K.S. Ramamurthi, J.
1. The main point that arises for decision in this case is whether the plaintiff (hereinafter called the lessees) are entitled to the benefits and protection under the Madras Buildings Lease and Rent Control) Act, 1960 (referred to herein as the Act) as amended by Madras Act (XI of 1964), in respect of a building or a Theatre known as ' Odeon Cinema '. This Cinema theatre belonged to two brothers, the first and the second defendant in equal shares and the second defendant, since dead, sold his half share to defendants 3 to 5 under a registered sale deed, dated 14th October, 1966. As certain objections were raised concerning the rights of the plaintiffs to obtain a renewal of the licence under the Madras Cinema Regulations, the Commissioner of Police, has been impleaded as the sixth defendant.
2. The relevant facts about which there is no serious controversy may be stated. The suit theatre which is now popularly known as ' Odeon Cinema ' belonged to defendants 1 and 2 and they were exhibiting pictures for several years in that theatre which Was then styled as ' Sagar Talkies '. They had also obtained the requisite licence under the relevant Cinematograph Act, getting the licence renewed periodically. About the period April 1944-45 to April 1952, one Somasundaram Chetty was exhibiting pictures in this theatre either as a lessee or with the leave and licence of the defendants 1 and 2 (hereinafter referred to as defendants). The Sahni brothers, the seniors and elders of the present partners of the plaintiff's firm, Isherdas Sahni & Bros., who were refugees from Punjab negotiated for the lease of the said theatre for a period of five years, the negotiations took some concrete shape and the main terms of the lease Were embodied in an agreement executed by the parties i.e., the defendants and one R. N. Sahni (now dead). This was followed up by a regular lease deed, (with certain changes) Exhibit P-4, dated 3rd May, 1952, executed by the defendants and Karam Chand Sahini (who is also dead) representing the Sahni Brothers. Detailed reference will be made to the terms and conditions of the lease deed. It is sufficient to state at this stage that the lease was for a period of five years upto 30th May, 1957 on a monthly rent of Rs. 4,25O with a right of renewal, at the option of the lessees, for a further period of five years. Schedule B appended to the lease deed sets out the various items, machinery, electrical machinery, talkie equipment, fittings, furniture and other accessories which Were covered by the lease. The list is fairly exhaustive and detailed and mentions all the items. In paragraph 3-A of the lease deed, it is stated that out of the monthly rent of Rs. 4,250 Rs. 2,000 was to be the rent for the premises and the building, Rs. 1,000 hire for the furniture and Rs. 1250 hire for the machinery, electrical fittings, accessories and the talkie equipment With a specific mention that the lessees wanted to take the talkie equipment as a ' Standby'. A sum of Rs. 25,000 was paid by the lessees as advance stated to be as security for the articles hired to the lessees and that the advance of Rs. 25,000 shall be adjusted towards the rent and hire for the last six months preceding the termination of the lease. The several sub-clauses in Clause 5 contain the lessees covenants. Clause 5 (i) provides that alterations, improvements, additions to the building should be made by the lessees without causing damage to the building and that when they were so made, they Would become fixtures of the building and that the lessees would not be entitled to remove them at the termination of the lease, but that the lessors should be entitled to the same without any liability to pay any compensation therefor. Clause (f) provides that the lessees shall take proper care of the furniture and other fittings, machinery, talkie equipment and accessories and that if any damage is caused to the same, except by reasonable use and Wear, the lessees, shall replace the same or compensate the lessors for the value thereof. Clause 5 (7) provides that the lessee shall not dispose of or otherwise remove from the building (Without the consent of the lessors) any of the furniture, electrical fittings, fixtures which existed in the building at the time of the lease or may be hereafter (meaning after the lease) be provided upon the premises in substitution thereof except the talkie equipment. Clause 5 (p) provided that at the time of the determination of the lease, the lessees shall yield up the demised premises with the existing fixtures, electrical fittings, furniture, etc., set out in Schedules A and B appended to the lease or the substitutions thereof and that in default of doing so, the lessees shall pay Rs. 300 per day on such default.
3. It is unnecessary to advert to the terms of Exhibit P-2, dated 2nd April, 1952 which the parties put into Writing when the lease was agreed upon, as the regular registered lease deed Exhibit-P-4 which Was executed a month later embodies (with some modifications) in detail, all the terms and conditions of the lease, mentioned above. It is important to advert even at this stage to the two projectors with talkie equipments; (1) 'Simplex' Projector and talkie equipment which was no longer in use and referred to as stand-by equipment; and (2) ' Westrex' Projector with talkie equipment which was obtained under a hire-purchase agreement from Messrs. Westrex Company even during the time of the prior lessee, Somasundaram. As a result of and as part and parcel of the lease deed, Exhibit P-4 it was agreed between the parties that the lessees should pay to the lessors the instalments of hire-purchase paid up till then to Westrex Company and that the lessees should also continue to pay the entire future instalments as and when they accrued due. The substance of the arrangement was that so far as the Westrex Projector and talkie equipment were concerned, they are the properties of the plaintiffs. On this aspect, it is sufficient to refer to Exhibit- P-1, dated 25th March, 1952, the letter passed by Somasundaram to the defendants; Clause 3 of Exhibit P-2, dated 2nd April, 1952, and Exhibit P-3 a letter, dated 5th April, 1952 passed by the defendants to the plaintiffs; Exhibit P-74, dated 4th September, 1952, a letter by the Westrex Company, India to the defendants; Exhibit P-90 a transfer voucher showing a cheque, dated 28th October, 1952 given by the plaintiffs to the defendants for a sum of Rs. 7000 and Exhibit P-120 showing the instalments of payments made by the plaintiffs to the Westrex Company. By the end of 1954, the plaintiff became the full-fledged and absolute owners of this Westrex Projector and talkie equipment, they having paid to the defendants the sum of Rs. 7,000 and the entire balance of instalments, to the Westex Company. Exhibit P-120 extract shows that the plaintiffs, in addition to the price of the talkie equipment, have spent and incurred several items of expenditure with regard to the change of lenses and other component parts making a total of Rs. 59,500 towards the capital investment and expenses incurred under this head-Mr. Govind Swaminathan, learned Counsel for the defendants fairly conceded that so far as the Westrex talkie equipment Was concerned, the case could be dealt with on the footing that it belonged to the plaintiffs and that as per the conditions of the lease deed, the lessees would be entitled to remove and take them at the termination of the lease deed and that the lessors will not have any right or claim thereto.
4. To continue the narrative, the lessees took possession of the theatre and effected considerable improvements, spending large sums of money in connection with Various items, interior decoration, electrical fittings, sanitary fittings, furniture, gates, etc. From the extracts of the entries all culled out from the account books, it is seen that the plaintiffs have invested about Rs. 1,16,000 and odd under the various items.
1. Amount paid by Westrex Equipments per hire-Pur- Rs. Ps.chase Agreement including Rs. 7,000 paid to defen-dants 1 and 2 (Exhibit P-120) .. 36,024-1-0Amount paid to Westrex Company for other purchases like lenses, screen, etc. .. 20,115-7-02. Fire Extinguishers purchased (Exhibit P-33) .. 723-4-63. Electric Fittings paid to G.E.C. (Exhibit P-120) .. 4,758-5-0Modi & Modi for fans and other electrical fittings,etc. (Exhibits P-41, P-47 & P-48) .. 2,917-0-6Patel Electric Co. (Exhibit P-62) .. 5,045-12-04. Interior decoration including ceiling 10,690-4-05. Sanitary fittings .. 2,255-0-06. Furniture Pen Workers .. 30,443-15-0Other furniture including office furniture .. 3,987-10-3TOTAL .. 1,16,960-11-3.
The entire seating arrangement was changed and except for a few items, the entire furniture had been replaced by new furniture which the plaintiffs purchased from ' Pen Workers' the furniture company, in Bombay. As observed earlier, the plaintiffs changed the name of the theatre from ' Sagar Talkies ' to ' Odeon Cinema '. In fact, even though the lease was executed on 3rd May, 1952, the plaintiffs did not screen any picture in the theatre immediately, but took up the Work of renovation, remodelling and improvement of the theatre, and it was only' on 27th June, 1952 that the first show commenced in the theatre preceded by a grand opening ceremony on the previous day on 26th June, 1952.
5. In the initial stages of the trial, there was some controversy as to the exact date on Which the plaintiffs as lessees, screened of exhibited their first picture in the theatre. The defendants' case was that the plaintiffs screened a picture called ' Notch ' on and May, 1952 for a week. On the other hand, the case of the plaintiffs Was that immediately after the lease transaction was entered into, they plunged into their work of remodelling, improving and renovating the theatre, that it was only after the entire Work was complete that they had a grand opening ceremony on 26th June, 1952 by late Dr. M.V. Krishna Rao, the then Minister for Education and that the regular screening of the picture commenced only on 27th June, 1952. 'The evidence on the side of the plaintiffs is overwhelming and conclusively established that the opening ceremony function was on 26th June, 1952 and the first picture was screened only on 27th June, 1952. In the course of the arguments of learned Counsel for the defendants, I noticed that they did not seriously press this point. I will advert to the documentary evidence little later; it is sufficient to state at this stage as a part of the narrative, that the plaintiffs effected vast improvements and renovation in the structural, seating and sanitary arrangements in the theatre, practically replaced the entire furniture with new seating and other facilities-vide also Exhibit P-166, the extract of the news in the Indian Express issue, dated 28th June, 1952 containing the news of the function and the substance of the Minister's speech and the compliments paid by him about the enterprising work of the plaintiffs. I may also add at this stage that learned Counsel Mr. Govind Swaminathan, more than once, conceded that the plaintiffs who were experienced in this business line in Cinema had made this theatre a first class one spending huge sums of money including air conditioning of the entire theatre at a cost of two lakhs and more. .
6. The plaintiffs exercised their right of renewal, for a further period of five years as provided in the lease deed (Exhibit P-4 , by their letter Exhibit P-21, dated 24th October, 1956. This was immediately followed up by the Exhibit P-I22, dated 25th October, 1956, an agreement entered into between the parties to the effect that a new lease deed shall be entered into for a further period of five years with effect from 30th April, 1957 to 30th April, 1962, with an option for a further period of five years on the same terms provided a notice of six months is given by the lessees exercising their option on or before 31st October, 1961. This agreement Exhibit P-122 contained a clause that if the lessees put up an air-condition plant, the lessors shall have no claim or right thereto and that if the lessors were not prepared to pay the market value prevailing at the termination of the lease, the lessees shall be at liberty to remove the said air-condition plant. In pursuance of this, the second registered lease deed, Exhibit P-I24, dated 22nd April, 1957 came into existence. The main points in controversy centre round the effect and the operation of the terms and conditions of the second lease deed concerning the question of the character of the lease, Whether composite or otherwise, and I shall refer to these matters in greater detail later. It is necessary, however, to emphasise that the terms of the second lease deed Exhibit P-I24 are line by line Verbatim reproduction of the first lease deed, Exhibit P-4, except the necessary change in the dates and the period when the lease Would terminate. The curious feature that requires to be mentioned is that Schedule B of P-124 which sets out the machinery, talkie equipment, fittings furniture and other accessories is identical (without any change whatsoever) as the Schedule B appended to the original lease deed, Exhibit P-4, even though it is beyond controversy that the schedule in the second lease deed has no relation whatsoever to the conditions existing at the time of the second lease deed with regard to the furniture, with regard to the fittings, with regard to the electrical fittings, with regard to the sanitary arrangements etc. etc. Schedule B in the second lease deed is simply a mechanical parrot-like repetition. On the same day, the defendants had passed a letter, Exhibit P-I25, of crucial importance, to the plaintiffs, to the effect that item VI of Schedule B, meaning thereby, the stand-by talkie equipment, shall be retained by the plaintiffs, as their own, on the termination of the lease either in 1962 or on renewal in 1967 and that the defendants shall have no claim or right thereto after the termination of the lease. The old furniture which existed in the theatre and which were removed at the commencement of the lease, were kept in some portion of the premises and were sold by the plaintiffs in the end of April, 1962 for a sum of Rs. 1,400 vide Exhibit P-13O, dated 26th April, 1962 and Exhibit P-131, dated 9th May, 1962. In the meanwhile, the plaintiffs exercised their option by their letter, dated 29th August, 1961 (addressed to the defendants claiming a renewal for five years from 1st May, 1962 to 30th April, 1967 and under Exhibit P-129, dated 7th April, 1962 the defendants agreed to the aforesaid renewal for a period of five years till 30th April, 1967. A regular lease deed, however, does not appear to have been executed between the parties in view of the fact that the defendants had taken legal advice which was to the effect that no registered lease deed was necessary for the period 1st May, 1962 to 30th April, 1967 and that consent by the defendants given in their letter, dated 7th April, 1962 to the renewal of the lease for five years, Was. sufficient.
