Karnataka High Court
Kumaravelu vs Kanakarathnam Chetty on 22 April, 1994
Equivalent citations: ILR1994KAR1477
JUDGMENT Murgod, J.
1. Defendants 1 and 2 in Original Suit No. 4092 of 1980 are the appellants before this Court and the plaintiffs in that Suit No. 4092 of 1980 are respondents 1 to 5.
Defendants 3 and 4 in the trial Court are respondents 6 and 7 in this Appeal. The parties are hereinafter referred by their ranks in the trial Court in this Appeal for the sake of convenience.
2. Plaintiff No. 1 is the husband of plaintiff No. 2 and plaintiffs 3 to 5 are their children. They instituted the suit alleging that the plaintiffs 1 and 2 are the owners of the Cinema Theatre known as "Opera House" (New Opera Talkies) Municipal Old No. 24, Residency Road, Bangalore and new No. 57 (old No. 101), Brigade Road, Civil Station, Bangalore and also, all the machineries, projectors, generators, electric motor, electrical fittings, screens etc., in the said theatre more fully described in the schedule to the plaint. Plaintiffs 1 and 2 under the Lease Deeds dated 27-9-1975 and 1-10-1975 had leased out the schedule theatre with the machineries and fixtures to the defendants 1 and 2 till 31-8-1978. On the request of the defendants 1 and 2, the plaintiffs granted a grace period of three months to wind up their business of exhibiting the pictures by the Agreement dated 9-9-1978 till 30-11-1978 to vacate the schedule theatre with machineries, projectors etc., and to hand over the same to the plaintiffs. By the letter dated 11-9-1978 with concurrence of the defendants 1 and 2, the plaintiffs 1 and 2 intimated the Deputy Commissioner to renew the licence only for a period of three months till 30-11-1978 and he accordingly renewed the licence. By the letter dated 29-7-1978, the plaintiffs intimated the defendants 1 and 2 to vacate the schedule premises on 31-8-1978, and they also got issued through their Advocate, a registered legal notice dated 26-10-1972 calling on them to hand over the possession of the premises on or after the midnight of 30th November, 1978 after which date the defendants have no authority to continue in possession of the property.
3. Plaintiff No. 3 is the son and plaintiffs 4 and 5 are the daughters of the plaintiffs 1 and 2 and they are the owners of the furniture and fittings in the plaint schedule property and by three separate written agreements dated 10-10-1975 have leased out the furniture and fittings in the schedule theatre to the defendants 1 and 2 and have also terminated the tenancy of the defendants 1 and 2 in respect of the furniture and fittings by a registered notice dated 24-10-1978 and asked them to hand over possession on or after the midnight of 30-11-1978. Defendants 1 and 2 have replied the notice on 2/3-11-1978 and have illegally and without authorisation continued in possession of the plaint schedule property.
4. Defendants 1 and 2 by a written Agreement dated 11-10-1978 have sub-leased the plaint schedule properties to the defendant No. 3 illegally and without authorisation and without the knowledge of plaintiffs and therefore also the plaintiffs have become entitled to the possession of the suit schedule properties. The plaintiffs averred that the defendants 1 and 2 have sub-leased for running the morning shows the schedule premises to defendant No. 4 by an agreement dated 16-6-1978 and have thus forfeited their rights.
5. It is averred that defendants 1 and 2 by themselves or through their agents are continuing in illegal possession and have been exhibiting the films unauthorisedly and have gone to the extent of charging the machineries belonging to the plaintiffs to an extent of Rs. 35,000/- without any authority in that behalf. The plaintiffs 1 and 2 had leased out the property with the machineries projectors etc., to defendants 1 and 2 on rental of Rs. 2,750/- per month and the plaintiffs 3 to 5 have leased out the furniture and fittings to defendants 1 and 2 on the rental of Rs. 1000/- per month and the rent being above Rs. 500/- per month, the Rent Control Act is not applicable and the Court had jurisdiction to try the suit.
6. The plaintiffs alleged that defendants 1 and 2 are in arrears of rent and are also liable to pay damages for use and occupation of the premises and they limited their claim to Rs. 10,000/- of which Rs. 3,750/- are on account of arrears for the period from 30-10-1979 to 30-11-1973 and by way of past mesne profits Rs. 6,250/- from 30-11-1978 to 20-1-1979 the date of suit. They thus prayed for (1) declaring that the defendants are not entitled in the eye of law to exhibit the picture in the schedule property after the midnight of 30th November, 1978; (2) a permanent injunction restraining the defendants 1 to 4 from exhibiting any films after the midnight of 30th November, 1978; (3) possession of the suit schedule property with all the machineries, projectors, generators, electrical fittings, electrical motor, screen, furniture and other fittings etc. (4) any other relief deemed fit in the circumstances of the case; and (5) a decree for Rs. 10,000/- for the period from 30-10-1978 to the date of the suit and an order directing enquiry into the future mesne profits under Order 20 Rule 12 C.P.C. till the date of delivery of possession of the suit schedule property,
7. Defendants 1 and 2 contested the suit with the following averments:-
Plaintiffs 1 and 2 are not the owners of the theatre as such. They are the co-owners along with other legal heirs of late C.S. Krishna Chetty in respect of the building known as 'Opera House' and not as a theatre. They are not the absolute owners as far as machineries, projectors, generators, electric motor, electrical fittings, screen and other movables including the furnitures etc. found in the theatre. Defendants 1 and 2 are the absolute owners of the same. The building was taken on lease by the father of defendants 1 and 2 Raosahib S.V. Govindarajan, in the year 1945 and he converted it as a theatre after obtaining a valid licence and after purchasing the equipments necessary for running the theatre. After his death at a partition, the theatre fell to the share of the defendants 1 and 2. Defendants 1 and 2 are in exclusive possession and enjoyment of the theatre as the owners of all the movables including the materials, machineries, projectors, electrical motors, electrical fittings etc. Defendants 1 and 2 made the necessary deposits in the K.E.B. and electrical installations stand in their name. By misrepresentation and by playing a fraud on the defendants, the plaintiffs 1 and 2 got the alleged lease deeds. Defendants 1 and 2 never agreed to take the movables on the lease nor they executed any lease deed to that effect. Without allowing the defendants 1 and 2 to go through the papers, by playing a fraud, the plaintiffs 1 and 2 have obtained certain signatures. Plaintiffs 1 and 2 or plaintiffs 3 to 5 are not the owners of the movables. Defendants 1 and 2 never asked for grace time. The averments in that behalf are denied. Inspite of the efforts made by the plaintiffs to close down the theatre, the District Magistrate renewed the licence in favour of the defendants 1 and 2 and the appeal by the plaintiffs 1 and 2 to the Divisional Commissioner proved unsuccessful. Exchange of notices is admitted. But the contention that the defendants have any right to continue in possession and that they are trespassers is denied. The tenancy of defendants 1 and 2 is not at all terminated in accordance with law. Their tenancy commences from second of each English calendar month and ends on the first of the succeeding month. The suit for ejectment is misconceived. There are no agreements between the plaintiffs 3 to 5 and defendants 1 and 2 and even if there are such agreements they are fabricated ones. The allegations of sub-letting the theatre under the written consent of the plaintiffs 1 and 2 are denied. Agreement between defendants 1 and 2 and defendant No. 4 was rescinded long ago and even if it existed it was only for supplying the pictures and an agreement to supply pictures does not amount to sub-lease. Defendants 1 and 2 are the tenants and their tenancy has not been terminated and the Deputy Commissioner has granted licence in their favour and they are running the theatre and the plaintiffs cannot claim possession of the theatre and they are not entitled to any relief. The cause of action for the plaintiffs 1 and 2 is different from the cause of action alleged by the plaintiffs 3 to 5. There is misjoinder of parties and the suit is liable to be dismissed. There is also misjoinder of cause of action and the suit is liable to be dismissed. The plaintiffs 1 and 2 are not entitled to the relief claimed in the plaint. The machineries, electrical fittings, projectors, electrical meters, screen are the absolute properties of the defendants 1 and 2 and the plaintiffs have no claim over the same. The defendants 1 and 2 have spent lakhs of rupees for the improvement of the building and unless that amount spent on improvement is paid to them, the plaintiffs have no right to ask for any injunction, as they have specifically agreed to pay the improvement charges at the time of re-delivering the possession. The other heirs of late Krishna Chetty have filed the suit for declaration and possession in Original Suit No. 475 of 1964 and it is pending decision. The legal representatives of the late C.S. Krishna Setty are the necessary parties in the above suit, For non-joinder of the parties, the suit is liable to be dismissed.
