K.N. Singh, J.
1. This is a defendant's application under Section 25 of the Provincial Small Cause Courts Act, 1887, against the order of the Additional District Judge, Muzaffaarnagar, exercising powers of the Judge, Small Causes Court, rejecting the defendant's objection challenging its jurisdiction.
2. The plaintiff-opposite party filed a suit in the court of the Judge, Small Causes, Muzaffarnagar, for recovery of arrears of rent and ejectment from the cinema building known as 'Taj Talkies', Muzaffarnagar, along with the electrical installations, refrigeration equipment, furniture, cooler engine and various other fittings and fixtures mentioned in the schedule to the plaint. The plaint allegations were that the plaintiff was owner of the cinema building which was constructed in the year 1971-72, and the same was let out to the defendant on rent at the rate of Rs. 4500/- per month, but subsequently the rent was reduced to Rs. 4000/- per mensem.
The plaintiff pleaded that the defendant has been in possession of the cinema since 7th July, 1972, but he failed to pay rent for a period of more than three months, thereby he committed breach of terms agreed between the parties. The plaintiff claimed decree for ejectment and also for recovery of a sum of Rs. 29000/-as rent and damages and future damages at the rate of Rs. 4000/- with interest at the rate of 12 per cent per month with effect from 7-8-1974 till the date of delivery of possession. In addition to possession of the cinema building the plaintiff claimed possession of goods including furniture, electrical goods, coolers, fixture, equipment, machinery and screen as mentioned in the schedule to the plaint.
3. The defendant contested the suit on a number of grounds. In his written statement, the defendant asserted that he was a licensee, therefore the suit was not maintainable in the court of the Judge, Small Causes. In the alternative, the defendant further pleaded that even if he was a tenant of the building, the suit in respect of the cinema business which was let out to him was not maintainable in the court of the Judge, Small Causes, and lastly, the defendant challenged the jurisdiction of the Judge, Small Causes Court to try the suit on the ground that the valuation of the suit was Rs. 81,000/-. The Court below framed two issues (1) whether the defendant was lessee in the premises in suit and (2) whether the court had jurisdiction to try the suit. The Additional District Judge who was exercising the powers of the Judge, Small Causes Court, answered both the issues against the defendant. He held that relationship of landlord and tenant existed between the parties as the defendant has been paying rent to the plaintiff at the rate of Rs. 4000/- per month treating him as landlord.
He rejected defendant's contention that he was a licensee. The trial court further held that in view of Section 25 of the Bengal, Assam and Agra Civil Courts Act, as amended by U. P. Civil Laws Amendment Act, 1'972, an Additional District Judge, while exercising powers of the Judge, Small Causes Court, had unlimited jurisdiction to try suits for ejectment and arrears of rent. The trial court rejected defendant's objection that it had no jurisdiction to try the suit as the plaintiff had not let out building as defined under the said Explanation to Article 4 of the Second Sch. to the Provincial Small Cause Courts Act as along with the building, furniture, fixture and electrical installations and machinery was also let out to the defendant. Thereupon the defendant preferred this revision challenging the order of the Additional District Judge.
4. Learned counsel for the defendant has urged that the Additional District Judge's finding that the plaintiff had let out only building and not the running cinema business are not in accordance to law. He urged that along with the building the plaintiff had let out machineries and other fittings necessary for running cinema business. The defendant's tenancy was not in respect of a building as defined under the Explanation to Article 4 of the Second Sch. to the Small Cause Courts Act, therefore the Judge, Small Causes Court had no jurisdiction to entertain the plaintiff's suit. In order to appreciate the contention, it is necessary to refer to the provisions of the Small Cause Courts Act, 1887, (hereinafter referred to as the Act). Section 15 of the Act provides for the cognizance of the suits. Court of Small Causes had no jurisdiction to take cognizance of suits specified in the second schedule as those are excepted from the cognizance of the Court of Small Causes. Sch, II to the Act specified suits which are excepted from the cognizance of a Court of Small Causes. Article 4 of the Schedule as amended by the U. P. Civil Laws Amendment Act 1972, (U. P. Act XXXVII of 1972) is in the following manner:
'4. A suit for possession of immovable property or for recovery of interest on such property, but not including a suit by a lessor for the eviction of a lessee from a building after the determination of his lease and for the recovery from him of compensation for use and occupation of that building after such determination of the case.
Explanation:-- For the purpose of this article the expression 'building' means a residential or non-residential roofed structure and includes any land (including any garden) garages, and out-houses appurtenant to such building and also includes any fittings and fixtures fixed to the building for the more beneficial enjoyment thereof.'
Under the aforesaid provision, a suit for possession of immovable property or for recovery of interest on such property is not cognizable by a Small Cause Court, but a suit by a lessor for the eviction of a lessee from a building and for recovery of arrears of rent and compensation for use and occupation of that building on determination of lease is cognizable by the Court of Small Causes. The expression 'building' as defined by the Explanation, means residential or non-residential roofed structure including any land, garden, garage, outhouses appurtenant to such building. Any fitting and fixtures affixed to the building for the more beneficial enjoyment is also included within the expression 'building'.
