Bikash Chandra Syam vs Macneill and Barry Ltd.

Ghose, J.—This suit was instituted by the Plaintiff, inter alia, for a declaration that the notice dated March 23, 1964, terminating the Plaintiff''s service under the Defendant No. 2 with effect from April 1, 1964, was ultra vires, illegal and of no effect, declaration that the service of the Plaintiff has been continuing alternatively decree for Rs. 5,35,062 as damages for wrongful dismissal, in the further alternative an enquiry as to the damages suffered-by the Plaintiff and decree for such sum as is found due upon such enquiry, interest and, costs. The Defendant No. 1 was at all material times and still now is the Secretary of the Defendant No. 2.

The Plaintiff''s case as laid in the plaint is as follows: The Plaintiff is a graduate in Medicine and Surgery of the Calcutta University and is also a member of the Royal College of Physicians; Edinburgh. The Plaintiff was appointed at Calcutta, within the jurisdiction of this Court, Chief Medical Officer to the Defendant No. 2, Dibrugarh Medical Practice, at a basic salary of Rs. 1,250 p.m., dearness allowance Rs. 300, conveyance allowance Rs. 350 subject to confirmation after one year ''when the condition of service may be varied''. The Plaintiff was also to receive servant''s wages to the extent of Rs. 300 p.m. and retirement benefit at the time of superannuation in the form of parallel insurance policies on the life of the Plaintiff to be taken out by the Defendants.

The Plaintiff joined the said post on April ], 1957, and was confirmed as a permanent employee with effect from April 1, 1958, on or about September 15, 1958, by an agreement arrived at by and between the parties whereby the conditions of the services of the Plaintiff was duly altered with the mutual consent of the parties. In accordance with the said alterations the Plaintiff was to receive a consolidated sum of Rs. 2,000 including D.A. and conveyance allowance, increment of Rs. 50 pa. on the completion of each year''s service and servant''s wages of Rs. 300 p.m. The said agreement regarding the conditions of service was to be in force originally for three years from April 1, 1958, and thereafter to be renewed in the usual way until retirement.

In accordance with the aforesaid, two parallel insurance policies on the life of the Plaintiff were taken out by the Defendants for the total sum. of Rs. 58,800 annual premium were for Rs. 1,825 at the desire of the Plaintiff who elected to take the retirement benefit in the form of life insurance and not provident fund.

On or about June 29, 1961, the Defendant wrongfully sought to terminate the service of the Plaintiff with effect from January 1, 1962. Thereupon, the Plaintiff in this Court instituted a suit being suit No. 1721 of 1961 (Bikash Chandra Syam v. Macneill and Barry Ltd. and Anr.), inter alia, for various declarations including a declaration that the said notice terminating the Plaintiff''s service was bad, illegal and of no effect. Soon after the service of the writ of summons upon the Defendants the said suit was settled, in accordance with the terms of settlement arrived at by and between the parties to the said suit. Pursuant to the said compromise by an agreement dated February 7, 1962, executed by the Plaintiff and the Defendant No. 1, the Plaintiff was appointed Chief Medical Officer of the Defendant No. 2 for a period of three years commencing from April 1, 1961.

The Plaintiff alleges that at the time the said terms were arrived at, the Defendants represented to the Plaintiff that the Plaintiff''s services were permanent with the Defendants and periodically formal contracts would be executed in the usual way. The Plaintiff acted on the said representation and the suit was thereupon withdrawn. ''

On or about March 23, 1964, the Plaintiff was served with a notice by the Defendant No. 1 on behalf of the Defendant No. 2 that the Plaintiff''s services would be terminated with effect from April ], 1964. Pursuant to the said notice the Defendants put an end to the service of the Plaintiff and evicted him from the bungalow which he was occupying. According to. the Plaintiff, the Plaintiff''s service was permanent and he was to retire on or about January 1, 1976. The Plaintiff has claimed damages, as mentioned above, for the sum of Rs. 4,35,062 on account of salary and allowances payable to the Plaintiff between April 1,1964, and December 3J, 1975. The Plaintiff has also claimed damages for Rs. 1,00,000 on account of mental agony, pain and loss of reputation amongst friends and relatives, fellow members in the profession and members of public at large for the said wrongful termination of his service.