8. By an amendment to the written statement, the defendants 1 and 2 took up the plea that the suit is not maintainable in the Court in view of Section 31 of the Karnataka Rent Control Act had been struck down and the Court had no jurisdiction to entertain the suit and the same was liable to be dismissed.
9. Defendants 1 and 2 filed the additional written statement contending that they were not in arrears of Rs. 3750/- and they were not liable to pay mesne profits by way of damages for use and occupation as claimed. They contended that upto the date of the suit, they had paid the rent at the agreed rate and they had also paid once again the rent from 1-11-1978 and plaintiffs had received the same and their claim for Rs. 10,000/- was unsustainable.
10. Plaintiffs filed a reply to the amended portion of the written statement and contended that striking down of Section 31 of the Karnataka Rent Control Act had no bearing upon the cinema theatre and the lease of the plaint schedule property which was a well equipped permanent cinema theatre with all the equipments e.g. machineries, fixtures, furniture and fittings etc. constituted a composite lease and the same could not be construed to be a mere ordinary tenancy of a building and therefore, the provisions of the Karnataka Rent Control Act had no application and the suit was maintainable before the Civil Court.
11. Defendant No. 3 did not file any statement, but defendant No. 4 filed a statement contending that defendants 1 and 2 had approached him on 9-6-1978 for taking morning shows of New Opera for exhibiting pictures in morning show on Residency Road, Bangalore-25, and by mutual consent, an agreement-deed was written and he had paid Rs. 3,000/-in the presence of witnesses as advance by cheque, but there was no co-operation by the defendants 1 and 2 in conducting the morning shows and they also demanded loans to pay taxes, Defendants 1 and 2 failed to repay the loans and resorted to coercive, violent and intimidative methods and the staff of the Talkies did not co-operate. Defendants 1 and 2 have stepped into the shoes of the plaintiffs for causing belief that they are the owners of the New Opera with malafide intention of grabbing money from the innocent customers and have cheated defendant No. 4, without disclosing the true facts. They have caused great loss to defendant No. 4. Defendant No. 4 has lodged complaints to Shoolay Police. The defendants 1 and 2 had kept defendant No. 4 in ignorance about the expiry of the lease by 30-11-1978. Defendants 1 and 2 are guilty of misrepresentation of facts, cheating and breach of contract. Defendant No. 4 prayed the Court to give him the relief by ordering compensation, The learned trial Judge framed the issues as under:-
"1. Whether the plaintiffs 1 and 2 prove that they are the owners of the schedule Cinema Theatre?
2. Whether the defendants 1 and 2 prove that they are the owners of the schedule Cinema Theatre including the moveables, materials, machineries, projectors etc., as alleged in the written statement?
3. Whether the defendants 1 and 2 further prove that the plaintiff obtained the lease deed by playing fraud on them?
4. Whether the plaintiffs have validly terminated the tenancy of the defendants?
5. Whether the plaintiffs 3 to 5 are the owners of the moveables and the defendants entered into an agreement as alleged?
6. Whether the plaintiffs are entitled for declaration as sought for?
7. Whether the plaintiffs are entitled for permanent injunction?
8. Whether the plaintiffs are entitled for possession of the schedule property with all the moveables as claimed?
9. Whether the plaintiffs are entitled for past mesne profits of Rs. 10,000/-?
10. Whether an enquiry into future mesne profits is necessary?
11. What order or decree?
Additional Issues:-
1. Is the suit not maintainable in view of Section 31 of the K.R.C. Act was struckdown and this Court has no jurisdiction to try the suit?
2. Whether the defendants 1 and 2 are barred by constructive resjudicata and the K.R.C. Act, 1961 is not applicable to the suit schedule property?
3. Is the suit not maintainable for misjoinder of cause of action and mis-joinder of parties as alleged in para-3 of the written statement?"
12. In support of the plaint averments, Plaintiff-1 gave evidence as P.W.1 and examined P.Ws. 2 and 3 to prove the lease-deed. Defendant-1 gave evidence as D.W.1. 111 documents have been marked for the Plaintiffs and 12 for the defendants. Appreciating the evidence, the learned trial Judge held that Plaintiffs 1 and 2 were the owners of the schedule Cinema Theatre and that they were also the owners of the movables excepting projectors, amplifier, screen and speakers and those four items of the movables belonged to the defendants 1 and 2 and there was valid termination of the tenancy and ownership of furnitures by the Plaintiffs 3 to 5 was accepted and acted upon and defendants 1 and 2 were paying them rent amount for having taken the same on lease. The learned trial Judge held that the lease was of the building and the movables including machineries, furnitures, fittings and the same constituted a composite lease and as such was outside the purview of the Karnataka Rent Control Act and the suit was maintainable. He also found that there was no mis-joinder of cause of action or mis-joinder of parties and on the basis of these findings, he proceeded to decree the suit partly directing the defendants 1 and 2 to deliver vacant possession of the 'Opera House' building, furniture, fittings, machineries, fixtures etc. to which the Plaintiffs were entitled to, but the Plaintiffs were not found entitled to possession of projectors, amplifiers, screen and speakers. The relief of declaration and injunction was also turned down, but the learned trial Judge directed an enquiry into the past and future mesne profits under Order 2D Rule 12 CPC and the suit against defendants 3 and 4 came to be dismissed with costs.
13. Being aggrieved by the judgment and decree made against them, defendants 1 and 2 have come in Appeal before this Court. The Plaintiffs 1 and 2 have also filed cross-objections against the rejection of their claim in respect of projector, amplifier, screen and speakers and the finding that the father of the appellants had taken further electrical supply required for running the Cinema Theatre,
14. During the pendency of the Appeal, the Plaintiffs 1 and 2 have made an application I.A.10 under Order 41 Rule 27 CPC for permitting them to place on record three documents by way of additional evidence. They have also filed an application for raising one more ground in their cross-objections in respect of pledge of Century 'C' Machine mentioned in the lease-deed Ex.D.1.
15. The learned Counsel Sri P. Vishwanatha Shetty for appellants, Sri B.P. Holla for Plaintiffs 1 and 2 and Sri C.J. Sundaradas for Plaintiffs 3 to 5 have been heard fully. They have also filed notes of their arguments. They have taken us through the evidence both oral and documentary and the Decisions relied on by them. In view of their submissions, the following Points arise for our Consideration:-
(1) Whether the finding of the trial Court that the lease in respect of the 'Opera House' is a composite lease and as such is outside the purview of the Karnataka Rent Control Act, 1961 is not correct as contended by the appellants?
(2) Whether the application filed by the respondents 1 and 2 under Order 41 Rule 27 CPC needs to be allowed?
(3) Whether the finding of the trial Court that the defendants are the owners of electric connection amplifier, projector, screen and speakers is not correct as contended by the plaintiffs?