7. The next event, is the sale deed executed by the second defendant conveying, his half share in the theatre to defendants 3 to 5 under a sale deed, dated 14th October 1966 for a price of Rs. 3,70,000 (the sale deed has been filed, but not .marked as an. Exhibit as all the parties are agreed that the sale Was subject to all the obligations of the vendor in respect of the lease in favour of the plaintiffs. Here again, it is necessary to mention an important fact (which again is a matter of admission by all the parties) that the schedule to this sale deed concerning fittings, fixtures, furniture, talkie equipment, accessories, etc. etc., is a mechanical parrot-like repetition of the schedules in the two lease deeds, Exhibits P-4 and P-124 and that under the sale deed what is conveyed to the purchasers, as described in the schedule, is those old items only having no reference whatsoever to the actual factual position existing in the theatre on the date of the sale deed. The sale deed does not convey to the purchasers any possible right, if any, which the vendor may have in respect of the new furniture, fittings, accessories, renovations, fixtures, etc. which the lessees had brought into the theatre at the time of the commencement of the lease in May, 1962 as well as subsequently thereafter. As a result of the sale and subsequent correspondence, the lessees have agreed to and have become liable to pay one half of the rent to the first defendant and the other half to defendants 3 to 5, with the result that defendants 3 to 5 have stepped into the shoes of the second defendant.
8. Last in the chain of events, is the attempt made by the plaintiffs to get the licence renewed by the Commissioner of Police with effect from 30th April, 1967, the time-limit under the renewed lease P-124. The Commissioner of Police informed the plaintiffs by Exhibit P-148, dated 27th February, 1967, that the renewal of the licence would be considered only if a fresh lease deed extending the lease period beyond 30th April, 1967, was produced and a copy of this communication was also sent to the Commercial Tax Officer, Madras, as well as the Chief Electrical Inspector of Government of Madras. During this period , the plaintiffs took up the position that they were entitled to the protection under the Rent Control Act, that no lease deed as such from the lessors was necessary; while the lessors objected on the ground that the plaintiffs were not entitled to the benefits of the Rent Control Act. The letters written by the lessees to the Commissioner of Police, Exhibits P-150, P-151, P-152, P-154, P-155 and P-156 contain the aspects stressed by them before the Commissioner of Police and how the defendants were objecting to the renewal of the lease as a result of which the Commissioner of Police finally refused to renew this licence under Rule 13 of the Madras Cinemas Regulation Rules on the ground that the plaintiffs were not in lawful possession of the theatre. The result was, that : the plaintiffs were obliged to file the present action on 18th April, 1967, for establishing their rights as statutory tenants entitled to the benefits of the Madras Buildings (Lease and Rent Control) Act, 1960 and their lawful possession of the theatre within the meaning of Rule 13 of the Madras Cinemas Regulations Act and also for an injunction against the defendants restraining them from interfering with the plaintiffs'' rights and enjoyment of the theatre.
9. It is not necessary to refer in detail to the written statements of the defendants. Their substantial objection is that the lease in question is a composite lease, not a lease of a mere building, within the meaning of the Madras Buildings (Lease and Rent Control) Act and that on the expiry of the lease in April, 1967, the plaintiffs were not entitled to any rights to continue in possession claiming rights as statutory tenants.
10. Before I proceed further, I may state one point (to clear the ground of some controversy which existed at the stage of pleadings). Learned Counsel for the plaintiffs accepted the position that the old furniture which existed in the theatre and which were removed by the plaintiffs were sold by the plaintiffs in the end of April, 1962, and realised a sum of Rs. 1,400 and that the statement in the plaint that the old furniture which were kept aside were removed by the lessors is not a correct statement. Again, the statement in the plaint that the stand-by equipment, Item No. VI, was not handed over to the plaintiffs under the lease deed is not quite correct. What had actually happened was that when in pursuance of the hire-purchase agreement, the Westrex projector was installed, the Simplex Projector had been dismantled and placed in a room in the theatre, and that was why it was referred to as stand-by equipment in the lease deed, and that that stand-by projector is not there now. In other words, so far as the stand-by equipment was concerned, the plaintiffs had a legal right and could have used the same in case there was any occasion arising if the Westrex Projector should give any trouble. The senior partners i.e., the Sahni Brothers, Karamchand Sahini and Roshanlal Sahni are now dead and there is no question of the plaintiffs withholding the evidence of any material witness. I may also refer to the Arc Lamps about which sonic stress was laid in the course of the evidence and arguments. Arc Lamps is necessary for the projector and it will work only with D.C. current. For generating D.C. current, there is a generator, dynamo and an electric motor. Instead of using the generator, the dynamo and the electric motor, for developing D.C. current, a rectifier can be used for converting A.C. current into D.C. current. The defendants case is that this generator to which particular reference was made in the Schedule B appended to the lease deed was being used by the plaintiffs even when they were using the Westrex talkie equipment at the time when the lease deed, Exhibit P-4 took effect, and it was only several years later, that the plaintiffs began using rectifiers giving up the generator, the dynamo and electric motor. The plaintiffs would, however, urge that all throughout right from the time the lease Exhibit P-4 took effect, the plaintiffs were using only rectifiers and never used the generator, the dynamo and the electric motor. It does not matter as to when exactly the plaintiffs started using the rectifiers in view of the fact that the schedule to the lease deed expressly takes in the generator carrying with it, the plaintiffs' rights to use the same if they liked and it is not the concern of the lessors, whether the plaintiffs used the generator and if so when.
11. It is not in dispute that by reason of the provisions of Madras Act (XI of 1964), the plaintiffs would be entitled to the benefits of the main Madras Buildings (Lease and Rent Control) Act (XVIII of 1960), provided they establish that (1) they are ' tenants ' under that Act and (2) tenants of a ' building ' within the meaning of the Act. The definition of 'tenant' includes any person who continues in possession after the termination of the tenancy in his favour. ' Building '' is defined as meaning any building or part of a building or shed let or to be let separately for residential or non-residential purposes including any furniture supplied by the landlord for use in such building (unnecessary portions omitted).
12. Learned Counsel for the defendants relied upon the Bench decision of this Court reported in Raja Chetty v. Jagannadhadas : (1949)2MLJ694 what is known as Maharani Talkies case-in support of the contention that the lease of the theatre in the instant case is governed by the principle of that decision and that the lease in the instant case is a composite lease to which the provisions of the Rent Control Act would not apply. In that case what was leased was the theatre and all the fixtures, fittings, cinematograph talkie equipment, machinery, furniture, scenery and things in, upon and above the said theatre specified in the inventory. The monthly rent and a hire was fixed at Rs. 3,200 made up of (1) Rs. 1,500 rent for the ground and superstructure, (2) Rs. 800 hire of furniture and (3) Rs. 800 hire of talkie equipment, machinery, fittings and fixtures. The lease also contained a clause that the lessees shall yield up and deliver to the lessors on the termination of the lease the demised premises together with the fixtures, fittings, talkie equipments, machinery, scenery, articles, etc. including the additions and the alterations, whether they maybe lessors' or lessees' fixtures taking in all effects which shall be brought upon the said theatre in addition thereto or substitution thereof. The lease was for a period of five years commencing from October, 1948. As the lessees committed default in the payment of rent in April, 1949 the lessors filed an application under the Rent Control Act for eviction of the tenant on the ground of wilful default in payment of rent. The Appellate Authority ordered eviction holding that the Act applied to the lease in question. In an application for the issue of a writ of certiorari this Court set aside the order of the Appellate Authority holding that the lease was a composite lease and was therefore outside the purview of the Act. Before the Bench it was urged that the lease deed must be split up as consisting of three separate transactions (a) the lease of the ground and superstructure for Rs. 1,600, (b) hiring of the furniture on a monthly hire of Rs. 800, and (c) a hiring of the talkie equipment, machinery and fittings on a monthly hire of Rs. 800. This argument was rejected by the Bench on the ground that this splitting of the rent in the lease deed was purely notional and nominal and was resorted to reduce the property tax liability and for other extraneous considerations and that the attempted division of the lease and reparation of the rights was in highest degree artificial, never contemplated by the parties. The Bench ultimately held that the lease was not a mere lease of the building and furniture of the sort covered by the definition in the Act, but a lease of a land and building together with the fixtures, fittings, 'talkie equipment', machinery, etc.
13. Learned Counsel for the defendants also relied upon the Bench decision of this Court in Om Prakash Gupta v. Commissioner of Police : (1960)2MLJ50 where in respect of a lease of a cinema theatre with the building, furniture and equipment under similar circumstances (Rajakumari Talkies case) the same view was taken by the Bench of this Court consisting of Rajamannar, C.J. and Basheer Ahmed Sayeed, J. following decision in Raja Chetty v. Jagannadhadas : AIR1950Mad284 .
14. Learned Counsel also drew my attention to the Bench decision of the Andhra Pradesh high Court in Venkayya v. Subba Rao (1956) An.W.R. 1093 : A.I.R. 1957 Andh. Pra. 619 Which dealt with the case of a lease of groundnut oil mill comprising besides the building thereon, the machinery, plant of considerable value installed in the building all being required and used for the purpose of manufacturing oil out of groundnuts and other oils seeds. The Andhra Pradesh high Court applied the principle of the decision of this Court in Maharani Talkies case as well as an unreported Bench decision of the Andhra Pradesh high Court Which dealt with a lease of a cinema theatre comprising the buildings, furniture and the equipment necessary for the exhibition of the films. Reliance Was also placed by learned Counsel for the defendants upon another Bench decision of the Andhra Pradesh high Court reported in A. N. Shah v. Annapurnamma : AIR1959AP9 in Which again, following the Bench decision of this Court, it was held that a lease of a picture house together with furniture, electrical fittings and other items Was a composite lease of the talkie house and cannot be split up as contracts of lease, contracts of hire and that it was not a lease of a building within the meaning of the Act The items of properties leased as noticed in that judgment appear to be of the same pattern as m the case in Raja Chetty v. Jagannathadas : AIR1950Mad284 . The Bench was also of the view that the definition of the building includes only furniture and not ' fittines ' and therefore the lessee Would not be entitled to the protection under the Act In view of the Bench decisions of this Court, which are binding upon me it is unnecessary to refer in detail to the decisions of other Courts in which a contrary view was taken. I will only merely advert to the latest Bench decision of the Calcutta high Court in D. S. Jam v. Meghamaia Roy 68 CW.N. 1136 in Which it was held, following the earlier decision of the same high Court in Kali Prasad v. Jagadish Pada : AIR1953Cal149 that the lease of a furnished and well-equipped cinema show house and the building, the furniture and the machines and the machinery etc., all constitute its essential and integral parts of the components, that they cannot be regarded separately or as distinct or different units, that they are all linked up together by the lease itself of the entire lease of the premises within the meaning of the West Bengal Premises Tenancy Act and the fact that different items covered by the lease deed belonged to different persons who granted the lease as joint lessors would not affect the applicability of the Act. The west Bengal Act used the expression 'premises ' which I think does not make any difference. It is true that in both the Bench decisions of the Calcutta high Court, no reference Was made to the earliest Bench decision of this Court in Raja Chetty v. Jagannathadas : AIR1950Mad284 .
15. Even at this stage, it is necessary to refer to a recent unreported decision of Natesan, J., in Second Appeal No. 1544 of 1963 in Which the learned Judge after considering the precise scope of the Bench decision of this Court in Raja Chetty v. Jagannathadas : AIR1950Mad284 and the Bench decision of the Andhra Pradesh high Court in A N. Shah v. A. Annapurnamma : AIR1959AP9 held that a lease of a cinema theatre with all furniture, fittings (electric and otherwise) and accessories without the talkie equipment)' Would be governed by the provisions of the Act as a lease of a building The learned Judge has examined, in detail, the provisions of the Act and the Rules framed in 1960 for the purpose of fixation of fair rent as well as the principle of the decision of the Supreme Court reported in Karnani Properties Ltd. v. Miss Augustin : 1SCR20 which dealt with a case arising under West Bengal Premises Rent Control Act In that case, S.A. No. 1544 of 1963, a cinema theatre known as Murali talkies situate in Arcot (North Arcot District) was leased for a period of five years and the lessor filed a suit in ejectment after the expiry of the period of five years and the question Was whether it Was a lease of a building governed by the Actor a composite lease coming within the principle of the decision in Raja Chetty v. Jagannathadas : AIR1950Mad284 As I shall presently show, the decision of Natesan, J. directly applies to the facts of the instant case and with great respect, I am of the view, that it lays down correct law and ought to be followed. The fact that in that case the cinema theatre was situate not in a big city nor the fact that the monthly rent Was fixed at Rs. 200 nor even the fact that the items of furniture, electric fittings, fixtures, and other accessories are of less value or small in number cannot possibly affect the principle laid down therein. I find it impossible to accept the summary suggestion of Sri R. Ramamurti Iyer that, that Was a small theatre and that the principle in that case cannot furnish a proper precedent for the instant case. It is needless to observe that that approach is a. very dangerous and unsatisfactory way to appreciate the principles and the law laid down in that decision. After a detailed and careful scrutiny of the provisions of the Act and the Rules, the learned Judge has held that the fact that 'building' in the Act has been defined as including furniture supplied by the landlord for being used in the building but not making any express reference to the fittings will not make any difference and that the lease of a building with the furniture and the fittings in such a building Would undoubtedly be a lease of a building coming under the definition clause. There are several provisions in the Act as well as the Rules framed thereunder in 1961 which leave no room for doubt and lead to the clear conclusion that the building under the Rent Control Act would take in the lease of a building along with the furniture, fixtures and the fittings in the same. In the first place, it may be noticed that the definition of ' building ' is an inclusive definition and it should be given the meaning or interpretation which would achieve the purpose of the Act and should not receive any restricted meaning Which would frustrate the very scheme or object underlying a beneficial or social legislation of this kind, and Would also exclude practically a major portion of the buildings from the purview of the Act vide Jivabhai Purshottam v. Chhagan Karson : 1SCR568 . It must also be borne in mind that the Act applies to buildings let for residential as well as non-residential purposes and any restricted interpretation of the word ' building ' would almost exclude from the operation of the Act, all buildings let out for non-residential purposes. If I may say so, the Act would be rendered inapplicable to all buildings let out for non-residential purposes if the definition of the building should exclude fittings and fixtures kept or attached to the building though, essentially for the use of the building. Section 3 deals with vacancies arising of buildings. Section 3, Sub-section (5) runs as follows : -
If the building is required for any of the purposes, or for occupation by any of the officers specified in Sub-section (3), the landlord shall deliver possession, of the building and the fixtures and fittings in or on the buildings, in good tenantable repairs and conditions to the authorised officer, or to the allottee named by the authorised officer, as the case may be and the Government shall be deemed to be the tenant of the landlord, with retrospective effect from the date on which the authorised officer received notice under Sub-section (1) or Sub-section (2), the terms of the tenancy being such as may be agreed upon between the landlord and the tenant and in default of an agreement, as may be determined by the Controller.