The Defendants in the written statement have denied the contentions of the Plaintiff as alleged in the plaint. According to the Defendants, the Plaintiff''s service was for a period of three years from April 1, 1958, on the terms and conditions mentioned in the first Defendant''s letter dated September 15, 1958, written to the Plaintiff and accepted by him. The Defendant denied that the Plaintiff1 was ever a permanent employee under the Defendants or any of them. The Plaintiff subsequently was appointed Chief Medical Officer by formal agreement dated February 7, 1962, duly executed by the parties on the terms and conditions contained in the said agreement dated February 7, 1962. The period for which the Plaintiff was appointed Chief Medical Officer under the said agreement was three years commencing from April 1,1961, and ending-on March 3, 1964, subject to termination of the said employment by either of. the parties to the said agreement dated February 7, 1961, in accordance with the provisions contained in the said agreement. Save and except that the Plaintiff was an employee under the Defendant No. 2 on the terms and conditions contained first in the letter dated March 12, 1957, thereafter on the terms and conditions contained in a letter dated September 15, 1958, and finally on the terms and conditions contained in the, said agreement dated February 7,1962, the other allegations contained in the plaint have been denied by the Defendants.

Upon the pleadings the following issues were raised and settled:

(1)(a) Was there any agreement between the Plaintiff and the. Defendants or Mr. Pitcairn on behalf of the Defendant No. ''1 as to retirement benefits at the time of superannuation or regarding retirement as alleged in paras 2, 5 & 6 of the plaint and the relative particulars thereof furnished by the undated letter of the Plaintiff''s Solicitor?

(b) If so, was that agreement and /or representation subsequently modified and/or superseded by subsequent agreement as contained in the letters dated September 15, 1958, and September 19, 1958, as alleged in para. 4 of the written statement?

(2)(a) Was the Plaintiff a permanent employee of the Defendants as alleged in paras. 3 and 4 of the plaint and the relative particulars thereof furnished by the undated letter of the Plaintiff''s Solicitor ?

(b) If so, was the Plaintiff entitled to remain in the service of the Defendants until superannuation on December 31, 1975, as alleged in para. 16 of the plaint ?

(c) Was the alleged oral agreement superseded: by the said two letters dated September 15 and 19, 1958, as alleged in para. 4 of the written statement?

(3)(a) Was there any representation by the Defendants and/or Mr. Bannerman and/or Mr. Sinha as alleged in para. 9 of the plaint arid the relative particulars thereto ? If so, what is the effect thereof ?

(b) Did Mr. Bannerman not have any concern with the Defendants as alleged in para. 10 of the written statement?

(4) Was the Plaintiff a permanent employee of the Defendants as alleged in para. 10 of the plaint ?

(5) Did the letter of March 23,1964, constitute a notice of termination as alleged in para. 11 of the plaint ?.

(6) Was there any termination of the service of the Plaintiff or dismissal of the Plaintiff as alleged in para..11 of the plaint ?

(7) Did the Defendants by their alleged acts or conduct make any alleged representation as alleged, in para. 13 of the plaint ?

(8) What loss and damages, if any, has the Plaintiff suffered ?

(9) Dose the plaint disclose" any cause of action ?

(10) Is the suit against the first Defendant misconceived and not maintainable ?

(11) To what beliefs, if any, is the Plaintiff entitled?

The parties have adduced evidence, both documentary and oral. On behalf of the Plaintiff, besides the Plaintiff, his Solicitor Sri Anil Ghose has deposed. On behalf of the Defendants Lord S. P. Sinha, Managing Director of the Defendant No. 1, and one Prosad (Kumar De have been examined. The brief of correspondence and documents except P.D. No. 29 and P.D. No. 42 contained therein have been tendered by consent of parties and marked as Ex. A.

A copy of a letter dated December 27,1961, written by the Defendant No. 1 together with a copy of the enclosure to the said letter, being a draft agreement, has been tendered by consent and marked as Ex. D.