(4) What Order?
16. Point No. 1 :- Late Mr. T.C.W. Skipp had purchased the immovable property bearing No. 24, Residency Road, and 101 and 101A, Brigade Road, from one Mr. James Watson under the Sale Deed dated 23rd August, 1913 and erected a Theatre on the said premises commonly known as 'Opera House' for the purpose of running the cinema shows arid other entertainments and after his death on 10th November, 1934 one of his heirs Mrs. Evelyn Elizebeth Holland Smith (Nee Skipp) obtained the letters of administration to the property and credits of the late Mr. T.C.W. Skipp and along with other heirs namely (1) Mr. Cyril Esomond Skipp (2) Mrs. Allicia May Skipp sold the property including all the buildings and structures known as 'Opera House' along with movable and immovables free of all encumbrances except the lease-hold rights of one R. Phul Chand in favour of Sri C.S. Krishnaiah Chetty and Smt. C. Rangamma the father-in-law and the mother-in-law of the first plaintiff on 20-7-1939, and the said sale deed is at Ex.P.60 and the details mentioned about the past ownership are available in that document. The Sale Deed Ex.P.60 covers the building, the movables and equipments contained therein as mentioned in the Schedule as under:-
Schedule of Furniture, Fixtures, Fittings and Machinery:-
Furniture:-
Upholstered Sofas (Two sealers) one damaged -32 Upholstered Sofas -do- Rosewood 22 Upholstered Chairs 76 Teakwood chairs with wood seats 4 Teakwood table 1 Teakwood Almirah 1 Teakwood Asbestos covered Almirah 1 Cast-iron Tip-up chairs with cushion backs and seats fixed on planks in sets of four 360 Cast-iron tip-up chairs with teakwood backs and plywood seats fixed on planks in sets of four 360 Brass and nickelplate ash trays 200 Cuddappa Slab Platforms (down and Upstairs) two Tiers each 2 Galvanised Iron Pipe Railings to platforms down and upstairs 7 Galvanised Iron Pipe Railings along steps below asbestos rooftings at the South Exterior 10 Teakwood Bar Counters 11 feet each (4 with Zinc sheet tops and 1 without) 5 Dealwood Screen 1 Teakwood and Glass Frames containing two tracings showing electrical arrangement of the Opera House 2 Water Closet Fittings (Downstairs) North and South Dressing Rooms 1 China Washbasin with Nickel cocks 2 Water Closets with covers complete 3 Flush Tanks with Chain (chain handles for two broken) 4 North Dressing Room Urinal with Flush complete 1 Built up Glazed Tile and Channel 1 Urinal with Pipe connection 1 Water Closet (Basement) Urinals connected complete 5 Water closets with covers 2 Flush tanks 5 China Wash Basin without chain and cover 1 Cast Iron Grid over U.Drin 1 Built upglazed tile and channel urinal 1 Half inch water tap and connection 1 Outside - Latrine Flush Tanks with half - inch water pipe and connection 4 Zinc Tank (small) with water connection 1 Half inch water tap 1 400 Gallons iron water tank with cover and ball cock 1 Indian Pattern seats 3 Indian Pattern Urinal 1 Manager's Quarters Bungalow Water Closets with covers connected complete 2 Half inch water taps with connection 2 Half inch water tap in compound and kitchen 2 Down Stairs Officers Bar Teakwood lead lined sink 1 Half inch water cock and connection 1 Coopers Shop Two compartments teakwood and lead covered wash sink with two half inch taps and connections 1 Upstairs south dressing room Teakwood lead lined sink 1 Half inch water cock and connection 1 Glass Pannelled partitions 2 Wooden shelf in wall 1 Downstairs south corridor Teakwood box office for ticket sellers 1 Compound Poster boards (24 sheets) on stone posts 2 Machinery and Electrical fittings Machine room: Direct Generators, coupled with Motor 2 Vot Motors 2 Teakwood switch board containing one triple pole switch 1 Starters 2 Regulators 2 Automatic switch cut outs 2 Teakwood switch hoard, with meter box containing one triple pole switch 1 Marble stone switch boards 4 Drop lights 3 Bracket lamp without lamp and shade 1 Large spanners for motors 2 Ameters 2 Bellows 1 Tommy Baor (steel) 1 coerator's Cabin Marble stone switch boards containing one volt meter and a meter 3 Drop lights 2 Bracket lamp 1 Down stairs south side Ladies Dressing Room Pendent lamps with shades 2 Wall bracket lamps in water closet with shades no bulbs 2 Fan Regulator 1 Down stairs South Corridor Fan Regulators lights 4 Dish with shades and bulbs complete 5 Bracket lamp (60 cycles) 1 Box Office Bracket lamps with shades 2 Office Pendant lamps with shades 2 West Corridor Dish light with shade and bulbs complete 1 Bracket lamp (60 cycles) 1 Downstairs Officers' Bar Fan Regulator 1 Bracket lamps without shades 1 Down stairs North Corridor Dish lights with shades and bulbs complete 4 Bracket lamp (60 cycles) 1 Fan Regulators 6 North and South Corridors (up and Down Stairs) Distribution boards (marble stone) covered in teak and glazed frame. 4 Gentlemen Lavatory Bracket lamps without bulbs 2 Pendant lamps with shades 2 Watercloset Bracket lamps with shades (without bulbs) 2 Stage: Reflecting lights containing three bulbs in each reflector 8 Distribution Board 1 Auditorium Electric fans 13 Double arms brackets with 20 Ruby tinted and white flambeau shades and bulbs 10 Dish lights with shades and bulbs complete 7 Upstairs Ladies Dressing Room (South Side) Bracket tamps without shades (1 without bulb) 3 Upstairs south Corridor: Bracket lamps with domes and bulbs complete 6 Dish lights, shades and bulbs complete 4 Drop light without shade 1 Fan Regulators 2 Upstairs West Corridor Dish lights with shades and bulbs complete 3 Electric Fans 3 Upstairs North Corridor Dish lights with shades & bulbs complete 3 Bracket lamps without shades : 6 Drop lights 2 Upstairs Gentlemen Dressing Room Bracket lamps 3 Drop light 1 West Porch Dish light with dome and bulb complete 1 Roof over step leading upstairs: Drop lights 3 Exterior South Porch and Basbestos Verandah Water tight fittings with domes and bulbs 5 Bracket lamp 1 Pendant lamps 3 Exterior North side of buildings: Water tight fittings without domes 4 Outside gate electric fittings: Flambeau shades fitted to eight gate pillars by overhead connection 8 Compound: Electric poles and wires in compound 8 Indian Latrine: Electric lamp with bulb 1 Drop light 2 Managers Quarters:-North and South Verandahs Bracket lamps 2 Hall drop lights 2 Pantry bracket lamp 1 West bed and dressing rooms bracket lamps 3 East bed and dressing rooms bracket lamps 4 Cooper's shop: Bracket lamp without shade 1 Pendant lights without shades 4 Neon sign Sighting. Auditorium Garland lights to bulbs 3 Ceiling: Stars 2 Swastika 1 Stup lights 2 "Ladies" and "Gentlemen" at the entrance of the dressing rooms upstairs and downstairs two each. Miscellaneous: Glazed Screen in Office 1 Teakwood Bench 1 Teakwood Treasure Box 1 Table Fans 2 Asbestos covered table 1 60 cycle wiring and fittings for lights including switches etc. in auditorium stage-sceneries, side wings etc., one lot on stage.