And the third proviso to Sub-section (5) provides that the fair rent shall be fixed in accordance with the provisions of the Act or in such manner as may be prescribed. Section 4 Which deals with fixation of fair rent provides that in the case of the fixation of fair rent for any non-residential building, allowance may be made for consideration of locality in Which the non-residential building is situated, features of architectural interest, accessibility to market, nearness to the railway station and such other amenities as may be prescribed and for a purpose for which the non-residential building is used. Reference may next be made to Section 17 of the Act which prohibits the landlord from cutting off or withholding of any of the amenities enjoyed by the tenant. What is important to note is the Explanation to that section which defines the expression ' amenities ' in the section as including supply of water, electricity, passages, staircases, lights, lavatories, lifts and conservancy or sanitary services. The importance of electric lifts in this context must be borne in mind. It is thus abundantly clear that there are several provisions in the Act which show that a building Will include furniture, fittings, fixtures and other amenities intended for the tenant's more beneficial enjoyment of the building.
16. When we come to the Rules, the same inference follows. The Rules provide for various matters including the fixation of fair rent in which allowance has to be for the various amenities provided in the building, residential and non-residential. Rule 7 provides that when the authorised officer fixes a fair rent he must have due regard inter alia to the common amenities such as water, sanitation, water taps, electric points, fans, staircases etc. This emphasises that a building tinder the Act Would necessarily take in the electric fittings. Explanation I to Rule 9 shows that the furniture, fittings and electrical fittings and other accessories are regarded as forming part of the building emphasising that what is leased is the lease of a building and not a composite lease as a lease of a building and a separate lease of the furniture, fixtures, fittings etc. It is necessary to extract hereunder rule No. 10 and rule No. 13, regarding allowances that are to be made for amenities provided thereunder while fixing the fair rent.
'Rule 10.-Allowances to be made for amenities in respect of residential buildings.- When calculating the cost of construction of residential buildings, allowances shall be made for the following amenities in addition to those specified in Section 4 (2)
1. Air-conditioning ;
2. Side dados ;
3. Tube lights ;
4. Number of electric points ;
5. Fans ;
6. Plastic emulsion coating for walls ;
7. Compound walls;
8. Gardens ;
9. Wells ;
10. Overhead tank;'
11. Electric pump for water ;
12. Flush-outs ;
13. Porch ;
14. Ventilators ;
15. Fixed Wash basins ;
16. Fixed bath tubs ;
17. Playgrounds ;
18. Badminton Court and tennis Court;
19. Additional stair-cases ;
Rule 13 : -'Allowances to be made for amenities in respect of non-residential buildings. When calculating the costs of construction of non-residential buildings, allowances shall be made for the following amenities in addition to those specified in Section 4 (3).
2. Lifts ;
3. Electric fans ;
4. Tube lights ;
5. Number of electric points;
6. Fans ;
7. Ventilators ;
8. Electric pump for water ;
10. Fixed wash basins ;
11. Additional stair-cases;
12. Garden or vacant ground appurtenant to the building enjoyed by the tenant; and
13. Usufructs of trees, if any, enjoyed by the tenant.
In arriving at the proper meaning of the Word ' building ' the popular, fair and common sense meaning has to be given to that Word as otherwise almost every building Would get de-controlled. If I may say so, it will be making non-sense of the Act to say that if a building With furniture and electric fittings and the amenities as provided in the Act and enumerated in the Rules is leased out, it is not a lease of the building. The fittings and the fixtures and the other amenities provided, are all related and referable to, and only to, the particular use to which the non-residential building is proposed to be put. Applying the tests propounded by the Supreme Court in Uttamchand v. S. M. Lalwani : AIR1965SC716 to Which detailed reference will be made later, in the instant case all the furniture and fittings Were provided for the more beneficial enjoyment of the building and not for the more beneficial enjoyment of any other thing, i.e., either the stand-by cinema equipment or the generator, even assuming that they should be considered as independent of the building and distinct objects of lease like the lease of machinery of Dal Mill. In this context reference must be made to the decision of the Supreme Court in Karnani Properties Ltd. v. Miss Augustine : 1SCR20 the principle of which has been applied by Natesan, J. That case arose out of an application filed by the tenant for the fixation of fair rent under the West Bengal Rent Control Regulation. The tenant Was occupying one of the flats which contained a number offans and plug points, and the tenant Was also entitled without any additional charge to the consumption of electric energy for lamps, fans, oven for cooking, laundry and refrigerators. There were also lifts in the building to the use of Which also the tenant was entitled. The landlord, in View of these many amenities, contended that the Rent Control Act Would not apply to the tenancy in question. From the decision of the Rent Control authorities (to which it is unnecessary to refer) the matter Went to the high Court which awarded relief in part and the landlord took up the matter to the Supreme Court. One of the substantial points which was argued before the Supreme Court was that the West Bengal Rent Control Act did not apply to the premises in question. In dealing with that question the Supreme Court pointed out that the definition of ' the premises ' (it is significant to note that the definition of ' premises ' in West Bengal Act is the same as in the Madras Act except in addition to the furniture, ' fittings ' also is included) is very wide and the fact that special amenities and facilities and conveniences were provided would not take the building out of the purview of the Act. The matter Was put in these terms at page 312:
Under this head the question reduces itself to this : whether if by a stipulation between the landlord and the tenant the landlord agrees to provide for additional amenities like electric power for consumption and such other facilities the case is taken out of the operation of the Act. The Act is intended ' to make better provision for the control of rents of premises '. It has defined' premises ' in very wide terms, as pointed out above. Hence it is difficult, if not impossible to accept the contention that the Legislature intended the provisions of the Act to have a limited application, depending upon the terms which an astute landlord may be able to impose upon his tenants. In order fully to give effect to the provisions of the statute, the Court has to give them the widest application possible within the terms of the statute. Having these considerations in view, We do not think that the supply of the amenities aforesaid Would make any difference to the application of the Act to the premises in question.
After referring to the relevant decisions in England, it Was further observed as follows:
Their Lordships of the Court of Appeal repelled the contention that the additional payment Was not part of rent and held that the payment in respect of the additional amenities aforesaid was also part of rent within the meaning of the English Act which corresponds to the Bengal Act. Those English decisions are authorities for the proposition that ' rent' included not only what is ordinarily described as rent in an agreement between a landlord and a tenant but also payment in respect of special amenities provided by the landlord under the agreement between him and his tenant. The term 'rent' has not been defined in the Act. Hence the term must be taken to have been used in its ordinary dictionary meaning. If, as already indicated, the term ' rent' is comprehensive enough to include all the payments agreed by the tenant to be paid to his landlord for the use and occupation not only of the building and its appurtenances but also of furnishing, electric installations and other amenities agreed between the parties to be provided by and at the cost of the landlord, the conclusion is irresistible that all that is included in the term ' rent ' is within the purview of the Act and the Rent Controller and other authorities had the power to control the same. In view of these considerations we overrule the first contention raised on behalf of the appellant.
It is clear that the term 'rent' is comprehensive enough and very wide, and includes all payments agreed to be made by the tenant in respect of the enjoyment of the building and for all the amenities provided for the more beneficial and convenient enjoyment of the building. In other words the fact that the landlord provides additional amenities will not make the premises anytheless a ' building ' within the meaning of the act and the payment of money anytheless ' a rent ' within the meaning of the Act. From this decision it Will be at once apparent and evident that unless it is a lease of a ' building ' the Rent Controller will have no jurisdiction to fix the fair rent for otherwise, the parties will be bound by the terms of the tenancy and if the tenant or landlord desires a revision of the rent either should only go to the ordinary Courts of the land to enforce his or their rights, if any. I am of the view that it is necessarily and clearly implicit in this decision of the Supreme Court, that provision for various amenities will not in any way affect the character of the premises, seeing that all those amenities are in relation to building only.
17. I must next refer to the note of warning and the rule of law to be followed in the interpretation of and in giving effect to the terms of a lease entered into between a. landlord and a tenant. It is well settled that where the question is Whether the tenancy in question is governed by the Rent Control Act, it is not competent to the tenant to bargain and agree to give up his rights under the statute, and that any attempt to get over that restriction in the matter of freedom of contract (so far as the tenant is concerned). Courts will not permit nor recognise the tenancy agreements cleverly couched in an attempt to evade or avoid the applicability of the Rent Control Act. These Acts are remedial measures, legislations conceived for the protection and Welfare of tenants, to guard against unreasonable eviction and collection of excessive rents and the object of the legislation will be easily frustrated and defeated if the tenants are permitted to enter into contracts giving up the protection afforded under the Act. That is the reason why in all these statutes we find the non-obstante clause overriding any contract to the contrary. In all such matters, Courts have scrutinised the terms of the tenancy and found out the truth or the real bargain between the parties, ignoring, if necessary, the particular stipulation and the language employed in the lease deed. This aspect has also been emphasised in the decision of the Supreme Court referred to above, in which it was observed that (1) the question of the applicability of the Act cannot depend solely upon the terms Which an astute landlord may be able to impose upon his tenants.
18. In Ramalingam v. Gummurthi Reddy (1954) 2 M.L.J. 752 a Bench of this Court has pointed out that it was not open to a landlord to enter into a contract with the tenant bargaining for larger rights and greater privileges than those conferred under the act, i.e., the tenant cannot be bound by a contract involving a curtailment or deprivation of his rights under the Act.
19. In England this aspect of the matter denying freedom of contract to the tenants to agree to forego rights under the Rent Restriction Acts has frequently come up for decision in various aspects, particularly with regard to furnished premises and tenancies in which the landlord undertakes to render services in addition to letting out the premises. Reference may be made to the following statement of the law in 23 halsbury, 3rd Edition, page 722, paragraph 1467:
Contracting out of the Acts. A tenant cannot contract out of his rights under the Rent Restrictions Acts. Thus he cannot bind himself to pay more than the proper rents. Similarly, so long as a statutory tenant remains in occupation he cannot by any contractual arrangement forfeit his rights to be protected, nor is it possible to incorporate into a tenancy a term Which in effect provides a ground for possession if it is unconnected with the user of the premises. Even if a tenant contracts to vacate the premises and later refuses to leave, the landlord cannot rely on the agreement but must show some ground on Which an order for possession may be made under the Acts. Where, however, the landlord and tenant agree that the tenant will Vacate the premises at a future date and that the landlord will then pay the tenant for giving up possession, the tenant is entitled, if the landlord later repudiates the agreement, to enforce it, as the agreement is not void on the grounds of the public policy, or Want of mutuality, or as an attempt to contract out of the Rent Restrictions Acts.
The parties cannot be prevented by any estoppel from relying on their right under the Acts whether the estoppel, results from agreement or conduct, or, it stems, from a decision of the Court.
From this it is seen that a statutory tenancy cannot by an agreement be converted to a mere contractual tenancy, and that in all these cases Courts will only look at the legal substance of the transaction and not to the form alone. It is sufficient if reference is made to the following decisions in England of vital relevance and significance to the instant case. I shall first refer to the well known case in Welch v. Nagy L.R.(1950) 1 K.B. 455. In that case during the currency of a lease of a furnished premises the tenant bought the furniture from the lessor though that itself would not convert the tenancy into an unfurnished one during the currency of that lease (for the purposes of the Rent Restrictions Act). But after the tenancy terminated and a new tenancy supervened and at a time when the furniture belonged only to the tenant by reason of his prior purchase, the landlord having no claim thereto, the tenant however proceeded to recognise the tenancy as one of a furnished dwelling house. The tenant also wrote a letter to the landlord on that basis, i.e., a tenancy of a 'furnished dwelling house '. It was held that a tenant cannot, by representing himself as tenant under a fully furnished tenancy when the house was in fact let unfurnished, confer jurisdiction on the Tribunals functioning under the Act. The matter Was put thus by Asquith, J. at page 464:
The Rent Restriction Acts compel the Courts to treat an unfurnished lease of a dwelling house within the statutory limits of rateable value in a certain Way. They are not to permit more than the standard rent and permit increase to be charged; nor (except under certain conditions laid down in the Acts) have they jurisdiction to make orders for possession. The Court must take these points even if the parties do not raise them, as they go to jurisdiction. The Court's power, on the other hand, to make orders for possession in the case of 'substantially' furnished leases is left unfettered by the Rent Acts. In my view the parties cannot by, describing Whether by accident or design what is in fact an unfurnished tenancy as a furnished or substantially furnished one, alter the fact that the furniture is actually the tenant's and that such a tenancy cannot be furnished or substantially furnished one. To treat the tenant here as estopped from denying that the tenancy is unfurnished when it is in fact unfurnished is to confer on the Courts by the act of one of the parties a jurisdiction (namely, an untrammelled power to make orders for possession of premises in fact unfurnished) which Parliament has said that the Courts shall not have.