Dr. Syam''s evidence on the question of tenure of service may be found in his answers to Qs. 26 to 41, 47, 52, 53, 61 to 68, 83 to 89 in examination-in-chief and in answers to Qs. 175 to 189, 187 to 200, 309 to 310 in cross-examination. The substance of the Plaintiff''s evidence is this that the Plaintiff was first appointed the Chief Medical Officer of the Defendant No. 2 by the Defendant No. 1 by the Defendant No. l''s letter dated March 12, 1957, and accepted by the Plaintiff''s letter dated March 18, 1957. The Plaintiff duly joined as such probationary officer and continued to act as the Chief Medical Officer even prier to the expiry of one year. Thereafter the Defendant No. 1, on behalf of the Defendant No. 2, confirmed the Plaintiff to act as the Chief Medical Officer of the Defendant No. 2 on the terms and conditions contained in the letter dated September 15,1958. The Plaintiff accepted the said terms by his letter dated September 19, 1968. The case of the Plaintiff is this that, although the said contract was for a period of three years, it was agreed that on the expiry of the period specified in the said contract the contract would be renewed and a fresh contract would be made. This the. Plaintiff stated in answer to Q, 36. The said question and answer is set out hereunder:

What happens after the expiry?

The contract is renewed and a fresh contract is made. Each time the contract expires a fresh contract is made.

Is it renewed a matter of course?

Yes, unless there is some reason to discontinue the service.

The said agreement, according to the Plaintiff, was arrived at prior to the exchange of the said letters dated September 15,1958, and September 19, 1958, with Mr. Pitcairn as well as Mr. S. P. Sinha. In consequence of the said agreement the; Plaintiff became a permanent employee under the Defendant No. 2. The Plaintiff elected to have two life insurance policies for the aggregate sum of Rs. 58,500 by way of retiring benefit, the premium in respect whereof was to be paid by the Defendants. The said life insurance policies corroborate, according to the Plaintiff, that the Plaintiff was a permanent employee under the Defendants and/or was to serve the Defendant upto the age of superannuation which, according to the Plaintiff, was December 31, 1975, in the instant case. The Plaintiff was assured by the said Mr. Pitcairn that he was a permanent Chief Medical Officer under the Defendants. The assurances by Mr. Pitcairn have been stated by the Plaintiff in answer to Qs. 131 to 137, 144-145, 153, 187 to 194.

The Plaintiff on the expiry of the period of three years, that is after April 1, 1961, continued to act as such Chief Medical Officer when he was served with a notice dated June 29,1961, by which the Defendants terminated the said employment on the expiry of a period of six months from that date, he. on the expiry of December 1961. The Plaintiff instituted a suit for declaration that he was a permanent employee under the Defendants. The said suit was compromised pursuant to discussion held on December 6, 1961, the said discussions were recorded in a letter dated December 27, 1961, being Ex. D, pursuant to the said discussions a copy of the draft agreement was sent. The said draft agreement was altered a little and, thereafter, final agreement was arrived at by and between the parties and executed. The said final agreement is dated February 7, 1962. The said agreement dated February 7,1962, was to expire on the expiry of three years from April 1, 1961. Prior to its expiry the Plaintiff was- served with a notice dated March 23, 1964. The Plaintiff is now asking for a declaration that the said notice intimating the Plaintiff that the period of his service was due to expire on March 31, 1964, is void and alternatively for damages as mentioned above.

The contract between the parties was arrived at in the first instance by exchange of two letters mentioned above, namely, letters dated March 12, 1957, and March 19, 1957. The relevant portions of the said letters are set out hereunder:

Dated 12th March 1957

We refer to our recent discussions regarding the vacancy which exists in the Dibrugarh Medical Practice, and now have pleasure in offering you the appointment on the following terms.

* * *

(3) The appointment will be for year initially with option to terminate on either side at one month''s notice.

If you are prepared to accept these terms, we shall require ''you to proceed to Dibrugarh on March 25th, 1957, so that you may assume charge from Dr. Mukherjee from the 1st April. We shall also wish you to call on us in Calcutta on Monday March 18th at 11-00 a.m. to discuss any other details which may not be clear to you.