17. The Lease Deed between Mrs. Evelyn Elizebeth, Administratrix and Mr. R. Phul Chand is at Ex.P.61 in the records of the trial Court and it fully describes the property with the movables with cinema equipments. In this document there is a recital to the effect "the lessee hereby creates a charge against the Talkie Machine R.C.A. P.B. 91 Double equipment with all appurtenances thereto as described in Schedule "C" and that was purchased by the lessee from the lessors under a separate hire purchase agreement and a similar charge against all other movable articles situated in the above premises and belonging to the lessee."
18. It is in the evidence of the first plaintiff that one Sri Phul Chand was running the cinema house in the plaint schedule premises during 1939 and his predecessor in title purchased the property in the year 1939 and in 1944 the father of defendants 1 and 2 took the premises on lease, Ex.P.62 is a copy of the Lease Deed dated 29-9-1944 executed by Sri Rao Sahib S.V. Govindarajan, the father of defendants 1 and 2 in favour of Mr. C.S. Krishna Chetty and Mrs. C. Rangamma Krishna Chetty, the owner of the premises known as Opera House described in the Schedule to the Lease Deed. The Schedule in the lease-deed contains the details of the fittings, furniture, machineries and other equipments needed for running a cinema. Some of the important clauses of the Lease-Deed, on which, reliance is placed on behalf of the plaintiffs are as under:-
"The lessee shall pay to the lessors monthly a sum of Rs. 800/-being the rent plus Rs. 300/- being the hire of furniture, etc. The lessee has deposited with the Lessors the Century 'C' Machine in Opera House and has given the purchase receipt to the Lessors as security. The machine shall be removed by the lessee only after fulfilling the conditions and the terms of the lease.
The Lessee undertakes to take all means and measures of precautions at his own cost to prevent fire, accidents etc. and binds himself to make good the entire loss that may happen to the schedule property.
To keep the premises including the buildings, fittings, furniture and machinery in good condition at his own cost and to repair all damages to the premises to renew all breakages to bulbs, fitting's, furniture and machinery to whitewash, colourwash and oil paint and shall deliver the premises and all furniture fittings and machinery to the Lessors on the termination of the lease.
The lessee shall undertake to grant five permanent free passes for the use of the said Lessors or their relations or friends and to exhibit free of cost any slides supplied by the Lessors.
That the lessee shall run a "English Talkie" as long as it pays. To appoint a qualified electrician in his service and not to sublet the theatre.
19. The lease period under Ex.P.62 copy of which is at Ex.D.1 is 69 months and the same expired on 29-6-1950. Thereafter Rao Sahib S.V. Govindarajan became a tenant holding over and the landlords were receiving the rents from him. The said S.V. Govindarajan died in the year 1955 and in a subsequent family partition as per Ex.D.2 dated 15-7-1957, the lease hold interest in the plaint schedule property was allotted to defendants 1 and 2. Defendants 1 and 2 have been treated as tenants holding over by the predecessor in title of the plaintiffs.
20. Sri C.S. Krishna Chetty the father-in-law of the first plaintiff was entitled to a 3/8th share in the lease hold property and his wife Smt. Rangamma to the remaining 5/8th share and after the death of Smt. Rangamma on 17-8-1958, her husband a sole executor as per last will on 16-11-1959 sold her 5/8th share in the plaint schedule property to the first plaintiff - Sri K.R. Kanakarathnam Chetty under the sale deed Ex.P.39 and he further sold his own interest of 3/8th share in the said property to his daughter, the second plaintiff, on the same day. On the same day there was attornment of tenancy of the defendants 1 and 2 in favour of the plaintiffs 1 and 2. This is admitted by defendants in the written statement filed by them in Original Suit No. 475 of 1964 filed by some heirs of Sri Krishna Chetty as seen from para-4 of Ex.P.42 the written statement. Defendant No. 1 also admitted from the witness box that they had attorned the tenancy in favour of the plaintiffs 1 and 2 on 16-11 -1959.
21. Attornment is the acknowledgment of a new "Lord on the alienation of" land and the assent or agreement of the tenant to attorn, as" I become "tenant to the purchaser" as per Wharton's Law Lexicon, 14th Edition. Attornment does not create fresh tenancy but the tenants under the old tenancy relationship acknowledge the new landlords or owners of the property by purchase or inheritance. Possession of both movable and immovable property is continued with the tenants. Defendants 1 and 2 have not pleaded that movables were riot given to them by the plaintiffs 1 and 2.
22. Defendants 1 and 2 executed the lease deed Ex.P.1 dated 30th November, 1959 in favour of the plaintiffs 1 and 2. Some of the important clauses in that Lease Deed relied on by the plaintiffs are as under:
(e) The lessees shall at all times during the period of this lease keep the schedule premises in good and tenantable repairs and deliver up the same at the expiration or sooner determination of the lease.
(g) The lessees shall keep the pieces of furnitures and fittings and all other articles including machinery etc. belonging to the Lessors in a good condition.
(h) The Lessees shall immediately after the expiry of the period of lease vacate and hand over in good condition the buildings and all the pieces of articles therein to the Lessors and shall also be answerable to the loss of any of them and shall be liable to the loss and damage done by them or any person under their charge of employment.
(j) The rent of Rs. 1,250/- per month is to be realised from the Lessees by the Lessors in the following proportions:-
i) Sri Kanakarathnam Chetty
(for his 5/8th share) Rs. 781 -25
ii)Smt Yesodammal
(for her 3/8th share) Rs. 468-75
Total Rs. 1250-00 per month
and it is left to the choice of the two Lessors above named to realise or receive from the Lessees the rents in a lumpsum and apportion it or, if the Lessors so desire, to receive or realise the same separately.
(m) That at any time during the continuance of the lease not to carry on or permit to be carried on any offensive trade or business on the schedule premises.
Ex.P.1 refers to "furniture and fittings and all articles including machinery etc". Ex.P.1 was for a period of two years and the defendants 1 and 2 continued to be the tenants by executing the lease deeds subsequently. They executed the lease-deed Ex.P.2 on 6-1-1962 for a period of 55 months in favour of the plaintiffs 1 and 2. On 11-8-1966, the defendants 1 and 2 executed the lease deed Ex.P.3 for a period of 55 months in favour of the plaintiffs 1 and 2. After the lease period under Ex.P.3 expired, defendants 1 and 2 executed the lease-deed Ex.P.4 in favour of the plaintiff No. 1 only for a period of 55 months and another lease-deed Ex.P.5 in favour of plaintiff No. 2 only for the said period of 55 months. Thereafter on 1-10-1975, the defendants 1 and 2 executed another lease deed for a period of three years as per Ex.P.6 in favour of the plaintiff No. 1 only and a similar lease deed was executed in favour of the plaintiff No. 2 only on 27-9-1975 as per Ex.P.7.
23. Ex.P.4 provides for payment of rent of Rs. 937-50ps. as rent for the building and Rs. 468-75ps. as rent for the furniture, machinery etc. Ex.P.5 provides for payment of rent of Rs. 562-50ps. for the building and Rs. 281-25ps in respect of furniture and machinery. The plaintiffs placed reliance on some of the clauses in Exs.P.6 and P.7. The clauses relied on in Exs.P.6 are as under: -
(4) The Lessees shall keep the premises with all fittings fixtures and machineries etc. in a proper state of repair during the period of lease. In case any injury or damage is caused to the premises, or fittings, fixtures and machineries etc. they (Lessees) shall within two days thereof inform the Lessor and at the same time cause the same to be repaired and set right at their (Lessees) expenses within a reasonable time.
(5) The Lessees shall take all means and measures of the precautions at their cost to prevent fire and other accidents etc. and bind themselves to make good the entire loss that may happen in this regard to the schedule premises and properties with fittings fixtures and machineries etc. in the lease hold.