Again at page 465 it is put thus:
But when a new tenancy supervenes I see no reason why the Court should not have regard to the actual position as to ownership of the furniture; and if this is such that a furnished lease (let alone a substantially furnished one) is impossible, the Court must give effect to the rights which the statutes confer on a tenant under an unfurnished lease.
I may also refer to the following observations of Cohen, L.J., at pages 223-224 in Regor Estates Ltd. v. Wright (1951) 1 A.E.R. 219:
Looking at the lease in the present case purely by itself for the reasons, I have given, I should come to the conclusion that it Was an agreement for the payment of a premium so far as the 350 was concerned and not an agreement for the payment of additional rent. In dealing, however, with a matter of this class and the effect of a document relating to the Rent Restrictions Acts, We are not confined to the terms of the document, and we are bound to look at the transactions as a whole and consider whether it is within the prohibition of the Acts. In a different connection Uthwatt, J., made some observations in Samuel v. Salmon & Gluokstein Ltd. (1945) 2 A.E.R. 522, in which he makes it clear that We are not bound by the Vocabulary the parties have chosen to use. In that case he held that the premium Was rent. The facts are obviously so far from the present case that We cannot gain anything by referring to them, but Uthwatt, J., said:Land may be leased for a consideration which is not a rent in law or for a consideration which consists of or includes a rent. The parties may write the agreement in such terms as they please and, if so minded, may attach any label they wish to the payments agreed to be made by the lease. But when all that is done, it is for the law to decide on the effect of the document what payments are rent reserved and what not. No label can create a fact; a label may accurately describe a fact or it may misdescribe it, or may help to the solution of a doubtful question of interpretation'. Counsel for the tenant referred us to the decision in Rusk v. Matthews (1926) 2 C.B. 492, Where the parties had plainly attempted to evade the Rent Restrictions Acts by providing for weekly payments and calling them premiums in a separate document. On the facts of that case the Court had no hesitation in coming to the conclusion that there was a pure evasion of the Acts, within the mischief of the Acts, and therefore, the premium could not be enforced.
In the same Volume, dealing with a similar aspect touching the freedom of contract in R. M. R. Housing Society Ltd. v. Combs (1951) 1 A.E.R. 16, Evershed, M.R. has given a note of warning that it Would be possible to frame a clause which would render the Act wholly in operative in every case and that the Court will not countenance any such agreement as that would amount to enabling the parties to do indirectly and in an oblique manner what the statute says they cannot do directly. In England in applying the provisions of the Rent Restrictions Acts with regard to furnished and unfurnished premises the question of the rent bearing a legitimate and reasonable proportion, to the character and the nature of the particular furniture provided by the lessor and in what proportion the rent should be allocated to the building as such and in what proportion to the amenities by way of furniture has frequently come up for consideration. There again, decisions have uniformly held that neither the landlord nor the tenant can couch the stipulation and specify the allocation of a rent in the lease deed which is unreal or artificial with a view to get over and evade the provisions of the Act. In other words, it has been held that Courts and tribunals will have jurisdiction to scrutinise the allocation of the rent, its bona fides and genuine character in relation to the actual facts and realities. Again, whenever the landlord attempted to secure from the tenant payments (other than and in addition to the rent payable) by way of money or other consideration, Courts have negatived such right, despite the language in which the document may be couched. The landlord had never been permitted to recover either money or other consideration from the tenant except the rent. Vide 23 halsbury, 3rd Edition, page 804, paragraphs 1583, and 1584.
20. I may lastly refer to the decision in Woods v. Wise (1955) 1 Q.B. 29, in which the distinction between ' rent' and ' premium' under the Rent Restrictions Acts came up for consideration and as to how far, the Court can determine the real substance of the matter, whatever may be the language in which the parties had couched the bargain. Evershed, M.R., at page 45 made the following interesting observation:
I cannot for my part think that the arm of the law Would be so short as to disable it from dealing appropriately with such a case as that last suggested, if it appeared that the so called premium was, in truth and substance, nothing more or other than the rent quantified and provided for in ' an abnormal form'.
The principles of these decisions will have a bearing in determining the allocation, of Rs. 1 ,000 as hire for furniture and Rs. 1 ,250 as hire for the machinery and electrical fitting in the two lease deeds, and in particular with vital significance in the second lease deed. Indeed Rajamannar, C.J., in the Bench decision has observed that such an allocation is merely nominal and sham resorted to for collateral purposes, like property tax, and Will not reflect the true bargain. While winding up the discussion of the English cases on this aspect of the matter, it is necessary to refer to the decision in R. V. Blackpool Rent Tribunal (1948) 1 K.B. 800, in which it was held that the landlord, merely by omitting all reference, to furniture in the tenancy agreement cannot prevent the applicability of the Act, when in fact it is the leasing of a premises with furniture. There, Goddard, L.C. J., pointed out that a landlord by merely leaving some chattel in the premises could not convert that into a dignified name of a piece of furniture, and that the fact that the tenant had a right to use certain articles would not, affect the matter.
21. The law is stated in these terms at page 902:
Two cases under this Act have previously been before this Court R. v. Hamstead and St. Pancras Rent Tribunal, Ex. Parte Ascot Lodge, Ltd. (1947) 2 A.E.R. 12, and R. v. Croydon and District Rent Tribunal, Ex. P. Langford Property Co., Ltd. (1948) 1 K.B. 60. Both cases Were dealing with services, the provision of services having the same effect as the provision of furniture in giving a tribunal jurisdiction. In those cases the Court laid down that the only question was whether the tenant was contractually entitled to receive the services from the landlord, and not whether the landlord, in fact, supplied. the same as a matter of grace or convenience. In our opinion, it is quite possible that some different considerations may apply in the case of furniture. For instance, the landlord, merely by omitting all reference to furniture in the agreement, could not prevent the tribunal acquiring jurisdiction, if in fact what was let was a furnished house, of to use the words of the Act, a house in consideration of a rent Which includes payment for the use of furniture. At the same time it by no means follows that what was ordinarily an unfurnished letting Would be turned into a furnished letting because a chattel, which belonged to the landlord and could be dignified by the name of a piece of furniture, was left on the premises. The question would be whether the letting was in consideration of a rent which included payment for the use of furniture.
From the above discussion it will be seen that while determining whether a lease governed by the provisions of the Act as a lease of a building or a composite lease the Court is not completely controlled or governed or bound by the terms of the lease. The Court, can, if necessary, and ought to scrutinise and ascertain the true bargain between the parties and as to how far an allocation or apportionment of the total rent under the several heads is genuine and has any true relation to the facts of the situation. If factually, no items exist Which Would make the lease a composite one the truth will have to be ascertained ignoring the recitals in the lease deed. In other words (assuming not accepting), if furniture and fittings would make the lease a composite lease the question whether the Furniture and the fittings actually existed as recited in the lease deed and whether they belonged to the landlord or to the tenant will have to be ascertained and also at the same time determine whether the recital of apportionment of the rent in relation to furniture and fittings was true-Again, if there is reference to the machinery or talkie equipment which Would make the lease a composite lease, the same scrutiny and investigation should be made by the Court concerning the factual position.
22. As the decision of the Supreme Court in Uttamchand v. S. M. Lalwani : AIR1965SC716 , has a vital impact upon the facts of the instant case, I shall now refer to the same before dealing with the two lease deeds, Exhibit P-4 and Exhibit P-124. In that case the question arose whether the lease of a Dal mill building with fixed machineries and accessories would be a lease governed by the M.P. Rent Control legislation. There too, the term ' accommodation ' was defined as any building including any furniture and any fittings affixed to such building (other portions omitted). The several clauses in the lease deed in that case showed that what Was leased was the machinery and the accessories which were affixed in the Dal mill building and the schedules attached to the lease enumerated fifteen items all attached to the machinery, i.e., Dal Mill. The argument on behalf of the tenant was that the lease in question was mainly of the building, and that incidentally the lease took in the machinery and that the value of the building was far more than the value of the machinery. It was also urged that subsequently, the machinery when found not in order was replaced at the cost of the lessee and that irrespective of the value of the building and the machinery, the dominant intention of the parties in entering into the transaction was not to enter into transaction in respect of the machinery as such but it was a transaction in respect of a building within the meaning of the Act. The Supreme Court held that the proper approach is to apply the test of the 'dominant intention ' of the parties. The Supreme Court observed that the fittings with the machinery could not be said to be fittings which had been fixed for the more beneficial enjoyment of the building but that they Were all fittings for the beneficial enjoyment of the machinery. It is significant to mention that the Supreme Court referred to Section 3(d) (y) (iii) of the M.P. Act to emphasise that in the Act those fittings referred to are fittings for the more beneficial enjoyment of the building. Elaborating this aspect, Gajendragadkar, C.J., made the following observations : h
What then was the dominant intention of the parties when they entered into the present transaction We have already set out the material terms of the lease and it seems to us plain that the dominant intention of the appellant in accepting the lease from the respondent was to use the building as a Dal Mill. It is true that the document purports to be a lease in respect of the Dal Mill building; but the said description is not decisive of the matter because even if the intention of the parties was to let out the Mill to the appellant, the building would still have to be described as the Dal Mill building. It is not a case where the subject-matter of the lease is the building and along with the leased building incidentally passes the fixture of the machinery in regard to the Mill; in truth, it is the Mill which is the subject-matter of the lease, and it Was because the Mill Was intended to be let out, that the building had inevitably to be let out along with the Mill. The fact that the appellant contends that the machinery Which was transferred to him. under the lease was found to be not very serviceable and that he had to bring in his own machinery Would not alter the character of the transaction. This is not a. lease under which the appellant entered into possession for the purpose of residing in the building at all; this is a case where the appellant entered into the lease for the purpose of running the Dal Mill which was located in the building. It is obvious, that a Mill of this kind will have to be located in some building or another and so, the mere fact that the lease purports to be in respect of the building Will not make it a lease in respect of an accommodation as defined in Section 3 (a) (y) (3). The fixture described in the schedule to the lease are in no sense intended for the more beneficial enjoyment of the building. The fixtures are the primary object Which the lease was intended to cover and the building in Which the fixtures are located comes in incidentally. That is why we think the high Court was right in coming to the conclusion that the rent which the appellant had agreed to pay to the respondent under the document in question cannot be said to be rent payable for any accommodation to which the Act applies.
23. In applying the principle of this decision i.e. the theory of dominant intention, it may be noticed that in every one of these cases of these fixtures, fittings and amenities enumerated in the rules-vide Rule 13 concerning non-residential buildings (whether fixed in the ground or to the building or otherwise) they are only for the more beneficial enjoyment of the building. Surely, the building is not for the more beneficial enjoyment of these fixtures, fittings or furniture or other amenities like lift. In my view, this doctrine of the dominant intention can come into play only where there can be a plurality of objects of a lease; i.e., the enjoyment of use of the building as such and the enjoyment or use of the machinery or fixtures as such, as two distinct (separate) objects. One can visualise an oil mill, or a fertiliser factory a textile mill, or a soap factory; in all these cases we have the machinery or the fixtures, as well as the building which houses this machinery. If there is a lease, in one case the parties may be particular about the building alone; the lessee may take the building, dismantle and throw away the plant and instal some other new plant; or the lessee may be keen only about the machinery or the plant; it being a rare machine imported from foreign country. The building Would have become old and dilapidated or the lessee may like to remodel the building so as to get the maximum use of this rare plant. The result will be that the dominant intention of the lessee while taking the lease Would be to take a lease of this particular machinery or plant, his idea being to remodel of demolish the building and to put up a new one to house the machinery. Such a conception of the lessee, being predominantly keen, upon one only, of the two things, the other being incidental of very subordinate |s a necessary foundation for the applicability of this doctrine of dominant intention.
