviation in this case from the general rules of construction set out above by us. We have indicated above that implied powers cannot go beyond the scope of the general object of the power but must necessarily be subordinated to it. In fact, in a case like the one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility to pay for delay in loading irrespective of whether the company had to pay the shippers any demurrage. It was urged that the liability was upon the seller irrespective of whether such payment had to be made to the shipping company or not. We think that the demurrage could not be claimed when the delay in loading was due to the default of the respondents themselves. It is apparent that the basis upon which the agreement to pay demurrage rested was that the appellant will afford proper facilities for loading. When the appellant itself had committed breaches of its obligations, it is difficult to see how the respondents could be made responsible for the delay in loading. We think that the Judicial Commissioner had rightly disallowed this part of the claim. In the result, we partly allow this appeal, set aside the finding of the Judicial Commissioner as regards the binding nature of the contract dated 5th February, 1954. We hold that this document embodied the terms of an agreement which was legally binding on both sides before us. The case will now go back to the Trial Court for determination of the liabilities of the parties to each other for alleged breaches of contract ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tever might be the ground for non-appearance of a party, the High Court having once passed an order declining to answer the question referred to it because of the non-appearance of that party, is functus officio or helpless and cannot pass an order for disposing of the reference on merits. The High Court in suitable cases has, as already mentioned, inherent power to recall the order made in the absence of the party and to dispose of the reference on merits. There is nothing in any of the provisions of the Act which, either expressly or by necessary implication, stands in the way of the High Court from passing an order for disposal of the reference on merits. The courts have power, in the absence of any express or implied prohibition, to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the court. To hold otherwise would result in quite a number of cases in gross miscarriage of justice. Suppose, for instance, a party proceeds towards the High Court to be present at the time the reference is to be taken up for hearing and on the way meets with an accident. Suppose, further, in such an event the High Court passes an order declining to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement on the northern side of the ground floor is in the possession of respondent No. 3, while the tenement on the southern side is in the possession of the appellant as a tenant since the last over 35 years. The appellant pays rent of ₹ 4/- per month in respect of the tenement in his occupation. Respondent No. 3, after determining the tenancy of the appellant, made an application before the Rent Control and Eviction Officer, Allahabad under section 3 of the U.P. Rent Control Eviction Act, 1947 for permission to file a suit to eject the appellant on the ground that she bona fide required the rented premises in the possession of the appellant for her use and occupation. The Rent Control Eviction Officer, on a consideration of the evidence led before him, came to the conclusion that the need of respondent No. 3 for the rented premises was not bona fide and genuine and on this view, he rejected the application of respondent No. 3 by an order dated 23rd February, 1972. Respondent No. 3 preferred a revision application against the decision of the Rent Control and Eviction Officer to the Commissioner and, on the coming into force of the U.P. Urban Buildings (Regulation of Letti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of respondent No. 3 for release of rented premises. This led to the filing of a writ petition by respondent No. 3 in the High Court of Allahabad challenging the legality of the order rejecting her application. Respondent No. 3 contended that since her bona fide requirement of the rented premises was established by reason of applicability of Explanation (iv) to section 21 (1) of U.P. Act No. 13 of 1972, the question of comparative hardship was immaterial and the District Court was in error in throwing out her application on the ground that greater hardship would be caused to the appellant by granting her application than what would be caused to her by refusing it. The High Court while dealing with this contention observed that the Prescribed Authority had recorded a finding of fact that the accommodation on the ground floor constituted one building and the respondent was in possession of a part of the building and the land lady was in occupation of the remaining part of the building for the residential purposes and this finding of fact reached by the prescribed Authority was confirmed by the District court and in view of this finding which the High Court a apparently though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment would be a unit and not part of a unit. It is only where there is a unit of accommodation out of which a part is under tenancy and the remaining part is in the occupation of the landlord, that the Explanation, would be attracted. To determine the applicability of the Explanation, the question to be asked would be whether the accommodation under tenancy and the accommodation in the occupation of the landlord together constitute one unit of accommodation ? The object of the Legislature clearly was that where there is a single unit of accommodation, of which a part has been let out to a tenant, the landlord who is in occupation of the remaining part should be entitled to recover possession of the part let out to the tenant. It could never have been intended by the Legislature that where a super-structure consists of two independent and separate units of accommodation one of which is let out to a tenant and the other is in the occupation of the landlord, the landlord should, without any proof of bona fide requirement, be entitled to recover possession of the tenement let out to the tenant. It is difficult to see what social object or purpose the legislation could have had in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strict Court finds that by reason of the omission of Explanation (iv) by U.P. Act No. 28 of 1976 respondent No. 3 is no .longer entitled to rely on it to sustain her claim for release of the rented premises in her favour, it will be unnecessary for the District Court to examine the further question as to whether Explanation (iv) is attracted on the facts of the present case, If, on the other hand, District Court finds that the omission of Explanation (iv) by U.P. Act No. 28 of 1976 being prospective and not retrospective, respondent No. 3 is entitled to avail of that Explanation, the District Court will proceed to decide whether the two tenements or the .around floor constituted one single unit of accommodation so as to attract the applicability of Explanation (iv) and for this purpose, the District Court may, if it so thinks necessary, either take further evidence itself or require further evidence to be taken by the Prescribed Authority.If the District Court finds that the case is covered by Explanation (iv), there would be no question of examining comparative hardship of the appellant and respondent No. 3, and respondent No. 3 would straight away be entitled to an order of relea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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