(6) The Lessees shall also be bound to maintain the electric supply and connection and the supply of Corporation Water connections in order and shall also keep the premises in good sanitary conditions. The lessees shall also take care that no injury or damage is caused to the premises with all fittings and fixtures and machineries etc. by virtue of accumulation of any water including rain water, in urinals and in bath rooms etc. and on account of disrepairs to the machineries electric connections, water supply connections or fittings etc. (7) The Lessees shall at all times during the period of lease keep the schedule premises buildings, with all fittings, fixtures and machineries etc. neat tidy in good tenantable and enjoyable conditions.
(8) The Lessees shall cause the schedule premises along with all fittings, fixtures and machineries thereof duly insured in the name of the Lessor at reasonable value and for his (Lessor's) benefit pay the premium and duly hand over to Lessor the insurance policies and the receipts for the periodical payments of the premiums for the same.
(10) Any white wash or colour wash and oil painting of the schedule premises and repairs, structural alterations of the fixtures, all additions, fittings or such other safe-guard as required by the Departments of Municipal or Government Health, Engineering, Police, Electrical etc. and shall be effected by the Lessees at their costs only, whether Lessees or Lessor are so directed by the authorities, and lessor shall have no responsibility whatsoever in this behalf but Lessor's consent in writing will be obtained before effecting any such repairs or alterations; to keep the premises including building, fixtures and machineries etc. in good condition and to repair all damages to the premises, to renew all breakages to bulbs, fittings, machineries and fixtures etc., and shall deliver the premises to the lessor on the termination or sooner determination of this lease deed in good condition and shall not claim any compensation or any improvements that the Lessees might have effected to them and shall not disturb and dismantle any such work or remove them from the premises.
(16) The lessees shall keep the premises, with all fittings machineries and fixtures etc., belonging to the lessor in a good condition. The lessees shall replace the worn out fittings, machineries and fixtures etc. with new ones then and there without fail or any delay at their expense and cost.
(26) The lessees shall immediately after expiry of the period of lease or sooner determination of the lease, vacate and hand over possession of the schedule premises with alt fittings machineries and fixtures etc. in good condition to the lessor failing which lessees shall pay to the lessor the damages until the lessor is actually put in possession of the schedule properties and premises.
24. Defendants 1 and 2 have continued to be in possession not only of the building but also of the furniture, fittings, machineries and other movable articles and equipments noted in the Lease Deed. They are nothing but the furniture and the other movables mentioned in the earlier Lease Deed Ex.P.62 dated 29.9.1944 in which were mentioned the details of the movables, furnitures, machineries etc. found described in the schedule to the Sale Deed at Ex.P.60 executed by the heirs of late Mr. Skipp, the original owner in favour of Sri Krishna Chetty and his wife Smt. Rangamma, the parents-in-law of the first plaintiff. If any furniture, fittings etc. are replaced then they will go to the lessors as provided in the lease-deeds and have to be surrendered and delivered to the lessors at the time of surrendering of the premises after the expiry of the lease period.
25. In the light of the above back-ground of the erection of 'Opera House' by the original owner Mr. Skipp its lease in favour of Sri R. Phul Chand, sale of the building with furniture, fittings machinery etc., in favour of Sri C.S. Krishna Chetty and his wife subject to lease and subsequent lease of the premises in favour of Sri Rao Sahib S.V. Govindarajan and further sale of the premises in favour of the plaintiffs 1 and 2 and allotment of the lease hold property in the partition among the family members in favour of the present appellants and subsequent lease deeds by the appellants in favour of the plaintiffs 1 and 2 and their children, the contentions advanced in this appeal need to be examined. The first contention on behalf of the appellants is that there is no plea raised in the plaint that the lease in question is a composite lease consisting of lease of the building and the lease of furnitures, fixtures, machinery and other equipments leeded for running a cinema theatre. The next contention raised is that there was lease of only the building and not lease of building and other fittings, furnitures, cinema equipments etc., and it is further contended that the lease in question is governed by the provisions of the Karnataka Rent Control Act, 1961 and plaintiffs 1 and 2 by themselves or with their children plaintiffs 3 to 5 are not entitled to evict them from the plaint schedule premises unless they make out grounds provided under Section 21 (1) of the Karnataka Rent Control Act, 1961. It is urged on behalf of the appellants that the lease of the plaint schedule property falls within the definition of "premises" in Section 3 (n) of the Karnataka Rent Control Act, 1961 and therefore the eviction order passed without recourse to the provisions of the Karnataka Rent Control Act, 1961 is not correct and sustainable.
26. In support of the above contentions the learned Senior Counsel Sri P. Vishwanatha Shetty for the appellants - defendants 1 and 2 pointed out that there is no mention of projector for running the cinema in Ex.P.60 dated 20th July, 1939. He pointed out that in the Lease Deed Ex.P.61 dated 18.5.1939 executed between Mrs. Evelyn Elizebeth Holland Smith (Nee Skipp) and Mr. Phul Chand there is a recital in respect of the talkie machine with equipment and appurtenances on which a charge is created as security for the performance of conditions of the lease. The learned Counsel pointed out that there was no mention about the lease of running cinema in the Lease Deeds and therefore according to him it was only a lease of the building simpliciter and not a lease of the cinema theatre. With reference to Ex.P.1, the Lease Deed by the appellants on 30.11.1959, the learned Counsel pointed out that there is no schedule of the movables mentioned in Ex.P.1 and therefore it was only a lease of the building and there was no intention to lease-out a theatre. The appellants contended that the object of Ex.P.62 was only a lease of the building. With reference to the subsequent Lease Deeds also namely Ex.P.2 to Ex.P.7, the contention advanced is that they are in respect of the lease of the building only.
27. With regard to the first contention of absence of pleading in respect of the composite lease, what deserves to be noted is that on the date the suit was filed in the year 1979, Section 31 of the Karnataka Rent Control Act, 1961 (the Act for short) provided that the provisions contained in Part-V of the Act did not apply to a non-residential building, the monthly rent of which exceeded Rs. 500/-or the annual rental value of which exceeded Rs. 6000/-. The rent in respect of the plaint schedule premises exceeded Rs. 500/- per month. It was averred in the plaint that the provisions of the Rent Control Act did not apply to the suit lease. Subsequently Section 31 of the Act was struck-down by this Court by its Judgment dated 1.7.1986 in H. PADMANABHA RAO v. STATE OF KARNATAKA 1. . Therefore the appellants amended their written statement on 25.6.1988 contending that the provisions of the Karnataka Rent Control Act covered the lease in question and the suit was not maintainable before the Civil Court as Section 31 of the Act had been struck-down and that the Civil Court had no jurisdiction to entertain the suit. Since the appellants amended their written statement, the Trial Court permitted the plaintiffs to file a reply by way of re-joinder in which they contended that the lease of the plaint schedule property which was well equipped permanent cinema theatre with all the equipments namely machineries, fixtures, furniture and fittings etc., constituted a composite lease and was not a lease of mere ordinary tenancy of a building, and therefore the provisions of the Act were not attracted. It is therefore clear that to say that there is no pleading in respect of the suit lease being a composite lease amounts to overlooking the pleadings available in the case. It is also to be noted that in view of the above plea put forth by the parties, the Trial Court raised an additional issue reading as under: -
"Is the suit not maintainable in view of Section 31 of the K.R.C. Act was struck down and this Court has no jurisdiction to try the suit?"
The parties adduced evidence on the above issue and addressed the arguments and have taken a finding. According to the Decision in NAGUBAI AMMAL v. B. SHAMA RAO 2. even if there is no plea or no issue but parties join issue on a particular point and go to trial with knowledge that a particular question is in issue, then the absence of the plea is immaterial. Considered from this point of view the Trial Court was right in proceeding to decide the controversy in question and the absence of formal plea or issue is not of much consequence. In the instant case, the parties well knew that the applicability of the provisions of the Act with regard to the lease in question was in issue and the parties have concentrated on the same and let in evidence and have helped the Court to resolve the same. Therefore they cannot in the appellate Court take up the plea that there was no formal plea of suit lease being a composite lease.