24. Let us take the instant case; the theatre building, the furniture and electrical and other fittings and the Simplex stand-by equipment and the Generator. At all stages of the discussion it is important to bear in mind, the crucial fact i.e., the main talkie equipment, the Westrex Projector, is that of the plaintiffs, and not covered in the lease deed at all. If that goes out it will be absurd and impossible to accept the contention that the lease of the building Was incidental, and the idea, to use the stand-by equipment, in a remote contingency on the temporary failure of the Westrex equipment, is the dominant intention. Let us next take the generator, i.e., the motor and the dynamo, which cannot by any means constitute the talkie equipment. There is one crucial aspect Which has been overlooked in the course of the arguments of the defendants. After all, the use of the generator, i.e., the dynamo and motor, is to generate D.G. current to feed the arc lamp on the plaintiffs' Westrex Projector. The plaintiff's case is, that they Were not using the dynamo and motor but were using a rectifier right from the beginning. The defendants have examined one Tukaram, D.W. I who gave evidence that in 1959 only the generator Was removed as it went out of order, and that till then the plaintiffs were using the same. There is no specific pleading to that effect and the crucial question Was put by Counsel for the defendants in the form of a blatant leading question as to the year in which there was a cessor of the use of the generator. When this witness was examined I formed the distinct impression that he had only hazy notions and could not give evidence with precision as to the dates or period when any particular event or events took place. The answers elicited in cross-examination reveal the unsatisfactory features of the evidence of this witness. This witness admits that the plaintiffs used a new arc lamp right from the beginning, i.e., the Westrex arc lamp. It is very likely and quite probable that the plaintiffs Were using the rectifiers right from the beginning. I am not prepared to accept the evidence of D.W. I. But, for the present discussion, that does not matter. Let me assume that the plaintiffs have been using this generator, dynamo and motor, for sometime, say five years 1952-1957. That does not improve the position of the defendants. I find it impossible to accept the argument that a generator which was used or which could have been used for the effective enjoyment of the plaintiffs' Westrtx Projector', (which projector, be it noted was not demised under the lease deed) would alter the character of the lease so as to take it out of the purview of the Act. To put it in other Words, if the generator Was used or intended to be used, only in connection with the property of the plaintiffs to enable the plaintiffs to make a proper and efficient use of their property belonging solely to them, that cannot possibly take the lease out of the Act. I have so far dealt With the stand-by equipment and the generator.
25. Then, what remain are only the furniture, fittings, fixtures, or amenities Under the Madras Act, read With the Rules, the items aforesaid have no independent existence, and they are by the statute regarded as amenities attached to the non-residential building. In the face of such statutory provisions the question whether the intention was dominant or subordinate or incidental with regard to the furniture and the fittings will not therefore arise. Even if it should arise I am unable to hold that the old furniture and the old electrical fittings which were removed and thrown away would have constituted the predominant object of the lease, the building and other things being subordinate or incidental.
26. I shall now examine the two lease deeds. I have already observed that the first screening of the picture by the lessees, plaintiffs, Was only on 27th June, 1952, and that right from the inception, the idea of the lessees was to remodel, renovate effect improvements, completely renew the furniture, completely renew the electrical fittings and substitute all the accessories and also provide for convenient sanitary arrangements to make the theatre a first class one and then start exhibiting the picture. I find no substance whatsoever in the contention of the defendants that the plaintiffs screened the picture called ' Notch ' in the first week of May from 2nd May, 1952. They did not adduce any oral evidence and they only relied on Exhibit D-10, a letter from the advertisement department of the 'Hindu', to show that there was an advertisement dated 1st May, 1952 about the screening of the picture in Sagar Talkies from 2nd May, 1952. In the course of the cross-examination of P.W. 1, some questions Were put suggesting that this picture ' Notch ' was screened by the plaintiffs, which fact of course Was denied.
27. The documentary evidence which has been adduced on the side of the plaintiffs is simply overwhelming and it is simply amazing how in the face of such over-whelming documentary evidence, and on such flimsy worthless evidence on their part, the defendants raised and persisted in this plea. The documentary evidence consists; of the plaintiff;.' account books, the daily sales reports, box office sheets, which are i all maintained in the regular course of business and the authenticity of which is beyond any question whatsoever. They prove to the hilt, beyond any shadow of doubt that the first picture Was screened by the plaintiffs only on 27th June, 1952. The first sales report. Exhibit P-164, commences from 27th June, 1952. Exhibit P-167-the certificate given by the Commercial Tax Officer also shows that the plaintiffs started paying entertainment tax from 27th June, 1952, (from the date of the opening i of the cinema-note the words). This is corroborated by the box office statement, I Exhibit P-168 commencing from 27th June, 1952, and Exhibit P-169, the bank book, entries at pages 212, 230 and 234. Reference may also be made to Exhibit P-180, the letter written by the plaintiffs to the Commissioner of Police as early as 30th June, 1952 in Which it Was stated that though the plaintiffs took possession of the I cinema on 3rd May, 1952 the cinema was closed for renovation and decoration nearly two months from that date, and that the theatre Was reopened on 27th June, 1952 about three days prior to the Writing of that letter. The documentary evidence on the side of the plaintiffs is so overwhelming that I think it unnecessary to burden this judgment with a detailed reference to the same. The letters, Exhibit P-75, dated 11th September, 1952 written by the defendants to the plaintiffs place the matter beyond any doubt, and I must say that it is very extraordinary, how in the face of this letter, this contention was raised and lot of time was taken in cross-examination merely making suggestions at random, at the same time the defendants not adducing any positive rebutting evidence. This letter shows that an expenditure of Rs. 51-4-0 was incurred by the defendants towards advertisement charges of the proposed screening of the picture ' Notch ', that screening of the picture was stopped by the plaintiff and that the defendants should therefore be reimbursed. The records of the Police which have been produced in this case completely corroborate the plaintiffs' that there was no screening of the picture ' Notch ', by the plaintiffs. The police records also show that during that period the plaintiffs were taking steps to get a transfer of the licence in their favour, they had no licence in the first week of May, and secured it long afterwards.
28. Chitty Babu was then the manager of the theatre during that period. He has been attending several hearings of this suit, assisting the defendants in the conduct thereof. He has not been examined. On two occasions when Counsel for the plaintiffs made reference to the presence of Chitty Babu, in Court and his non-examination, I noticed that this Chitty Babu, skulked away, to which fact, Counsel for the plaintiffs and myself made reference in the course of the hearing itself. The advertisement report at the time of the opening ceremony of the theatre again show that there Was a function on 26th June, 1952 and the first screening commenced, only on 27th June, 1952. It is sufficient to refer to Exhibit P-166, the report in the 'Indian Express' dated 20th June, 1952. Apart from the inference to be drawn from the evidence adduced on the side of the plaintiffs, I do not see any reason why an adverse inference should not be drawn against the defendants for the non-examination of this Chitty Babu. This non-examination is deliberate withholding and suppression of the evidence not only on this aspect of the case but on other aspects as well and becomes very significant when it is remembered that it is this Chitty Babu who Was actively conducting the defence, much more than defendants themselves.
29. In view of this powerful evidence on the side of the plaintiff, I gained the impression that in the later stages of the argument learned Counsel for the defendants did I not press this point with the same vehemence and insistence that prevailed in the course of the hearing. Learned Counsel, Sri Govind Swaminathan fairly stated that the factual position has to be recognised that the first picture Was screened by the plaintiffs only on 27th June, 1952 and that during the two months period the I plaintiffs Were engaged in the renovation and improvement Work, as a result of which I the plaintiffs made the theatre a first class one. Learned Counsel however submitted that even so, the legal position Would not alter, because, the lease deed was executed and registered and took effect from 3rd May, 1952 and it was of no consequence to the defendants when exactly the plaintiffs started exhibiting the pictures in the '' theatre. That, that is the legal position is correct, but it has an important bearing; on the question of the proper understanding of the terms of the lease and the main object underlying thereunder. The entire furniture had been removed; the entire seating arrangement has been changed and costly furniture Was purchased and brought down from Bombay. The electrical fittings had been completely changed; lights and tube lights, electrical fittings, fans, fan points, light points have all been materially and substantially changed. Here again except for a few small items it is a complete change over. The other accessories, air cooler, fire extinguisher, advertisement tube lights, sanitary arrangement, etc. were all substantially new only. There has also been significant additions and improvement to the building, changing the front elevation and the appearance of the theatre. The senior partners of the plaintiffs are dead. The first defendant could have given evidence about the state of affairs in 1952, thereafter but he has not been examined and I am not satisfied that there is any justification for not examining the first defendant. The application to examine him (on commission) at the final stage, practically at the end or conclusion of the case, Was merely an attempt to get over the charge of non-examination of the first defendant. He is one of the main actors in this case in all the stages; and he ought to have been examined long ago. I have no hesitation in drawing the necessary adverse inference.
30. That these alterations, substitutions, remodelling and renovations took place With the knowledge of the defendants cannot be disputed. Indeed, learned Counsel for the defendants did not controvert that. They would only have it, that, in the absence of direct evidence to that effect, it cannot be said that these changes took place with the acquiescence or the consent of the defendants, i.e., proof of knowledge is not proof of consent or acquiescence. I am unable to accept this contention. No doubt, direct positive evidence of consent will be Very satisfactory. But that does not mean the Courts to totally put aside the inference flowing from probabilities and the normal course of conduct and actings of parties for a long period. Having regard to the long lapse of time, and death of all the actors on the plaintiffs' side, coupled With the non-examination of the first defendant, I think it will not be a Wrong or violent presumption but a legitimate, reasonable presumption to make, that the plaintiffs must have obtained the defendants' consent, express or implied, and or there has been an acquiescence of the defendants, express or implied in respect of all these changes which the plaintiffs have made. In this connection it should be noticed that the plaintiffs are refugees and as stated by learned Counsel, Sri Swaminathan, very experienced people in this cinema line. Cordial and friendly relationship existed between the parties at that time, and I find it impossible to visualise a situation, that all these changes, Would have been made by the plaintiffs, without any talk or conversation of exchange of suggestions and views between the parties, plaintiffs and defendants.
31. This inference based upon probabilities, I am adverting to, only to show that at the time when the lease Was entered into, the plaintiffs must have told the defendants about all these aspects, the schemes and the ideas of the plaintiffs to completely renew the furniture, to completely remove the old electrical fittings and fixtures and make a complete substitution, even if the plaintiffs, did not seek the defendants' consent as such, for that purpose. The crucial aspect which is necessary to be borne in mind, is that when the plaintiffs Were negotiating for the lease and executed the lease deed, at the same time, and even at the threshold, they had decided to make all these changes regarding furniture, electrical fittings, fixtures, etc. In that context, the inference is irresistible and lies on the surface, that the apportionment of the - under the various heads Rs. 1,000 hire for the furniture, Rs. 1,250 hire for the machinery and electric fittings and the stand-by equipment is wholly unreal and artificial, and the test of dominant intention propounded by the Supreme Court completely supports the plaintiffs' contention.
32. The stand-by equipment, had long ago been dismantled and this would not have happened if it could be of any service of use. The Westrex Projector is the plaintiff's own. The only use to which the plaintiffs could have put this 'stand-by equipment' is on the contingency of the failure of the Westerx Projector which had been firmly fixed to the ground by bolts and nuts, and even if, the Westres Projector goes out of order, and could not be used, the stand-by projector cannot immediately thereafter be used. The shows will have to be closed till such time as the Westrex Projector is repaired and that is what the plaintiffs would first try to do. Only if the repair Work necessitates dismantling of the Westrex equipment, only then, the stand-by equipment will have to be used, and that too, can be used only by fixing the same to the ground by bolts and nuts. In that contingency, the Westrex Projector will have to be dismantled; the stand-by equipment will have to be affixed by bolts and nuts. For what period Till the Westrex equipment is repaired. Again the Simplex Will have to be dismantiled and the Wastrex affixed to the floor by bolts and nuts. It is fantastic to say that for such a remote, far fetched speculative contingency, the plaintiffs agreed to pay a huge rent per month, or the plaintiffs seriously considered that it was necessary for using the theatre. I have said enough to show that both the parties, and the plaintiffs in particular, could not have attached any serious significance to the stand-by equipment and the idea of their making use of it in the far-fetched contingency referred to above would never have been present in their minds at all. Further, the letter of even date Exhibit P-I25, passed by the defendants to the plaintiffs on the same date as the date of the second lease deed, Exhibit P-124 places the matter beyond any shadow of doubt, because under this letter the defendants have agreed that the plaintiffs themselves can take the standby equipment on the determination of the lease either in 1962 or after renewal in 1967, without the plaintiffs having to pay anything for this. This circumstance I consider, is decisive and constituted powerful evidence to show that the standby equipment did not and could not have entered into the minds of parties and their scheme of things as a matter of any significance, and that reference to this ' stand-by equipments' is made in the body of the lease deed and the Schedule, only for convenient apportionment of the rent, Rs. 2,000 for one portion, for the buildings and the other portion, Rs. 2,500 for other items, so that the latter apportionment Would not enter into computation when the property tax is fixed or levied, as indicated by Rajamannar, C.J., in the decision referred to already, 'for tax and oblique purposes.' Otherwise, there is no meaning in making such pompous reference to the stand-by equipment, as if, it is of some value and as an inseparable part and parcel of the lease agreement Exhibit P-I24, to pass on the letter, Exhibit P-125 on the same date.
33. I have so far, discussed the matter on the basis that even at the inception the defendants were not only aware but had agreed to and acquiesced in the schemes and plans of the plaintiffs and the changes made by them to show that apart from the building, i.e., the theatre, the parties did not attach much significance to the furniture, fittings and the fixtures and the dominant intention was only to take a lease of the building. My conclusion Will be the same even if the true factual position were to be that the defendants had only knowledge of the plaintiffs' schemes, plans and vital changes made by them, there being no express or implied consent of the defendants thereto. Even this distinction of knowledge, as against consent and acquiescence, does not advance the position of the defendants.