19th March 1957

I thank you for your letter of the 12th inst. I accept the appointment existing in the -Dibrugarh Medical Practice under the terms and conditions mentioned in your letter.

I called on Mr. S. P. Sinha on the 18th March at 11 a.m. as desired by you in your letter and I have been advised that I can proceed to Dibrugarh on the 28th of March 1957, He has kindly made all the details clear to me and asked me to see him again on Monday the 25th of March at 11 a.m. I will do that.

It is evident from the above that the contract between the parties is contained in the said two letters. Thereafter the Plaintiff was confirmed by exchange of letters between the Plaintiff and the Defendants. The said letters Are dated September 15, 1958, and September 19, 1958. The said letters appear at pp. 12, 13 and 93 of the said Ex. A. The relevant portions of the said letters are set out hereunder:

15th September 1958

We regret that there has been a considerable delay in advising you of your confirmation as Chief Medical Officer of the Dibrugarh Medical Practice, but we now have pleasure in confirming you in your appointment and offering you a 3 year agreement on the following terms which will be effective from the 1st April 1958, i.e. the date on which you may be considered lo have completed one year''s service.

You will also be entitled to increments of Rs 50 per month on the completion of each year''s service during the currency of this agreement. Your first increment will become due.on the 1st April 1959.

* * *

We understand that during your visit to Calcutta in April this year, you mentioned to Mr. Pitcairn the possibility of your proceeding to UC in June 1960 for a 4J month period of Study leave and we confirm that this meets With our approval. During this period however you will not be entitled to conveyance allowance, nor will the servants'' wages be paid. This leave will be subject to your undertaking, prior to your departure, to remain with the Dibrugarh Medical Practice for a minimum period of three years after your return to India.

We are investigating the question of retirement benefits for; you and intend taking out parallel life insurance policies on which the premiums payable will amount to approximately 10 % of your salary. We shall advise you of the details of these policies in due course when we have obtained quotations.

Dated 19th September 1958

I am very pleased to learn from your letter of the 15th instant that I have been confirmed as Chief Medical Officer of the Dibrugarh Medical Practice and that a period of leave for 4J months has been sanctioned from June 1960 for further study in U.K. I accept the terms and conditions mentioned therein and give the undertaking that I shall serve for a minimum period of 3 years on my return to India.

It appears from the above documents that the contract between the parties were concluded and are contained in the said documents. The terms of the said contract of employment, as contained in the said documents, are clear and unambiguous.

Mr. Amiya Nath Bose, appearing on behalf of the Plaintiff, contended that, inasmuch as the post of the Chief Medical Officer was a permanent post, the Plaintiff was appointed as the permanent incumbent of the said post. According to Mr. Bose, the letters dated March 4, 1957, and March 12, 1957, or for that the letters dated September 15,1958, and September 19, 1958, did not contain all the terms and conditions of the contract of employment. The said documents did not contain all the rights of the Plaintiff as such employee under the Defendants nor did they contain all the obligations of the Defendants to the Plaintiff as such employee. Therefore, according to Mr. Bose, the said documents do not contain the entire contract between the parties and, as such, oral evidence can be adduced with regard to the terms and conditions of the said contract and Sections 91 and 92 of the Evidence Act would not stand in the way of adducing oral evidence with regard to the contract of employment between the parties. Further, according to Mr. Bose, the two life policies as contemplated in the said letter dated September 15, 1958, were taken out by the Defendants on the life of the Plaintiff which were to expire on the expiry of December 31, 1975, and thus proved that the Plaintiff was appointed a permanent employee until the age of superannuation on December 31, 1975. According to Mir. Bose, the amenities, namely, with regard to crockeries and cutleries, furnishing and furniture that the Plaintiff was to receive from the Defendants as the Chief Medical Officer was not contained in any of the aforesaid documents. Thus, the contract between the parties at the most was partly oral and partly in writing. Therefore, the oral evidence with regard to the entire terms and conditions could be adduced.