28. The next question for consideration is, whether the lease of the plaint schedule premises is covered by the definition of 'premises' in Section 3 (n) of the Act which defines 'premises' as meaning -- (i) a building as defined in Clause (a); (ii) any land not used for agricultural purposes. The second part of the definition of 'premises' in Section 3 (n) is not material for the purpose of this case. The definition of the "building" contained in Clause (a) of Section 3 is material and it reads as under:-
"Building" means any building or hut or part of a building or hut other than a farm house, let or to be let separately for residential or non-residential purpose and includes-
(i) the garden, grounds and out-houses, if any appurtenant to such building, hut or part of such building or hut and let or to be let along with such building or hut or part of building or hut;
(ii) any furniture supplied by the landlord for the use in such building or hut or part of a building or hut;
(iii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof, but does not include a room or other accommodation in a hotel or a lodging house."
From the definition of the 'building' referred to above in Section 3(a)(iii) the fittings referred to therein are of two types - (1) being the fittings which are for the more beneficial enjoyment of the building and the other (2) being the fittings which are not for the more beneficial enjoyment of the building. The normal principle of construction of statute is to give effect to everything expressed therein and not to treat any of the words as redundant or unmeaning. Every provision in an enactment has a meaning and significance. For this proposition, reliance is placed on (1) ASWINI KUMAR GHOSE v. ARABINDA BOSE 3. and (2) FIREBRICKS AND POTTERIES LTD. v. FIREBRICK AND POTTERIES LTD. WORKERS' UNION 4. AIR 1956 Mys. 7 (3) NELLURU SUNDAR RAMAREDDl v. STATE OF ANDHRA PRADESH 5. . In view of the above cardinal Rule, the definition of 'building' in Section 3(a) especially Sub-clause (iii) has to be given its necessary meaning. The machinery needed for running a factory or the equipments needed to run a cinema theatre namely screens, number of chairs, sofas, dynamos and other movables mentioned in the Lease Deeds Exs.P.61 and P.62 cannot be stated as the fittings fixed to the building for the more beneficial enjoyment of that building. Such fittings like, air-conditioners, fans, domestic appliances, solar heaters etc. are for the more beneficial enjoyment of the building. If the fittings are machines for running a particular factory, they cannot be described as the fittings for the more beneficial enjoyment of the building. Such fittings would be fittings necessary for running a factory and not for the beneficial enjoyment of the building by the tenant. Having regard to the special meaning to be attached to the clause "fittings affixed to such building or part of a building for the more beneficial enjoyment thereof," it is to be seen whether the lease of the building with movables, machineries, furnitures and other fittings found mentioned in Ex.P.61 and P.62 and the subsequent Lease Deeds Exs.P.1 to P.7 is one of the building alone or whether the lease is of the building and other fittings which make it a composite lease not falling within the definition of the 'building' found in Section 3(a) of the Act. The contention of the appellants is that having regard to the terms of the Sale Deed and the lease deeds placed on record in the case the inference to be drawn is the lease in question is of the mere building and not a lease of the building and other equipments including the machines, furnitures, and other fittings making a composite lease thereof not falling within the scope of Section 3(a) of the Act.
29. Plaintiffs in support of their contentions, relied on the principles enunciated in (1) UTTAMCHAND v. S.M. LALWANI 6. and (2) DWARAKA PRASAD v. DWARAKA DAS SARAF 7. . In Uttamchand's case which involved a lease of Dal Mill building with fixed machinery and accessories, it is observed that the Court must apply the test of dominant intention of the parties. The Court must determine the character of the lease by asking itself as to what was the dominant intention of the parties in executing the document, Uttamchand's case is under M.P. Accommodation Control Act, 1955 of which Section 3(a)(y)(3) is in pari materia with Section 3(a)(iii) of the Karnataka Rent Control Act. Interpreting that provision containing the reference to fittings fixed to such building or the part of the building for the more beneficial enjoyment thereof, the Supreme Court ruled that the fittings of the machinery in the present case could not be said to be fittings which had been fixed for the more beneficial enjoyment of the building. The fittings to which Section 3(a)(y)(3) refers are obviously for the person occupying the building. That being so, it was clear that the fittings in question did not fall under Section 3(a)(y)(3). If the fittings in question had attracted the provisions of Section 3(a)(y)(3) there would have been no difficulty in holding that the lease was in respect of accommodation as defined by the said provision, under the M.P. Accommodation Control Act, 1955.
29A. Dwaraka Prasad v. Dwaraka Das Saraf is a Decision under U.P. (Temporary) Control of Rent and Eviction Act, 1954 dealing with "accommodation" which has meaning similar to the meaning of Section 3(a) of the Karnataka Rent Control Act, 1961. Clause (3) of the definition of accommodation in U.P. Act contains reference to the fittings fixed to such building or part of a building for the more beneficial enjoyment thereof as is the case in Clause (iii) of Section 3(a) of the K.R.C. Act. Interpreting this provision, the Supreme Court said that "these additions are appurtenant, subservient and beneficial to the building itself and they make occupation of the building more convenient and pleasant but the principal thing demised is the building and the additives are auxiliary. Where the lease is composite and has a plurality of purposes, the decisive test is the dominant purpose of the demise. Under the Act the protected category of accommodation is residential and non-residential buildings and not business houses," As against these Decisions the appellants relied on (1) K. KUNGU GOVINDAN v. PARAKKAT KUNHILAKSHMI AMMA 8.
(2) MOHAMMED JAFFER ALI v. S. RAJESWARA RAO 9. (3) KARNANI PROPERTIES LTD. v. MRS. AUGUSTINE 10. (4) Dr. A.K. SABHAPATHY v. STATE OF KERALA11. (5) ANANT GADRE v. SMT. GOMTIBAI 12. (6) KARSANDAS RAMJI v. KARSANJI KALAYANJI 13. AIR 1353 Saurashtra 113 (7) J.H. IRANI v. T.S.PI.P. CHIDAMBARAM CHETTIAR 14. . The cases relied on by the appellants under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, (15 of 1960) and the Kerala Buildings (Lease and Rent Control) Act (16 of 1959) contain the definition of 'building' which does not contain the clause "fittings fixed to such building or part of a building for the more beneficial enjoyment there of" as found in the Karnataka Rent Control Act, 1961 or the UP, (Temporary) Control of Rent and Eviction Act (3 of 1947). A comparative statement of definitions of 'building' found under the four enactments as furnished by the learned Counsel for the appellants is as under:-
"Uttar Pradesh (Temporary) Control of Rent and Eviction Act (3 of 1947) "Accommodation" means residential and non-residential accommodation in any building or part of a building and includes.
i) gardens, grounds and out houses, of any appurtenant to such building or part of a building;
ii) any furniture supplied by the landlord for use in such building or part of a building.
iii) any fitting affixed to such building or part of a building for the more beneficial enjoyment thereof.
The Amending Act added a clause reading thus:-
"But does not include any accommodation used as a factory or for an industrial purpose where the business carried on in or upon the building is also leased out to the lessee by the same transaction."
"Andhra Pradesh Buildings (Lease, Rent And Eviction Control) Act (15 of 1960) Section 2 (iii) - "Building" means any house or hut or part of a house or hut let or to be let separately for residential or non-residential purposes and includes -
a) the gardens, grounds, garages and out-houses, if any, appurtenant to such house, hut or part of such house or hut and let or to be let along with such house or hut or part of such house or hut;
b) any furniture supplied or any fittings affixed by the landlord for use in such house, hut or part of a house or hut, but does not include a room in a hotel or building or boarding house.