34. Repeated stress Was made in the course of the arguments of the defendants that even if the plaintiffs did not intend to make any use of the stand-by equipment, of existing furniture, electrical fittings, etc. they Would not affect the position so-long as under the lease the plaintiffs had the legal right to use the same. The' question is not a legal right in the abstract, but the question of the dominant intention. The analogy of a motor car with a stepny tyre inside for use in emergency, 1 Which may not arise at all, but at the same time being of value and therefore always kept in the vehicle, though very attractive does not appeal to me in determining the true scope of the provisions of the Rent Control Act. At the risk of repetition it has to be stressed that furniture, fittings and fixtures and the dynamo and the motor both under the Madras Act and the Rules framed there under and under the principle of the decision of the Supreme Court in Karctni Properties Limited v. Miss. Augustine : 1SCR20 have to be held as forming part of the building. If so, it necessarily follows, the inclusion of the stand-by equipment (about which I have elaborately dealt With) will not alter the character of the lease. From the foregoing it has to be held that the lease, Exhibit P-4 of the year 1952 was not a lease of a Fully Equipped Cinema Theatre with The Talkie Equipment as of the kind dealt With in Raja Chetty v. Jagannadadas : (1949)2MLJ694 the Bench decision of this Court.
35. I shall now take up for consideration the second lease deed, Exhibit P-124 For the defendants it Was urged that it is this second lease deed which alone should form the primary and the sole basis for the decision in this case and the rights of parties should be decided on the basis thereof. Even so, I am unable to see how it improves their position; really the second lease deed makes the position worse and decisively against the defendants. As observed earlier, though vital changes in every conceiveble aspect of the theatre has taken place, all the clauses including the schedules in Exhibit P-124 are parrot-like mechanical, meaningless repetitions and reproductions. When the defendants had, at any rate, full knowledge of these Vital changes, the wholly unreal and artificial nature of the retention of the B schedule in Exhibit P-I24 is completely exposed. If the Court were to act and rely upon this parrot-like reproduction which is totally divorced from and having no relation whatsoever to the realities of the situation, the decision of the Court will be completely devoid of human element and if I any say so, it will not amount to a decision between human beings and upon their rights but a decision in a moot Court. Further, the second lease deed is a complete answer to the arguments so repeatedly stressed that the Court should take into account not the actual user to which the plaintiffs put those articles but their existence in the theatre and the mere right to use them. The situation in 1952 was totally different. The furniture, fittings and the fixtures were atleast factually existing in the theatre then in 1952. But in 1957, the situation was completely different. The old furniture had been removed and thrown away in a room. Old electric fittings, wire, etc., had been removed and thrown away as rubbish. The other fittings and fixtures and sanitary arrangements, everything had been changed, the old articles having no value whatsoever. The old rotten electric wiring and fittings and other materials which have been thrown away as rubbish could not have possibly entered into the minds of parties as of any consequence when they reproduced Schedule B. It is meaningless to say that the apportionment of Rs. 2,500 towards the hire for the furniture and the electrical fittings, etc., Was made in the second lease deed for a mere right to use them, when the whole thing had not only been removed and or thrown away, but had also been completely substituted by the plaintiffs at huge cost. It is unnatural in the extreme, even to speculate if there is room or scope for speculation that the plaintiffs would have agreed to pay Rs. 2,500 under this head for a mere right to use the items when they had put in new furniture and new electrical fittings at a heavy cost of their own. That the old furniture was useless and Was of no value has been proved by the fact that the old furniture despite the stiff bargaining fetched only Rs. 1,400. Vide Exhibits P-127, P-130 and P-131. These three documents contain reference to Chitty Babu and Venkataraman. Venkataraman was the previous manager of the defendants and he should have been examined by the defendants. There is no explanation for the defendants not having examined these two people. I have no doubt that if they had been examined their evidence Would have gone against the defendants. The very fact that the sale was in 1962, seven years after the furniture was removed, shows that none of the parties attached any value to this furniture. Every adverse inference Will have to be drawn from the non-examination of these people. It has to be held that neither of the parties attached any value to these old furniture, electric fittings and wirings. The dismantled broken pieces of old sanitary fittings and other accessories would have been in the normal course thrown away as rubbish and they do not deserve, any special treatment here. Indeed, I did not understand learned Counsel for the defendants-making any point about the electrical wirings and fittings which were removed. I have already observed that there was no substance in the point stressed by Counsel for the defendants With regard to the stand-by Simplex talkie equipment as in 1952. Even assuming merely for arguments' sake that there is any substance in the argument, the same cannot be applied at the time when the second lease took affect, because of the contemporaneous letter, Exhibit P-I25 passed by the defendants to the plaintiffs concerning this Simplex talkie equipment. I have already dealt With this aspect holding that after Exhibit P-125 much value cannot be attached for the inclusion of the stand-by equipment in the lease deed, and that its inclusion in the schedule is only for collateral tax purposes.
36. On this, aspect, a purely legal argument in the abstract was advanced, that despite Exhibit P-I25 the ownership of the simplex still inhered in the lessors and that the plaintiffs Would be entitled to take them only on the determination of the lease, and that till then, the defendants are the owners of the Simplex, and therefore the provision of appointment of the payment of a huge rent for the Simplex can be thus explained. This legal argument totally divorced from realities cannot be accepted.
37. There is another curious feature in the recitals in the D schedule under Exhibit P-124. They recite as though the identical pieces of furniture, electrical fittings, fixtures, and other accessories and sanitary arrangements are all factually existing and at the same time are all in the same place as they Were at the time of the first lease in 1952. Everything has been changed from start to finish and the B schedule has no place whatsoever. It Will be sheer mockery to rely upon this schedule and to somehow fit the lease into the framework of the principle of the decision in Raja Chetti v. Jaganndthadas : (1949)2MLJ694 . When Schedule B with regard to the furniture fittings and fixtures, goes out, as unmeaning what remains is the building and the dynamo and motor, i.e., the generator. I have already expressed my opinion that this generator, i.e., dynamo and motor, would be an amenity under the Madras Act and the Rules and their inclusion Would not possibly, make the lease a composite lease. In view of the decisions of the Supreme Court in Karnani Properties Limited v. Mis Augustine (1957) S.C.J. 177 : A.I.R. 1957 B.C. 300, and Uttamchand v. S. M. Lalwani : AIR1965SC716 , and the fact that the Westrex talkie equipment belongs to the plaintiffs, the decision in Maharani Talkies case must be confined to the facts of that case. Confronted with this factual situation of the meaningless, unreal and artificial Schedule B to the lease deed Exhibit P-124, learned Counsel for the defendants attempted an argument that by reason of Clauses 5 (f), (I) and (p) of the First Lease Exhibit P-4, the entire new furniture, electrical fittings, fixtures etc., Which have been substituted and brought into the theatre by the plaintiffs, have become the properties of the defendants and from this it is argued that the transaction should be understood as a lease of the building as well as all these items, furniture, etc., at any rate, from the date when the 2nd least Exhibit P-124 took effect. There are Various reasons why 1 am unable to accept this argument. In the first place, there is no reference whatsoever to these new items in Schedule B. It is not a case of there being no schedule at all, but there is the express Schedule B, items With pointed reference to the same in the body of the lease deed. In the face of that, I do not know under what principle or rule of law, the present Schedule B should be completely ignored and thrown overboard and notionally substituted out-right by the new items for which there arc no particulars even. If that Were the intention of the parties, that would have been mentioned in the second lease in the forefront and this meaningless Schedule B Would not have been reproduced. How can it be imagined that at the time of the 2nd lease, the parties did not bestow any thought about the vital changes which had already been made by the plaintiff. The parties, deliberately, were not prepared to refer to the new furnitures new fittings etc., brought in by the plaintiff. One reason is, the plaintiffs would not have readily agreed to include all these items in the Schedule which meant, unequivocal recognition of the title of the defendants thereto and a negation or extinguishment of the plaintiff's rights thereto. Further if the background and the circumstances under which and how the new things came into the theatre Were to be mentioned, the Municipal Authorities may not accept this artificial apportionment of the rent. Secondly, the ready assumption of the learned Counsel for the defendants, that under the provisions of the first lease deed, the lessor, had become the owners of all these items, is Wrong and lacks substance. A proper interpretation of the several clauses of the lease deed, in particular Clause 5 (l), (l) and (p) of Exhibit P-4, does not warrant any such view, as contended by the defendants. The relevant clauses on which reliance Was placed, may have to be extracted;
Clause 5 (f) : The lessees shall take due and proper care of the demised buildings, furniture, and other fittings, machinery, talkies equipment and accessories and effects and keep them clean, in good repair and preserved from injury (except by accidental fire and from deterioration otherwise than by reasonable use and Wear thereof) and as far as possible forthwith to replace with articles of the same sort and equal value such as may be lost, broken, worn out, damaged or destroyed (except as aforesaid) or to compensate the lessors in damages for any omission or replace as aforesaid and to repair and make good such articles as may be damaged (except as aforesaid).
Clause 5 (l) : The lessees shall not dispose of or let on hire or otherwise remove or suffer to be removed from the said buildings without the previous consents in writing of the lessors (except for the purpose of repair or alteration) and of the said fixtures, electrical fittings, furniture or any other articles or things of a like nature which may hereafter be brought upon the said premises in substitution therefor, except the talkie equipment.
Clause 5 (p) : To yield up the demised land and buildings with the existing fixtures, electrical fittings and furniture etc., described in Schedules A and B hereunder or substitutions therefor at the expiration or sooner determination of the said term in good and substantial repair and condition (fair wear and tear as hereinbefore provided only excepted.) (Rest of this clause omitted as not relevant.)
Clause 5 (e) deals with alterations and improvements to the buildings, under Clause 5. (f) the lessees are to take proper care of the demised buildings, furniture and fittings keep them in good repair and replace whenever they are lost or destroyed or become useless by Wear and tear. Such articles to be replaced are to be of the same sort and of equal value or in default the lessor is to be compensated in damages. Loss or damage due to accidental fire and deterioration otherwise than by usual wear and tear is excepted. Clause 5 (1) restrains the lessee from dealing with these furniture, fittings etc., already existing in the theatre or the substitutions therefor. Clause 5(p) enjoins the lessee to yield up to the lessor the demised premises with the existing fixtures, electrical fittings, furniture described in Schedule B or the substitutions therefor. I am of the view that the replacements of substitutions dealt with under these clauses are replacements or substitutions of articles of furniture which become useless or get damaged and worn out by ordinary use, wear and tear. The idea is that if some, articles of furniture get damaged or worn out by use, wear and tear, the burden thereof should be borne by the lessees as the wear and tear is due to the use of the furniture during the currency of the lease and the lessons should not be made to suffer for that. These clauses therefore would not apply to an out-right complete replacement of the entire furniture, fittings, fixtures etc., by the lessees. The use of words ' the replacements must be of articles of the same sort and equal value such as may be lost or broken or worn out ' emphasises this aspect. I shall make my meaning clear. Suppose the old furniture in 1952 consisted merely of ordinary chairs, ordinary benches and back benches and if the lessees removed all these items of furniture and replaced them by first class arm-chairs, with or without cushions, first class sofas etc., the lessors cannot claim these replacements at the time of the determination of the lease. At the same time the lessors, when the lease terminates will be clearly entitled to call upon the lessees to replae those ordinary chairs, benches and back benches which existed in 1952 or to pay the Value thereof at the prevailing rates on the date of the termination of the lease. But the lessors have no right to ask the lessees to yield up these new items of furniture. The context in which the word ' substitution ' or ' replacement' is used in the clauses of the lease deed tends to the same view. Further the restriction against disposal and removal as per Clause 5 (l) is only about removal of furnitures, fittings, etc., which may be ' hereafter' be brought upon the said premises, With the result that this restriction contained in the second lease deed, Exhibit P-24, cannot apply to the things which had already been brought in during the time of the first lease. The expression ' hereafter cannot possibly refer to furniture etc., which, were already in the theatre at the time of Exhibit P-124. Again it is necessary to reiterate that the obligation to yield, up and deliver as per Clause 5'(p) is only with regard to the furniture, fittings and fixtures set out in Schedule B appended to the second lease deed. How can the lessors claim the lessees to deliver up, the items mentioned in its B Schedule and at the same time, claim 'the new furniture, fittings, etc., because of Clause 5.(f), (l). and (p) Obviously the lessors cannot claim both. The express reference and, inclusion of the articles in Schedule B will necessarily exclude any right to the new items of furniture. If really the lessors thought that these Clauses (f), (l) and (p) in the lease deed. Exhibit P-124, applied to the entire new furniture and fittings etc., they could not possibly have been blind or ignorant of their rights. The replacements or substitutions, according to them, had already taken place and it Would have been easiest thing for the parties to have referred to all the new items in the place of the B Schedule, in the second lease deed of 1957. Absurdities, anamolies, want of cohesion between the first lease deed and the second lease deed have all arisen by the ill-drafting and by reason of the referene to the old B Schedule both in the body of the lease deed and the Schedules proper. When vital changes occurred in 1952, but yet significantly-and I must say deliberately-the parties avoided all reference to the new furniture, fittings etc., brought in by the plaintiffs, how can the defendants make any claim to items not included in the second lease deed If the question as to what the relative rights of the parties (the lessees and lessors) with regard to the old furniture , fittings etc., as well as to the new furniture, fittings etc., had been squarely posed and discussed between the parties at the time of Exhibit P-124, it would have been of course differently worded. Again if the lessors thought that it was axiomatic that the new furniture, fittings etc., became the property of the lessors, they would have straightway referred to all these items in the Schedule B and omitted the old Schedule. Is it not clear beyond doubt that the lessors did not think that they had any right to the new furniture and fittings Again even in the sale deed in favour of defendants 3 to 5 the new items are not mentioned. For all these reasons, I am clearly of the view that the clear intention of the parties was that the replacements and substitutions referred to in these clauses are the replacements and substitutions that Would be made in the normal course when items of furniture and fittings become useless by wear and tear and not the wholesale substitution.