If the suit in question was for eviction of the defendant from the cinema building and for recovery of arrears of rent, the Judge, Small Causes Court had jurisdiction to try the same, but if the lease was in respect of cinema business the plaintiff's suit would not be a suit for eviction from a 'building' as defined under the Explanation and the Judge Small Causes Court has no jurisdiction to proceed with the suit. The question that arises for determination is whether the plaintiff had let out the cinema building to the defendant with fittings and fixtures in the building for the more beneficial enjoyment thereof. In determining this question the terms of the lease, the dominant intention of the parties entering into the agreement is necessary to be ascertained. Before I proceed to consider this question I would refer to the principles laid down by the Supreme Court which have direct bearing on the question.
5. In Uttam Chand v. S. M. Lalwani (AIR 1965 SC 716) the Supreme Court interpreted Section 3 (a) (y) (3) of M. P. Accommodation Control Act, 1955, which defined accommodation as 'Any building or part of a building including garden, open land and outhouses appurtenant to such building or part of the building, any fittings fixed to such building or part of building for the more beneficial enjoyment thereof.' The question which arose for determination was whether the rent note executed between the parties in respect of Dall Mill Building with fixed machinery and accessories was a lease in respect of an accommodation as defined by Section 3 (a) (y) (3) of the said Act.
The Supreme Court held that the fittings in a building to which the section referred were obviously fittings made in the building to afford incidental amenities for the person occupying the building and the lease was not in respect of accommodation within the meaning of the said Act. It held that if the fixtures are not intended for the more beneficial enjoyment of the building, the lease cannot be held to be in respect of the accommodation as defined by the Act. The Court stressed that while determining the question the test of dominant intention of the parties should be applied and the court must determine character of the lease by asking itself as to what was the dominant intention of the parties in entering into the transaction.
6. In Dwarka Prasad v. Dwarka Dass (AIR 1975 SC 1758), the Supreme Court held that a lease in respect of a building equipped with machineries and other fittings for exhibiting cinematograph films did not fall within the scope of definition of 'Accommodation' as defined by Section 2 (a) of the U. P. Temporary Control of Rent and Eviction Act, 1947. 'Accommodation' as denned by Section 2 (aa) at the relevant time meant 'residential and non-residential accommodation in any building or part of a building including garden, grounds and outhouses if any appurtenant to such building or part of building, any furniture supplied by the landlord for use in such building or part of building, any fittings affixed to such building or part of building for the more beneficial enjoyment thereof.'
Applying the ratio of Uttam Chand's case, the Supreme Court considered the, dominant intention of the parties to determine the character of the lease and after considering the terms of the lease it held that fixtures and machineries affixed in the building which was let out for carrying on cinema business were not necessary for beneficial enjoyment of the building, instead the possession of the building was made over as integral part or incidental to the making over of cinema apparatus and costly appliances. Krishna Iyer, J. speaking for the Court observed (at p. 1767):
'Here the plain intendment is to encompass leases of buildings only (inclusive of what renders them more congenial) but not of businesses accommodated in buildings nor of premises let out with the predominant purpose of running a business. A lease of a lucrative theatre with expensive cinema equipment, which the latter pressed the lessee to go into the transaction, cannot reasonably be reduced into a mere tenancy of a building together with fittings which but make the user more comfortable.'
The principles laid down by the Supreme Court in the above noted cases are fully applicable to the instant case as the definition of 'building' is the same as that of 'accommodation' as defined by U. P. Act III of 1947 and the Madhya Pradesh Act, 1955.
7. The question then arises as to what was the dominant intention of the parties in the instant case when they entered into a transaction, whether only cinema building was leased out to the defendant along with the fittings and fixtures for a beneficial enjoyment of the building. Dominant intention of parties could easily be discerned from the material terms of the lease if executed between the parties. In the instant case, no formal lease containing terms and conditions of the transaction was executed. In the absence of any written document, dominant intention of the parties can be ascertained from the pleading of the parties, evidence produced by them and other circumstances available on the record. According to the plaint allegations, the plaintiff opposite party had let out the cinema building to the defendant along with a number of machineries, fixtures and accessories necessary for carrying on the business of exhibiting cinematograph films in the building.
In para 5 of the plaint, it was asserted that the plaintiff obtained licence for exhibiting cinema films in his name and necessary certificates for running cinema business and thereafter he handed over possession of the cinema building to the defendant on 7-7-1972 when the first inaugural show took place. The plaintiff claimed relief for a decree for possession of the cinema building and also for possession of machineries and fittings and accessories as detailed in the schedule to the plaint. The schedule to the plaint contains list of goods, furniture's, electrical machinery and engines, these include 702 chairs, cooling plant, screen, show cases, power and electrical cases, control room, switch boards, projectors, fire extinguishers, dosene, ceiling fans, engine petrified, made in England, complete in all respects etc.