"The Kerala Buildings (Lease and Rent Control) Act (16 of 1959) Sub-section (1) of Section 2 defines the expression "building" and it is as follows:
1) "building" means any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes and includes-
a) the garden, grounds, wells, tanks and structures, if any, appurtenant to such building, hut or part of such building or hut, and let or to be let along with such building or hut;
b) any furniture supplied by the landlord for use in such building or hut or part of a building or hut; but does not include a room in a hotel or boarding houses."
Clause (b) of Sub-section (1) of Section 2 of the Principal Act, after it has been so amended, will read thus:
"any furniture supplied or any fittings affixed by the landlord for use in such building or hut or part of a building or hut: but does not include a room in a hotel or boarding house.
The definition of "building" under the Madras (Lease and Rent Control) Act also does not contain the similar clause of the fittings affixed to the building for the more beneficial enjoyment thereof, as found in the Karnataka Act. In paras 23 and 24 of the Judgment in Dwaraka Prasad v. Dwaraka Das Saraf the Supreme Court distinguished the Decisions in Mohammed Jaffer Ali v. S. Rajeswara Rao, K. Kungu Govindan v. Parakkat Kunhilakshrni Amma, Karnani Properties Ltd. v. Mrs. Agustine.
Para-23 of DWARAKA PRADAS's Case reads as under:-
"It is true that in Jaffer Ali's case, (FB) and in Govindan's case (the Andhra and Kerala decisions referred to above) cinema theatres have been held to fall within the definition of building, under the relevant rent control law of those States. A bare reading of the two cases would show that certain amendments had been made to the parent statutes whereby the definition was expanded and its wide range was made to include all tenancies relating to all structures, even though accessories, furniture and fittings for use in the house were also made over. There is no doubt that the word 'fittings' may take in a projector or other apparatus used for a cinema but it is one thing to say that apparatus is fixed in a building and it is another to say that such fixture or apparatus is for the beneficial enjoyment of the building. Therefore it depends on the words used reflecting the legislative policy of each State Legislature. Indeed in Venkayya v. Venkata Subba Rao, AIR 1951 Andh. 619 a Division Bench of the Andhra Pradesh High Court considered whether the lease of a fixture comprising buildings and machinery came within the sweep of the Rent Control Law. The Court held that the lease of a running factory comprising costly machinery intended to be used for manufacture, did not fall within the definition. The question, in each case, the learned Judges pointed out, would be what is the dominant part of the demise and what the main purpose for which the building was let out is. In Amritlal N. Shah v. Annapurnamma, the same court held that the lease of a cinema did not come within the purview of Madras Act 25 of 1949. Definitional ramifications need not detain us nor decisions turning on them."
As been from above, a bare reading of the Decision of Jaffer Ali's case and Govindan's case would show that amendments have been made to the parent statute whereby the definition was expanded and its wide range was made to include all the tenancies relating to all structures, even though accessories, furnitures and fittings for use in the house were also made over. The Court further explained that the word 'fittings' may take in a projector or other apparatus used for a cinema but it is one thing to say that apparatus is fixed in a building and it is another to say that such fixture or apparatus is for the beneficial enjoyment of the building. Therefore the two Decisions of the Full Bench of Andhra Pradesh High Court and Kerala High Court do not help the appellants in the case.
30. Further as pointed out in para 24 of the Judgment in Dwaraka Prasad's case, the Decisions in Karasandas v. Karsanji and Karnani Properties Ltd. v. Miss. Augustine turned on the precise language used. The Supreme Court in that behalf dealt with those cases as under:-
"Shri Tarkunde pressed upon us the decision in Karsandas v. Karsanji, AIR 1953 Sau 113 and Karnani Properties Ltd. v. Miss Augustine, . One of them did refer to a cinema theatre with fittings and generators. Certain Calcutta decisions, Kali Prasad v. Jagadish Pada, and D.S. Jain v. Meghamala Roy (1964) 68 Cal. WN 1136 were also cited before us. In all these cases, the decision turned on the precise language used. We do not see any need to discuss these and the other decision cited before us because we have explained why the conclusion we have reached is in consonance with the sense, purpose and language of the Act. For the same reason we content ourselves with merely mentioning that in Harisingh v. Ratanlal 1969 Jab LJ 639 a Division Bench of Madhya Pradesh High Court held that a fully equipped cinema theatre let out for showing films on a commercial basis, being of a running cinema theatre, fell out of the scope of accommodation on the score that costly fittings, fixtures and equipment could, in no sense, be regarded and meant for the beneficial enjoyment of the building in which the cinema theatre was housed. The primary object and the definitional language used determine the issue."
Paras 7 to 10 at page 27 of the M/S. STANDARD CASHEW INDUSTRIES v. N. KRISHNAN 15. bring out the difference in language used in the definitions of 'building' or 'accommodation' in the different Rent Control Acts by amendments effected to the Kerala Buildings (Lease and Rent Control) Act, 1965. The building includes any fittings or machinery fixed to or installed in such building or part of such building and intended to be used by the tenant for/or in connection with the purpose for which such building or part of such building is let or to be let but does not include a room in a hotel or boarding house, This definition would differentiate the fittings affixed in a building for the more beneficial enjoyment of that building. Under the definition of Kerala Act fittings meant for running cinema theatre come within the definition of the "building" and therefore the cinema theatre is governed by the provisions of the Kerala Buildings (Lease and Rent Control) Act and therefore in view of the difference in the definition of the word 'building' found in Kerala Act, the Decision of the Kerala High Court is of no use and has no application to the facts on hand.
31. In Jaffer Ali's Case, the Andhra Pradesh High Court has referred to Dal Mill's Case and has pointed out the difference between the two enactments involved. The facts of the case referred to above in the earlier portion of this Judgment disclose that there was lease of not merely the building but also machines, fittings, furnitures and other equipments needed for running a cinema theatre. Ex.P.60 the Sale Deed in favour of Sri. C.S. Krishna Chetty and his wife Smt. Rangamma contains the details of the furnitures, consisting of upholstered sofas 32, another 22 upholstered sofas of rosewood, 76 upholstered chairs, Teakwood almirahas 2, cast-iron Tip-up chairs 360+360 water closets with urinals, 5 flush tanks and other articles and machines and these clearly show that they are not for the beneficial use of the tenement but they are meant for running the cinema theatre. Ex.P.60 as stated already contains reference to T.C.W. Skipp the father of the vendors having erected a theatre commonly known as the 'Opera House' for running cinema shows and other entertainments. The first Lease Deed Ex.P.61 between Mrs. Evelyn Elizabeth Smith and Mr. R. Phulchand also contains details of the furnitures and fittings as found in the Sale Deed. There is also reference to Schedule 'C' containing details of Talkie Machine R.C.A.P.G. 91 over which a charge is created for due performance of the conditions of the lease and an undertaking not to remove the same till all the balance amounts under the lease is cleared. Under Ex.P.62, the applicants' father executed the first lease deed. The schedule to this Ex.P.62 contains the details of movables such as upholstered sofas, teakwood alimirahs, cast-iron Tip-up chairs, upholstered chairs, cast-iron Tip-up chairs with teakwood backs, wash basins and other details of office equipments and machineries. There is also mention of depositing with the Lessors the Centrury 'C' Machine in the 'Opera House' and giving the purchase receipts to the lessors as security and an undertaking not to remove the machine by the lessee till the conditions or the terms of the lease are fulfilled. The rent is stated to be Rs. 800/- + Rs. 300/- being the hiring of furniture etc. totalling Rs. 1,100/-. Obviously under Ex.P. 12 the lease is not merely of a building as made out. No doubt the appellants contended in the written statement that their father took only building on lease and converted it into a cinema theatre and furnished it with necessary furnitures and fittings. In this behalf the evidence given by the appellants is inconsistent with their plea. D.W.1 has stated that only a few broken furnitures were there when the building was taken on lease and the same had been returned by his father to the lessee. Supporting that version no material was placed before the Court. On the other hand the evidence was only with regard to returning of furniture items and not with respect to the other movables and machineries found in the building, as seen from the schedules to the sale deed and the lease deed. Though same plea is put-forth with respect to subsequent Lease Deeds Exs.P.1 to P.7 evidence let in that behalf is also inconsistent with the pleadings. False documents are stated to have been got up with blank papers on which their signatures were taken and the same had been fraudulently converted into Lease Deeds. While giving evidence, this version was given up and execution of the Lease Deeds was admitted. But a grievance was made about the contents of these Lease Deeds. If the misrepresentation is with reference to the contents of the document and not with reference to the character of the document, the document is a voidable document and the party is at liberty to avoid the same by filing the suit within a period of three years from the date of the document as per the Decision reported in NINGAWWA v. BYRAPPA SHIDDAPPA (SIC) 16. AIR 1968 SC 596. The evidence sought to be adduced is contrary to the terms of the registered lease deeds.