38. Further the argument of learned Counsel for the defendants overlooks that if at all any rights had accrued to the defendants under the several clauses of the lease deed in respect of the new furniture, electrical fittings, fixtures etc., they are incomplete and inchoate and will operate only by way of restraints and restriction against removal or disposal and will not control the effect of the recitals in the second lease deed. ....
39. I am not prepared to assume that When the lessees had spent about Rs. 1 1/2 lakhs towards renovation, furniture, fittings, etc, they would have readily agreed to make a present of these items to the defendants. If I can speculate, I would rather think that if this question about these new additions had been squarely discussed the plaintiffs would have given up the idea of renewal and insisted upon their rights either for removal or to the compensation with regard to the new furniture, fittings etc.
40. Even assuming that all these new items ought to alternatively be handed over to the lessors at the determination of the lease, the ownership in these items will not however vest in the lessors during the currency of the lease. The several restrictions and restraints imposed upon the lessers under the several clauses of the lease do not make the lessors the owners of these items immediately they were brought into the theatre. The ownership therein will continue to vest in the plaintiffs till the lease is determined and they vacate. It is sufficient to refer to the principle of the decision of the Supreme Court in Dr. K.A. Dhairyawan and Ors. v. J.R. Thakur and Ors. : 1SCR799 . That case arose under the Bombay Rent Control Act. The lessee therein while taking the lease of the land from a temple for a period of 25 years at a tent of Rs. 50 per month had agreed (as part of the lease arrangement) to construct within six months from the date of the lease certain superstructures, shops and residential rooms and hand over the land and the superstructures to the temple on the determination of the lease without any right to compensation. The question directly arose as to the exact point of time when the ownership of there superstructures put up by the lessees vested in the lessors. The Supreme Court held that the superstructures, right till the point of determination of the lease, belonged to the lessees, the clause in the lease did not transfer the ownership in the buildings to the lessors While the lease subsisted. It was also held that the contract by the lessee in that case was a contract to the contrary within the meaning of Section 108 (h) of the Transfer of Property Act. The Supreme Court also observed that there was no warrant for the view that the buildings erected by the lessee on the land would immediately vest in the lessors or that the same should be deemed to have been demised to the lessees along with the land. The situation in the instant case is precisely the same. Here, all the several restraints and restrictions would only amount to the lessees having waived their rights or having contracted not to exercise their normal right to remove the furniture etc., which they are entitled to under Section 108 (h) of the Transfer of Property Act. It is necessary to reiterate again that this reasoning of mine is only on the assumption that the clauses and the several restraints and restrictions would apply to the new furniture, fittings etc. In that context it must be borne in mind that but for the several clauses in the lease deed the new furniture etc., brought into the theatre and attached to the earth by the lessees could well have been removed by them as their own. The peculiar doctrine of English law with regard to fixtures in general and the classification of the fixtures as landlord's fixtures and tenant's fixtures do not apply in India. Vide Mulla, Transfer of Property Act, 5th Edition, pages 693-694. This difference in the aspect of the law in India has also been adverted to in the decision of the Supreme Court referred to earlier vide also Venkatasubbiah v. Thirupurasundari I.L.R. : AIR1965Mad185 .
41. It was also argued that these new items of furniture had been firmly affixed to the earth, that when removed serious damage Would be caused to them and that they could not therefore be strictly called furniture. In support, of this contention reliance was placed on the decision in Palser v. Grinling, and Property holding Co., Ltd, v. Mischeff L.R. (1948) A.C. 291. It is unnecessary to deal with the decisions in England on this aspect in great detail Which arose under the statutes in England. I am clearly of the view that furniture under our Acts and in the lease deed in the instant, case must be given its ordinary popular meaning. An article within the ordinary description of furniture will not cease to be a furniture merely because it is affixed to the earth, and it is not necessary that furniture should always be movable though generally articles of furniture are commonly moveable. I may in this connection refer to the following statement of the law in Gray v. Fidler L.R . (1943) 1 K.B. 694.
For myself, I hope that County Court Judges incases of this kind, will never again think it their duty to decide as to each article whether it is a 'fixture 'or might, if it belonged to a tenant, be said to be removable as a 'tenant's fixture.' The word fixture is often loosely used, and not always with the same meaning. Its introduction into cases of this class serves only to confuse what should be a comparatively simple investigation. The question to be decided is not one of law. The word furniture has no esoteric significance. Expert evidence is not necessary to enlighten the Judge as to its meaning, nor ought he to be influenced by what other Judges have decided about other articles.
I am not prepared to hold that these new chairs, sofas and chairs are not furniture merely because they are fastened to the earth by bolts and nuts. All the items of furniture which were installed in the theatre are substantial ones, made, manufactured and intended to bear and withstand rough use and it is difficult to hold that such strong, sturdy furniture, specially made to withstand such rough use would be seriously damaged if removed. Even if for any reason they could not be regarded as furniture they would only be fixtures. Even so, the lessee will be entitled to remove them and they will not become part of the leasehold property because, as observed earlier, the rules of English law do not apply. Even a petrol bunk installed in earth has been held to be not immovable property. It is sufficient to refer to the Bench decision in Mohammed Ibrahim v. Northern Circars Fibre Trading Co. (1944) 2 M.L.J. 60 : I.L.R. (1945) Mad. 304, in which the distinction was pointed out that even in the case of a machinery installed and attached to the land, the machinery will not become part of the land if the land and the machinery belonged to two different persons. Vide also Mulla, Transfer of Property Act, 5th Edition, pages 23 to 27. Under the general law and under the statute (Transfer of Property Act) it is the undoubted right of the lessees to remove all the new fittings, fixtures, furniture etc., brought into the demised property. If any contract to the contrary, taking away this valuable right of the lessees, is set up, that contract, will have to be strictly construed and if there should be any ambiguity or doubt in the language used, it must be resolved in favour of the lessees. This well established rule in the interpretation of the lessee's covenants should also be borne in mind. I am of the view that the several clauses deal only with the substitutions of items which would be damaged for usual wear and tear and would not apply to an out-right complete substitution. It may be, that the lessees may be liable, to the lessors for having removed the entire existing items but it does not necessarily follow that these new items, even though they are more valuable will belong to the lessors. Further, the several clauses in the second lease deed refer only to old furniture and fittings and they will not amount to a contract to the contrary, within the meaning of Section 108 (h) of the Transfer of Property Act, so far as the new items of furniture are concerned. The contract to the contrary within the meaning of Section 108 (h) of the Transfer of Property Act is only with reference to the items set out in B. Schedule and substitutions and replacements made therein after 1957 after 1962.
42. There is yet another aspect to which mention must be made. Under the Madras Rent Control Act Section 6 the landlord is prohibited from stipulating or receiving any premium or other like sum in addition to the rent in consideration of the grant or continuance or renewal of the lease. This restriction is imposed to prevent landlords from circumventing the policy of the Act, namely, the charging of exhorbitant and excessive rents. If the plaintiffs are entitled to the protection of the Rent Control Act at the time of the first lease in 1952 they are bound to pay to the lessors only the agreed rent and on the determination of the lease they Would be entitled to remove all the new furniture, fixtures etc., brought in by them to the theatre. If the several clauses of the lease deed, clauses 5 (f), (l) and (p) are construed as a contract to the contrary the lessors would be getting in addition to the rent the value of the new furniture, fittings etc., to which in the normal course, the lessees will be entitled. It is true that the section in terms refers to the bargain for the payment of any premium or like sum in addition, to the rent, and does not expressly deal with a bargain of this kind obliging the lessees to give up their right to the value of the lessee's fixtures and furniture. But that cannot affect the legal position. Virtually, what the lessors have bargained is extra payment of money representing the value of the lessees' fixtures at the time of the determination of the lease. That would clearly come within the mischief of Section 6. Any other view would completely defeat and evade the provisions of the Rent Control Act. For instance while letting out the ground floor of a building, whether residential or non-residential, the landlord may stipulate that in addition to the rent, say Rs. 200 per month, the lessee as part and parcel of the lease should agree to put up a building in the first floor at the cost of the lessee and hand over both the ground floor, and the first floor to the lessor on the determination of the lease, the lessee having no right of reimbursement or compensation for the expense incurred in putting up the first floor. If this argument is to be accepted that this additional obligation is not in the nature of a payment of premium of additional sum in cash but something in kind or service, in every case the lessor would bargain for such consideration of an anomalous kind and impose onerous obligations upon the lessee, with the result that the beneficial object of the legislation would be completely defeated and frustrated. Reference has already been made to the statement of the law in 23 halsbury, 3rd edition, page 804 paragraph 1853 in which this restriction under the English Rent Restrictions Acts had been applied not only to bargain for payment of an extra premium but also other obligations and covenants. The result is that these clauses in the lease deed to hand over to the lessors the new fittings, furniture etc., along with the demised premises would be inoperative and could not be enforced against the lessees in view of the provisions of the Rent Control Act.
43. I must also refer to another point repeatedly stressed in the course of the arguments, i.e., what was leased was not the building but a cinema business, taking advantage of the use of such an expression in Natesan. J's judgment as a ground of distinction. I say that that observation was made in that case in a totally different context. In the instant case there is no factual basis for such an argument. All the licences from the Police, Electricity Board etc., will have to be obtained by the lessees in their own names and they were acquired so by the plaintiffs. The plaintiffs completely changed the theatre and spent huge amounts for making it a first class theatre. They did not, immediately, after Exhibit P-4 took effect, continue or carry on the business as an unbroken one. There was a time lag of two months; even the picture 'Notch' advertised by the defendants was not screened, and that programme was stopped by the plaintiffs. Everything the plaintiffs did was on their own. They did not take over anything like a stock in trade, cash in chest, cash in the banks or any outstandings or book debts or any other asset belonging to the lessors as a going concern. The business was started, carried on and continued by the plaintiffs as their own, at their own cost and at their own risk with which the defendants had no concern. There is no kind of connection whatsoever between the defendants and the plaintiffs in the matter of the business activities of the plaintiffs. There is not even a question of the plaintiffs weaning away the customers of the defendants as in the case of other trades. Failure or the success of the business depends and depended upon the business enterprise and the capacity of the plaintiffs in securing and arranging to exhibit good pictures yielding good income. Even in the matter of the staff there has been a change over. There is only the single solitary fact that the defendants were originally using this building as a cinema theatre and that the plaintiffs too are putting the building to the same use. The position may pose a problem, on Which I express no opinion, if along with a lease of the theatre, the plaintiffs had also taken over any Outstanding Contracts for exhibition with distributors or producers entered into by the defendants or any other business commitments which the defendants might have already entered into long before and were pending at the commencement of the lease and also having operation subsequent to the lease, and at the same time the plaintiffs being obliged to continue and complete those commitments and transactions. Say for instance, if immediately prior to the lease, the defendants had entered into some distribution agreement for a period of two years with distributors on fixed hire or on a percentage basis for exhibiting certain pictures and had also received advances and as a part of the lease the plaintiffs had agreed to take up those transactions and the profit or loss accruing from the same. But there is no such feature in the instant case. From start to finish it is merely a lease of the building and any business which, the plaintiffs carried on was their own separate independent business. For all these reasons, I have no hesitation in rejecting this argument that What was leased was a cinema business.
44. Reference may also be made to another argument often stressed by Counsel for the defendants, that in judging the character of the lease the Various items, furniture, electrical and other fittings, fixtures, stand-by equipment, generator should not be considered independently in isolation, but all these items should be cumulatively taken into account. That is what I have done. Even so, I am unable to hold that it makes any difference or alters the character of the lease. After the decision of the Supreme Court in Karani Properties Ltd. v. Miss Augustine : 1SCR20 , and in view of the specific provisions of the Madras Rent Control Act and the Rules framed thereunder, particularly Rule 13, it is futile for the defendants to contend that the furniture, fixtures and the fittings should not be taken along with the building. When the statute and the rules provide that they form part of the building and should be taken together into account in fixing the rent how can it be urged that these items should be considered separately Such a perspective of approach will be directly contrary to the scheme and the provisions of this Act. It is this identical aspect which has been pointedly brought forth in the unreported decision of Natesan, J. Then what remains to be considered for this ' cumulative theory ', if one may use that label, is only the generator and the stand-by equipment. If the installation of electric motor and pump to facilitate supply of Water in a furnished building (with all furniture and fitting) would not take the building out of the purview of the Act, I find it impossible to hold that the addition of a generator, dynamo and motor, to generate D. C. current. would alter the character of the building. Can it make any difference that in the one case in a furnished building with fittings, electric motor and the pump are provided for drawing water from the well by generating electric current while in the other case the dynamo and the motor are provided for generating D. C., current for the arc lamp Let us not forget in both the cases it is for generating electricity. I find it impossible to hold that the addition of this generator would alter the character of the building. I have already dealt with the significance of the stand-by-equipment. Even if all these items are taken into account ' cumulatively ' the result is the same and would not alter the character of the building.