After the institution of the first suit by the Plaintiff when the Plaintiff was making preparation to leave the bungalow, he was requested by Mr. Monroe to see Mr. Bannerman who had been at the Maijan Tea Estate together with Mr. Sinha. Pursuant thereto, the Plaintiff saw Mr. Bannerman and Mr. Sinha in the evening of December 3,1961. They held certain discussions and then agreed to meet again. Mr. Bannerman Mr. Sinha and the Plaintiff met again on December 6, 1961. Mr. Monroe, the Superintendent of the tea gardens, was also there. The discussion that took place at that meeting is set out in the Plaintiff''s words hereunder:

What were the discussions held?

At that time Mr. Bannerman clearly told me that--you are going to stay with, us, Doctor. Your contract will be renewed and you will be with us for as long as you want to be with us. But, you will have to make a contract on the same line as you had before, but it will be a formal and a regular legal contract. I said, there is no objection to it as long as this is in the same line, i.e. as my previous contract.

Then what was the answer given by them ?.

Both of them agreed. They said, all right; if you withdraw your suit, your contract! will be renewed exactly on the same line and you will continue in your service on the same terms and conditions.

See the documents PD-28--a letter dated December 12, 1961. This letter is confirming the discussion you had with Mr. Sinha and Mr. Bannerman on December 6, 1961. Read the second paragraph (reacts). Did you receive the proposed agreement incorporating the clauses ?

Yes, I received this letter--the copy shown here, in duplicate. I received a draft agreement--some sort of draft agreement with it.

Did the draft contain all the clauses discussed by you with Mr. Sinha?

Not all the clauses--there were many clauses which were not incorporated in the draft.

What about the clauses--termination and leave entitlement--were they incorporated according to the discussion ?

The only thing they said---we shall never dismiss you without showing you any cause. If there is any complaint against you we shall first of all refer it to you and on getting your reply and explanation we shall take action. About leave entitlement they said, you are an ideal doctor and you are entitled to two months'' leave. Mr. Baijinerman said two month'' free leave with holiday expenses.

It is curious that none of the said discussions mentioned in answer to Order 88 appears in the said letter dated December 27. 1961, P.D. 28, a part>of Ex. A herein. Thereafter the Plaintiff wrote letters dated December 29,1961, and January 5, 1962. Thereafter the Plaintiff had discussion with Mr. Sinha. For the present I am not dealing with the letter dated January 15, 1962, which the Plaintiff stated that he caused to be sent to the Defendant No. 1 by his Solicitor.

According to Mr. Bose, the second agreement related back to April 1,1961, for the simple reason that the tenure of the Plaintiff''s employment under the Defendant No. 2 was permanent so that the said tenure was not broken. It is contended'' by Mr. Bose that the letter written by the Plaintiff and caused to be sent by the Plaintiff''s Solicitor reached the Defendant No. 1. Sri Anil Ghose has deposed that it was his practice to ask the peon of his office every day about the delivery of letters. The said peon Indra admitted before him that he had delivered the said letter. This admission of I4dra was in the course of duty. Indra is now dead and so this statement of Indra made to Anil Ghose would be admissible.

It is also significant that Mr.. Sinha says that there is a register for incoming letters in the office of the Defendant No. 1. There are registers one in the General Department and one in the Tea Department. Letters received by the. Tea Department would be entered in the register of the Tea Department and letters received by the General Department would be entered in the register of the General Department. Although it has been stated by Prosad Kumar De, called on behalf of the Defendant No. 1, that there is no such register kept in the office of the Defendant No. 1. I am inclined to accept the testimony of Mr. Sinha and. hold that there is a register for incoming letters at the Tea Department as also a separate register for incoming letters at the General Department of the Defendant No. 1. The said registers have not been produced. In the premises, I draw adverse inference and hold that if the said registers were produced that would have proved the receipt of the said letter dated January 15, 1962, by the Defendant No. 1. It has also-been commented by Mr. Bose that Mr. Bannerman has not come to give evidence in this case. With regard to the alleged assurances and representations the Plaintiff has stated in answer to Qs.80 to 87, 112 to 118, 127 to 129 in examination-in-chief and in answers to Qs. 222 to 231, 375 to 398 in cross-examination. The gist of the said representations and assurances are that the Plaintiff was told or assured- that he would be with the Defendants as long as the Plaintiff wanted to be with them. His contract would be renewed (See Q. 84). The Plaintiff was assured that he would never be dismissed without showing cause for the same. The Plaintiff has further stated in answer to Q. 96 that he was assured by Mr. Sinha that his services would be automatically renewed and if there were no complaint against him he would not be dismissed. He had recorded the said assurances in the said letter dated January 15, 1962. The said letter dated January 15, 1962, appears at p. 37 of Ex. A. The relevant portion of the said letter dated January 15,.1962, which appears at p. 37 is to the following effect:

