(1) The petitioner is the plaintiff. He sued to recover an amount which he claimed was due to him in respect of certain constructions which he had put up on the premises leased to him by the defendant respondent. The premises is a mill and it is not denied by the defendant that he had agreed to put up certain additional constructions thereon. Subsequently, however, the plaintiff was permitted by the defendant to put up the constructions at his own expense on the promise that he would he reimbursed therefor. When finally that amount was not so paid, the plaintiff brought the matter to court. In the plaint, he specifically pleaded art agreement whereunder the defendant had agreed to pay the value of these structures. The learned Subordinate judge, while he found against the contention of the defendant that it was he himself who had put up these contentions, came to the conclusion that the plaintiff had failed to prove the specific agreement set up by him, and that agreement failing, lie proceeded to dismiss the suit. It is against that judgment that the present revision petition has been filed.
(2) on the factum of who put up the additional structures, I have no doubt whatsoever that the learned Subordinate Judge came to the correct conclusion that it was the plaintiff who expended the moneys therefor and put up these constructions. It is not necessary to examine whether the alleged oral agreement specifically relied upon by the plaintiff, whereunder, according to him, the defendant had agreed to reimburse him for the expenses incurred in this connection has been established. It seems to me that having regard to all the circumstances of the case, that version is must likely to be true. I may, however, refer to certain features which have been relied upon on behalf of the respondent to suggest that this promise of reimbursement is not substantiated. It is seen that this agreement to lease the premises was entered into on 9-3-1958 and in pursuance of this agreement an advance of Rs. 500 was paid by the plaintiff to the defendant. It also appears that subsequently on 11-6-1958, the balance of the advance of Rs. 1500 was paid. Sometime later, a cheque for Rs. 60 and odd was sent by the plaintiff to the defendant towards expenses for the purchase of stamps. Learned counsel for the respondent points out that if the version about the agreement to reimburse the plaintiff is true, here were at least two occasions on which the plaintiff could have set off his claim of Rs. 700 against the amounts which he subsequently paid to the defendant. On the other side, it is contended that by 11-6-1958, when the balance of the advance was so paid, the work had not been completed and therefore there was no proper occasion to make the necessary adjustment. The subsequent payment of Rs. 60/- 97 nP. which was intended to meet the expenses, for the purchase of stamps, could not be taken advantage of for the adjustment of such a large sum as Rs. 700. These arguments, therefore, on the. part of the respondent do not affect the conclusion which the learned Subordinate Judge reached on the question of the genuineness of the oral agreement pleaded.
(3) Even assuming that the oral evidence was not deemed to be satisfactory, the plaintiffs claim appears to have been passed on another ground, that is, under S. 70 of the Contract Act According to, the learned counsel for the petitioner-plaintiff, here is a case where the parties had agreed that certain additions to the leased premises were necessary. The defendant-lessor agreed to put up These constructions, though later he was unable, to spare the time or the money necessary for the purpose. in order to effectuate the lease transaction itself, these additional constructions were necessary and if the plaintiff put up these constructions, the benefit of which would subsequently accrue to the defendant, the owner of the premises, here is clearly a case where the Plaintiff is entitled to be reimbursed as these constructions were not put up gratuitously by him. All the conditions necessary to attract S. 70 of the Contract Act would appear to exist in this case. On the other band, however, It is argued for the respondent that unless the plaintiff comes to court and pleads specifically that he is entitled to the relief under S. 70 of the Contract Act, he cannot be granted a decree. Several cases have been cited, but one of the important vases which clearly sets out what the necessary conditions are which attract the application of S. 70 is reported in Nalini Ranjan Guha v. Union of India, 93 Cal LJ 373 where it is laid down that the antecedent request pursuant to which the work was done forms no part of the cause of action under See. 70 of the Indian Contract Act, that is to say, that It does not even appear to be necessary that there should be a request proceeding from one party to the other before the work was ever undertaken or done to enable a resort to S. 70 or of the Contract Act. This would meet the argument that the plaintiff had failed to establish the oral agreement with regard, to the reimbursement demanded.
(4) Sathiavel Pillai v. Sivasami Pillai : AIR1933Mad344 , has been relied upon. This case also laid down that where the suit was laid, on the basis of an alleged contract and the contract was not proved, the court has no jurisdiction to grant the relief on the principle of quantum meruit, unless it has been asked for alternatively. In another case Ratanlal Hiralal v. Chandradutt AIR 1951 Nag 431, a principle some what similar has been laid down to the effect that if an express agreement has been pleaded and that fails, relief cannot be granted on the basis of an implied agreement which has not been pleaded. These cases have been relied upon by the respondent for the argument that unless the plaint specifically bases its claim to relief under S. 70 of the Indian Contract Act, the court should not grant that relief.
(5) While, no doubt, these decisions do appear to support such a view, a recent decision of the Supreme Court in Subramanyam v. B. Thayyappa 1961 1 Mad LJ (SN) would suggest that the reasoning underlying the above decisions cannot any longer be regarded as applicable to this class of cases. in this case, their Lordships say:
'If a party to a contract has rendered service to the other not Intended to do so gratuitously, and the other person has obtained some benefit, the former is entitled to compensation for the value of the services rendered by him. Evidently, the respondent made additional constructions to the building and they were not done gratuitously. He was therefore entitled to receive compensation for the work done which was not covered by the agreement. The respondent claimed under an oral agreement compensation at prevailing market rates for work done by him; even if he had failed to prove an express agreement in that behalf, the court may still award, him compensation under S. 70 of the Contract Act. By awarding a decree for compensation under the statute and not under the oral contract pleaded, there was in the circumstances of this case no substantial departure from the claim made by the respondent.'
(6) It seems to me that the facts of the present case appear to be almost on all fours with those of tile decision, in so far as they can he gathered from the short notes of that case. In addition, it may also be pointed out that though cryptically worded, there is at least one sentence in the plaint which would suggest that relief under S. 70 of the Contract Act was also prayed for.
(7) In the result, the judgment and decree of the lower court are set aside. The suit wilt stand decreed, with costs throughout.
(8) Appeal allowed.