8. Parties led oral and documentary evidence before the trial court which indicate dominant intention of the parties. Ex. A-2 is the power of attorney executed by the plaintiff and his wife Smt. Manju Rani on 21-1-1972 authorising the defendant to act on their behalf and to make applications for renewal of the cinema licence and to do all acts which may be necessary and connected therewith. Recitals contained in the document show that the lease was initially for a period of ten years, with a stipulation for renewal for a period of another five years. Ex. A-3 is a letter signed by the plaintiff and his wife Smt. Manju Rani dated 26th June 1972, addressed to the District Magistrate informing him that they had completed all the required formalities with regard to the issue of cinema licence, with a request that the name of Pooran Chand Seth be also included in the licence as they had leased their right to run the cinema, new Taj Talkies, to him under an agreement dated 21-1-1972.
Exts. 3 and 4 are letters dated 1-7-1972 exchanged between the plaintiff and defendant. On a perusal of the contents of these letters it appears that under the terms of the lease the plaintiff had agreed that some of the machines necessary for carrying on cinema business were to be fixed by the defendant while the plaintiff had let out machineries and engines fixed for the purpose of running cinema to the defendant and the plaintiff had agreed to bear the cost of maintenance of those machineries. The agreement further stipulated that if the plaintiff failed to maintain generators and all other equipment the defendant was permitted to maintain the same and charge the plaintiff for the costs thereof. Anup Singh (D. W. 1), defendant's Mukhtar-e-Am, in his testimony before the trial court stated that the plaintiff had let out running cinema business to the defendant. He asserted that even though some of the fixtures and machineries for running the cinema business had been purchased by the defendant the plaintiff had agreed to pay for the same.
The plaint allegations, relief claimed by the plaintiff and the oral and documentary evidence as discussed above clearly show that along with the cinema building the plaintiff had let out to the defendant machineries and equipments necessary for running the cinema business in the building. The screen, generator, cooling plants, engine, 702 chairs and various other fittings as mentioned in the plaint could not be necessary for beneficial enjoyment of the building. If the plaintiff had let out only cinema building to the defendant there was no occasion for letting out the machineries and furniture as detailed in the plaint. The plaintiff handed over possession of the cinema building to the defendant only after obtaining licence under the U. P. Cinematograph Act, 1965, for the purpose of exhibiting cinematograph films. This was not necessary if the cinema building alone was intended to be let out to the defendant.
9. The plaint allegations, evidence on record as well as the circumstances discussed above leave no room for any doubt that the plaintiff had not only let out the cinema building but also machinery and accessories necessary for running the cinema business in the building in question. The dominant intention of the parties when they entered into the transaction was to let out the cinema licence and the machineries and fixtures necessary to carry on the business of cinema in the building in question. The primary object which the lease was intended to cover was the cinema business including the machineries and accessories necessary for the said purpose and the building in which the machineries and fixtures were located was incidental to the primary purpose. I, therefore, hold that the lease in question was not in respect of a building as defined in the Explanation to Article 4 of the second schedule to the Small Cause Courts Act. Consequently, the Judge Small Cause Court, had no jurisdiction to take cognizance of the plaintiff's suit.
10. Learned counsel for the plaintiff-opposite party urged that the trial court's, finding that the lease in question was in respect of building was a finding of fact which cannot be set aside by this Court while exercising jurisdiction under Section 25 of the Small Cause Courts Act. It is correct to say that this Court is ordinarily bound by the findings of fact reached by the court below in proceedings under Section 25 of the Small Cause Courts Act and it is not open to this court to re-appraise the evidence to come to a different finding on questions of fact. But while exercising jurisdiction under Section 25 of the Act it is permissible to ascertain that there, is no miscarriage of justice, and that the decision of the court below is according, to law. If the Judge, Small Causes Court, records findings on inadmissible evidence or it ignores material evidence and assumes jurisdiction by recording findings on jurisdictional facts it is open to the revisional court under Section 25 of the Small Cause Courts Act to set aside those findings.
11. In the instant case, the Additional District Judge assumed jurisdiction on the findings that since the defendant had installed some of the machines necessary to run the cinema business, the plaintiff could not be held to have let out the machineries necessary to run the cinema business. He further held that the letting out of the fixtures and machineries was not the primary object and no running business was let out to the defendant, this finding was recorded without considering the material evidence available on the record, e.g. Exs. 3 and 4, which clearly show that the machineries had been let out to the defendant and those were to be maintained at the plaintiff's cost and the rent of Rs. 4,000/- included rent not only for the building but also for the machineries which had been let out to the defendant for the purpose of running of the cinema business. The learned Judge failed to consider that the plaintiff had obtained licence for running the cinema, and he had handed over the same to the defendant after obtaining permission from the District Magistrate for the purpose of running the cinema business. The Additional District Judge failed to apply the principles laid down by the Supreme Court in Uttam Chand and Dwarka Prasad's cases (AIR 1965 SC 716 and AIR 1975 SC 1758) (supra) in determining the questions raised before him. The findings recorded by the trial Judge are not in accordance with law.
12. In view of the above discussion the Judge, Small Cause Court, had no jurisdiction to take cognizance of the plaintiff's suit. The revision succeeds and is accordingly allowed and the order of the Judge, Small Cause Court, dated 24th March, 1975, is set aside and the plaintiff's suit is dismissed with costs.