The clause No. 9 of the draft agreement is merely a standard: clause and is never applied except in rare and extra-ordinary circumstances, and even then not without giving sufficient opportunity to clear up any case which might arise. On the other hand, my contract will be renewed in the normal course as in the case of other covenanted officers.

...I am ready to enter into the contract as presented to me in the revised draft agreement handed to me on the 12th January with slight amendments therein made in the light of the discussions I had with the Hon''ble Sinha. Accordingly, I return herewith the final draft agreement incorporating the said minor alterations.

Clause 9 has been set out with minor alternations as Clause 11 in the final agreement dated February 7, 1962. The said clause is as follows:

It is hereby mutually agreed that either party hereby may at any time during the term of this agreement give six months'' notice in writing of termination of the agreement the one to the other.

The oral evidence with regard to issue No. 3A will appear in the Plaintiff''s answers to Qs. 96, 97, 289 to 291, 313, 314, 321 to 384 and in Lord Sinha''s answer to Qs. 39 to 42, 212 to 216.

With regard to assurances Lord Sinha has said in this evidence that he never gave any such assurance nor did Mr. Bannermah give any such assurance. With regard to the letter dated January 15, 1962, Lord Sinha has said that he had never received the said letter and if he had received" the said letter he would have certainly repudiated the suggestions contained in the said letter. (See Qs. 39 to 42). Lord Sinha denied that he induced the Plaintiff to enter into this contract dated February 7, 1962, on the basis of assurances that the three-early contract would be automatically renewed. Lord Sinha stated that there was only hope and expectation that the job would continue. I am inclined to prefer the testimony of Lord Sinha to that of the Plaintiff on this point. In any event, I am of the opinion that all negotiations held and assurances, if any, that were given prior to the contract dated February 7, 1962, became merged in and varied by the written agreement dated February 7, 1962, executed by the parties.

With regard to issues Nos. 4 and 2A, the oral testimony of the parties are contained in the following questions and answers:

The Plaintiff''s Qs, 33 to 39, 43 to 54, 73 to 79, 99 to 101, 126 to 129, 156 to 161, 166 to 169, 172 to 200, 216''to 236,''239 to 260,''266 to 279, 292 to 310, 322 to 359, 400 to 405. Lord Sinha''s questions and answers--39 to 42, 163, 164, 168 to 176," 185, 186, 215 to 221.

The contract was for a fixed term. Therefore, the Plaintiff''s service was not permanent in any view of the matter. In the agreement dated February 7, 1962, the date of commencement and the date of expiration have been given.

The issues Nos. 5 and 6 are allied and should be taken up together.

From a perusal of the said letter dated March 23, 1964, which appears in Ex. A, it is evident that this is not a notice of any termination of any contract but a mere intimation. On issue No. 7 the document dated March 31, 1964, appearing at p. 60 of Ex. A, is relevant. The reply to the said letter dated April 2, 1964, at p. 71, is also relevant. The oral evidence on the point is the Plaintiff''s answer to Qs. Ill to 118, 375 to 384. Lord Sinha''s Qs. 43 to 47, 203 to 209. I am inclined to accept the testimony of Lord Sinha on this point. The said testimony is consistent with the letters that passed between the parties. Although the additional amenities were not the subject matter of any of the written contract the said amenities were mentioned in the letters. On the said additional amenities the oral evidence will appear from the Plaintiff''s answers to Qs. 26 to 30, 40, 41, 55 to 57, 67, 162 to 165 ; Lord Sinha''s Qs. 131 to 146, 184 to 193.