45. It only remains to deal with the objection raised as to the maintainability of the suit and the award of the relief as prayed for by the plaintiffs in their plaint. Learned Counsel, Mr. Ramamurthy Iyer, contended that the question whether or not the plaintiffs were in lawful possession within the meaning of Rule 13 of the Madras Cinema Regulation Rules should be considered and decided only by the Commissioner of Police, the 6th defendant herein, that it is his exclusive jurisdiction and discretion, and this Court cannot express such an opinion. This argument was pressed with a certain amount of vehemence on the ground that the Bench decision of this Court which dealt with a cinema case, Om Prakash Gupta, v. Commissioner of Police I.L.R. (1960) Mad, 490 : (1360) 2 M.L.J. 50 warrants that view. This argument utterly lacks substance. Learned Counsel has relied upon certain observations therein completely divorced from the context and the proceeding in which they were made. In that case after the termination of the lease, the lessee wanted the licence to be renewed by the Commissioner on the ground that even though the lease had terminated his possessory title Was not only good as against everybody but good even as against the lawful owner, the landlord, that, till the landlord takes appropriate proceedings and recovers possession of the property from the lessee, the possession of the lessee must be held, as lawful possession within the meaning of Rule 13. The Commissioner refused to accept this standpoint and the matter came up in a proceeding under Article 226 of the Constitution. The argument before the Bench was that the Commissioner had misconceived his jurisdiction and that on the facts, the Commissioner should have held that the lessee's possession Was lawful so long as the lessee had not been dispossessed by the lessor in a separate proceeding of his own. It was argued all these facts i.e. the original grant of the lease, the termination of the lease, the lessee continuing in possession even thereafter, the absence of the lessor having taken any proceedings to evict the lessee, were more than sufficient to satisfy the Commissioner that the lessee's possession Was lawful within the meaning of Rule 13. That was the substance of the argument before the Bench which was not accepted. In the first place it must be noticed that this Bench decision was rendered in a proceeding under Article 226 and not in a regular suit. This Court pointed out the perspective of approach for defining the jurisdiction of the high Court under Article 226 with reference to the quashing of the order of the Commissioner under Rule 13, the manner of its exercise by him and the materials the Commissioner can rely upon for the purpose of making up his mind as to whether or not the applicant was in lawful possession of the theatre. The Bench pointed out that the Commissioner had to make same enquiry and must have some materials on the basis of which he can exercise his discretion and pass order under Rule 13, one way or the other. The broad lines of the scope of the enquiry by the Commissioner of Police are discussed in page 53 of this Bench decision. Ultimately the high Court observed that if the Commissioner of Police, at that stage, in a summary enquiry, under Rule 13 had taken into consideration the relevant aspects and reached the conclusion that a particular party had not satisfied the Commissioner that the former Was in lawful possession it was not within the province of the high Court under Article 226. to substitute its own view on the same material and interfere with the exercise of the discretion by the Commissioner. It is in that context the following observations were made by Rajamannar, C.J.
Here the rule expressly says that the evidence, which the applicant has to adduce to show that he is in lawful possession of the site, building and equipment should be ' to the satisfaction of the licensing authority.' If an applicant produces certain documentary evidence, but the Commissioner is not satisfied, on such evidence that the applicant is in lawful possession of the site, building and equipment, he can refuse to grant the licence. Will it be open to this Court in the exercise of special jurisdiction conferred by Article 226 of the Constitution 'to say that the licensing authority should have been satisfied by the documentary evidence produced, as showing that the applicant is in lawful possession of the premises and equipment? There may, we concede, exceptional, cases where this Court might hold that the order of the licensing authority is prima facie perverse. To give an extreme example : suppose there is a judgment of the Supreme Court, declaring that the applicant is in lawful possession of the premises and that judgment is produced before the licensing authority but the authority nevertheless, says that he is not satisfied that the applicant is in lawful possession, this Court would interfere. Barring such exceptional cases, we think that it does not lie within the province of this Court to examine the correctness of the view taken by the licensing authority in the case of each applicant as to whether he is or is not in lawful possession of the premises and equipment.
The limited purpose for which and the context in which these observations were made must be borne in mind. This Bench decision and the observations extracted above are not authority for the position that a party aggrieved by the decision of the Commissioner of Police has no right to file a suit and establish his right to possession of the building, when the rival claimant in the proceedings before the Commissioner denied such a right. In fact, the pointed reference, to the instance of a decision of the Supreme Court which the Commissioner should take into account shows that the learned Chief Justice clearly recognised the right of an aggrieved party to get an adjudication in a civil Court. The decision of the Supreme Court on the right of the tenant is bound to be taken note of by the Commissioner of Police. It is absurd to suggest that a judgment of the high Court will not have the same effect. The reference to the judgment of the Supreme Court is only illustrative. The substance of the observations of the learned Chief Justice is that the Commissioner of Police, while acting under Rule 13 and exercising discretion is bound by the decision of a civil Court if such a decision is rendered as between competing claimants. In this case it is a statutory right. In other cases, the dispute may arise on intestacy or upon rights flowing under a gift, or will or rights flowing under a sale deed, in all of which there may be controversy between the applicant and some other party and the Commissioner of Police may entertain an honest doubt under Rule 13 about the merits and demerits of the rival contentions of the parties, and for that very Reason may decline to issue the licence. In such a situation I am not able to visualise what else could the aggrieved party do except to come to a civil Court and establish his fight to the property. I do not understand learned Counsel for the defendants denying the fight of the party to come to Court, in such situations. I cannot see what difference it would make when it is a dispute with regard to right under a will or a gift deed or an intestacy or where it is a right arising out of the provisions of a statute. As I could not follow the argument which I found to be unintelligible I just put the following simple problem to learned Counsel of a particular situation of a landlord with half a dozen rowdies threatening the tenant that if the latter did not vacate the premises whether residential or non-residential within a certain time, say within a week, the landlord along with the rowdies would forcibly enter into the premises, throw away the articles of the lessee and take forcible possession of the premises. I asked the question whether in such case, it would not be open the tenant to file a suit immediately and ask for a permanent injunction against the landlord and also a declaration of his rights under the statute, the right to continue in possession as a statutory tenant. Learned Counsel, Sri Ramamurthy Iyer, appeared to realise the untenability of the stand taken up by him and did not seriously pursue this line of argument. It is at that stage Mr. Jagannatha Rao, learned Counsel for the other defendants, said that his clients were seriously pressing this point but no further arguments were advanced by him. In the instant case it is beyond dispute, and not in controversy, that the defendants had disputed the claim of the plaintiffs. They successfully resisted the proceedings before the Commissioner of Police and consequent thereof, the plaintiffs failed in their effects to get a renewal of the licence from the Commissioner. The defendants assumed the same attitude in their interlocutory application, as well as in the suit. I am unable to see what more or what further was required to entitle the plaintiffs to file the suit in the case of this undoubted denial of the plaintiffs' rights. If the Court were to countenance to any extent, this contention of the defendants that the lessees will have no right to institute a suit the entire Act would be defeated by powerful and influential landlords who will take the law into their own hands, forcibly eject or push out the tenants and the latter will be without remedy. I have no hesitation in holding that the legal position is not so absurd. In my view the point is so basic, fundamental and established that I think it unnecessary to refer to precedents in which suits were entertained and declarations given upholding the rights of tenants like permanent rights of occupancy etc. I see no substance whatsoever in the objection that the pleadings and the reliefs prayed for do not cover the award of such relief of upholding the rights of the tenants under the Rent Control Act. From a reading of the plaint as a whole, with particular reference to the averments concerning the events which preceded the suit, I have no doubt that what the plaintiffs seek in the instant case is to establish that they are statutory tenants entitled to continue in possession of the property under the provisions of the Madras Rent Control Act, and that the building in question is a building within the meaning of the Act. I find it impossible to hold that the main relief asked for in the plaint is to ask this Court to function as a Commissioner of Police exercising jurisdiction under Rule 13, Such a contention is based on an incorrect understanding of the averments in the plaint and the substance of the reliefs asked.
46. On the findings reached I do not see any legal bar in awarding to the plaintiff reliefs in paragraphs 21 (1) and 21 (2). At this stage it is necessary to mention that the 6th defendant, the Commissioner of Police, was represented by Counsel who was present throughout the proceedings. Learned Counsel for the 6th defendant, even at the threshold represented to this Court on behalf of the Commissioner, that the latter has not any objections of his own, and that he would abide by the decision of the Court. All the objections about the frame of the suit, which I have observed are useless and untenable, were raised only by Counsel for the other defendants and not by the Commissioner of Police. The correspondence which passed between the plaintiffs and the Commissioner of Police shows that there is no other questioner objection and the only matter on which the Commissioner required clarification was whether the plaintiffs could be deemed to be in lawful possession of the building within 'Regulation Rules. Now that by this judgment this doubt has been cleared and clarified in favour of the plaintiffs by reason of their right to possession being upheld, the Commissioner will have to issue the licence to the plaintiffs as there is no longer any question arising for further scrutiny under Rule 13 before the Commissioner. In other words this Court expects the Commissioner of Police to immediately implement the result of this adjudication and issue the licence to the plaintiffs.
47. On issues 1 and 2 it has to be held that the lease in favour of the plaintiffs is governed by the Rent Control Acts and that the plaintiffs are entitled to the benefit thereunder. In view of this, finding on Issue No. 2 is unnecessary. On issue 3 I find that all the items mentioned in the lease deed were handed over to the plaintiffs at the time of the lease in 1952. It is unnecessary to express a distinct finding on issue No. 5. The plaintiffs have filed an extract showing the items purchased and the investment made by them. All the items of expenditure and investment are vouched by the entries in the account books. It is only after culling out entries from the accounts that the extract had been prepared. On issue 61 hold that all the new items of furniture, fixtures and fittings as soon as they were installed or replaced did not form part of the lease. Issue 7 I find in favour of the plaintiffs. No such agreement has been proved by the defendants. Issues 8 (a) and (b) : I do not see any reason why the suit is not maintainable and why this Court has no jurisdiction I find the issues in favour of the plaintiffs. On Issue 4 I hold that the plaintiffs are entitled to contend that the items mentioned in the lease deed were not handed over to them or leased to them. There is no legal bar when the question is about the applicability of the provisions of the Rent Control Act. I have already referred to the decisions in which it has been held that if furniture had not been really supplied by a landlord the fact that it is so stated in the lease deed will not preclude the tenant from saying that such furniture was not supplied nor preclude the Court from finding out the truth dehors the recitals in the lease deed.
48. The result is there will be a decree in favour of the plaintiffs against the first defendant and defendants 3 to 5 that the plaintiffs are statutory tenants under the Madras Rent Control Act and they are in lawful possession of the theatre and that they are entitled to be in possession of the theatre, Odeon Cinema. There shall also be an injunction against defendants 1, 3 to 5 as prayed for in plaint paragraph 21 (2). There is no ,need to pass any formal decree as against the 6th defendant as his learned Counsel has agreed that the 6th defendant will accept and abide by the decision of this Court. The plaintiffs will be entitled to their costs. The hearing of the case has been protracted and arguments were spread over for several days I fix the costs of the plaintiffs at Rs. 7,000, Rs. 4,500 towards the Court-fee paid and Rs. 2,500 towards Counsel's fee and out fees. This decree shall be a joint and several decrees against defendants 1 and 3 to 5; In view of this the final order dated 28th April, 1967 passed by this Court in Application No. 904 of 1967 appointing the plaintiffs' partner as Receiver and directing the plaintiffs to pay a sum of Rs. 10 000 shall stand vacated and the plaintiffs are not liable to pay for the month of January 1968 and thereafter anything more than the original agreed rent of Rs. 4 500 per month.
49. At the time of the institution of the suit, the plaintiffs applied for and obtained interim injunction in Application No. 904 of 1967. After the defendants entered appearance and when the application was disposed of on merits, this Court by its order dated 28th April, 1967 vacated the interim injunction and appointed the plaintiffs, by their partner, V.N. Sahni, as Receivers of the suit theatre and at the same time directed that a sum of Rs. 10,000 should be paid by the plaintiffs, Rs. 5 000 to the first defendant and Rs. 5,000 to defendants 3 to 5 at the same time mentioning that the said sum of Rs. 10,000 shall, not be accounted for in any way by the defendants. The order passed by this Court, set out the reasons and the circumstances for passing the same. I have held that here after the plaintiffs are bound to pay only the agreed rent of Rs. 4,500. The plaintiffs are at liberty to pursue their remedies if any, by way of restitution or otherwise for the excess payments which they have made in pursuance of the order of this Court in Application No. 904 of 1967 while the matter was sub judice. I do not express any opinion whatsoever about the merits of any such proceeding which the plaintiffs may initiate if so advised.