The issues Nos. 8, 9 and 10 should go together. The Plaintiff has admitted in answer to Qs. 137 to 141 that he was the employee of the Defendant No. 2. The contract dated February 7, 1962, says that the Plaintiff was the employee of the Defendant No. 2. The Defendant No. 1 is a party to the said agreement as the agent of the Defendant No. 2. Mr. Amiya Nath Bose''s contention is that the contract between the parties was partly oral and partly in writing. Therefore, the oral evidence given cannot be accepted inasmuch as the tenure or the period of service or employment is in express term in writing and cannot be contradicted or varied. I accept the testimony of Lord Sinha that the life policies were taken out in the hope and expectation that the Plaintiff would serve the Defendant No. 2 during the period of the life policies, but that was not a part of the contract between the parties. That expectation was subject to the continuance of the contract of employment of the Plaintiff under the Defendant No. 2. Mr. Bose cites the cases of Hussonally Sullemanji v. Tribhowandas Mangaldas Nathubhai and Ors. 25 C.W.N. 385 (395), Raja Jote Coomei Mukherjee v. Jadu Nath Bose and Anr. 26 Q.W.N. 1022, Grant v. Maddox 153 E.R. 1048X1051) and Baijnath Singh v. Rajee Vally Mohamed Rajee Abba 30 C.W.N. 242 (245). In Husson ally v. Tribhowandas 25 C.W.N. 385 there was discrepancy in the conveyance and thus ambiguity. The body of the conveyance mentioned the subject-matter of the conveyance according to plot numbers, but the schedule, mentioned the same on the basis of area and not plots. Therefore, the document was ambiguous and had to be clarified by oral testimony. The case of Raja Jote Coomer v. Jadu Nath (Supra) is the proviso 6 to Section 92; Baijnath v. Rajee Vally 30 C.W.N. 242 is a case of proviso 1 to Section 92; Grant v. Maddox (Supra) is a case of proviso 6 to Section 92. After April 1, 1961, the Plaintiff was working for an indefinite period, and thus his service had to be discontinued by a proper notice.

I am of the opinion that the evidence as to assurances and representations with regard to period of service are inadmissible in evidence inasmuch as the period or the term of service is in writing clear and unambiguous. Because of my finding, I need not deal with the authorities in detail: 11 Halsbury (3rd ed., 390), Durga Prasad Singh v. Rajendra Narayan Bagchi and Ors. 40 I.A. 223 headnote, Saiyid Abdullah Khan v. Saiyid Basharat Hussain 40 I.A. 31, Joseph Darmanin v. Carmel Micallef AIR 1946 P.O. 50, Tilakdhari Singh v. Maharaja Keshoprasad Singh AIR 1925 P.C. 123 headnote 5(a) & (b), Bomaflji Ardeshir Wadia v. Secretary of State for India in Council 56 I.A. 51, John Attwood v. Robert Small and Ors. (1838) 6 CFR. 232 and Mayor and Co. of London v. Sandan (1872) 26 L.T. 86. At the most the evidence of the Plaintiff and his averment in the plaint, that on the expiry of the period of three years'' fresh contract on fresh terms had to be entered, is merely in my opinion a plea of an agreement to enter into an agreement. The same is not enforceable.

By reason of the premises I answer the issues settled in the manner following:

(1)(a) Yes, but subject to the mutual expectation that the Plaintiff would act in the employ of the Defendant No. 1 up to superannuation.

(b) Yes.

(2)(a) No.

(b) Does not arise.

(c) Does not arise.

(3)(a) No.

(b) No.

(4) No.

(5) No.

(6) No.

(7) No.

(8) None.

(9) Yes.

(10) Yes.

(11) None.

On account of the aforesaid reasons this suit must fail and is dismissed with one set of costs including reserved costs.