32. It is necessary to point out that the first plaintiff as P.W.1 has stated that Mr. Phulchand was running cinemas during the year 1939. P.W.1's predecessors had purchased the theatre in the year 1939 and Sri Phulchand was running the theatre till about 1944 in which year the father of the appellants took it on lease.
33. One of the terms of Ex.P.62 the lease-deed by the father of the appellants mentions that the lessee shall run a "English Talkie" as long as it pays and he was to appoint a qualified electrician in his services and not to sublet the theatre. The appellants came out with the version that their father had taken the building on lease in the year 1945 and converted it as a theatre after obtaining a valid licence for running the theatre and he had purchased the necessary equipments. In Cross-examination first appellant as D.W.1 has admitted as under: -
"My father had taken this building for the purpose of running Cinema. My father had executed a registered lease deed in favour of Krishnaiah Chetty, as per Ex.D.1.
When my father had taken the premises on lease, there were some broken furniture in the said premises. These furnitures were not in good condition to be used in Cinema theatre. Therefore, my father returned those damaged furniture to Krishnaiah Chetty. My father purchased new furniture required to run the theatre.
My father had taken on lease only the broken chairs and furnitures which is returned to the Lessors. In the 1945 agreement, it is already stated that old furnitures were returned to Lessor. We have produced the registered lease deed of 1945. This is not mentioned in Ex.P.62. Now I say Ex.P.1 also does not contain that my father returned those old furnitures. It is false to suggest that my father did not return any furniture to Krishnaiah Setty. We have not produced any document to show that we returned those furnitures to Krishnaiah Setty.
The furniture mentioned in Ex.P.62 were given back to the owner landlord.
The equipments, machineries and furnitures given to my father by the landlord mentioned in the lease deed of 1945. My father had taken the lease in his own name. I have not produced any document to show that my father purchased projector, screen, and other equipments. All these are mentioned in the lease deed of 1945 as that my father purchased and furniture in 1945 to run the Cinema theatre. I do not know from whom, when and for what price furnitures were purchased by my father in 1945. We have not produced any documents to show that our father returned the old damaged furniture to Krishnaiah Setty. It is false to suggest that when the building was leased to my father, it had machinery, equipments and furnitures and my father had taken all these things on lease from Krishnaiah Setty. It is false to suggest that my father had not returned any furniture to Krishnaiah Setty, My father was running this picture theatre from 1945 to 1956. Till his death i.e. the year 1955 the lease was in his name, Every 5 years my father was changing the furniture as per the order of the District Deputy Commissioner to change the furniture once in five years. We have not produced any document to show that we changed furniture once in 5 years, it is false to suggest that my father had not changed the furniture. It is further false to suggest that all the furniture given by Krishnaiah Setty are still in the theatre and they have not changed."
The above admissions show that there is no consistency in the versions put forth by the appellants and there is no acceptable evidence supporting the same. Though number of movables, machineries, equipments are there, the appellant speak only of return of few furniture items and thus they have given a go-by to their version, and have rendered the same unacceptable.
34. The evidence adduced by the appellants in support of their plea in the written statement is contrary to the terms of the written lease-deeds. There is no plea that the written lease deeds placed on record are the result of fraud practiced on them. Though Exs.P.1 to P.7 are contended to be fraudulent documents, that plea has been given up and D.W.1 has admitted execution of the same. It is therefore impermissible for the appellants to adduce evidence contrary to the written lease-deeds and Sections 91 and 92 of the Evidence Act prohibit the same. Terms of the registered document can be modified by another registered deed only and not by pleadings or oral evidence. This is clear from DURGA PRASAD SINGH v. RAJENDRA NARAIN BAGCHI 17. ILR Vol 37 (1910) Calcutta 293, SMT. SHANTHI DEVI v. AMAL KUMAR BANERJEE 18. AIR 1981 SC 1550 RAVAL AND CO., v. K.G. RAMACHANDRAN 19. . Therefore discarding the oral evidence contrary to the terms of the written lease deeds it is to be held that movables mentioned in the lease deeds have been taken on lease and these movables cannot be said to be for the more beneficial enjoyment of the tenement as would be the case in respect of the fans, water heaters, air coolers, window blinds, home gadgets etc.
35. The appellants have contended that the furnitures and fittings in the case were few items and that too were damaged and broken ones and the same had been returned and the furnitures fixed in the plaint schedule premises were the ones purchased by them and they have been changing them once in every five years as required by Cinematograph Rules. For having returned the damaged or broken pieces of furnitures, they have not produced any documentary evidence by way of receipt or acknowledgments. They have also not produced material to show that new items of furnitures have been purchased by them and fixed in the premises. Further the terms of the Lease Deeds disclose that at the time of surrendering the premises at the expiry of the lease term, they will hand over all the fixtures furnitures in sound condition to the lessors. There are also terms to indicate that the damaged items would be replaced and delivered possession of to the lessors. These terms and the evidence indicate that the version of the appellants is not at all reliable and they have not returned the furnitures taken at the time of taking the building on lease. Their version that after the plaintiffs 1 and 2 purchased the premises from Sri C.S. Krishna Chetty and his wife Smt. Rangamma, there is no delivery of furniture items and other movables to them is contrary to their case. They have never pleaded so in the written statement. It is obvious that what was contained in the theatre was sold by Sri Krishna Chetty and his wife Smt. Rangamma, to plaintiffs 1 and 2 and there is attornment of lease which means that the tenants-appellants continued with the building with fittings and other movables acknowledging the new landlords who had become the owners by purchase. Therefore there is no occasion for giving fresh fixtures, fittings, machineries to the appellants and the evidence placed on record in that behalf is ignored and they cannot make much of that.
36. It is to be seen that the lease under Ex.P.62 by Sri S.V. Govindarajan, the father of the appellants was for a period of 69 months and the same expired on 29.6.1950. Thereafter the tenants continued to pay the rent and the same was received by the lessors. Under such circumstances, the lease under Section 116 of the Transfer of Property Act was renewed in favour of the tenant holding over and the same was assignable and heritable as held in BENGAL NATIONAL BANK LTD. v. JANOKINATH ROY 20. AIR 1927 Calcutta 725. The appellants have contended that as per the terms mentioned in the partition deed Ex.D.2 dated 15.7.1957, the movables, fittings, furnitures in the lease hold property belonged to them. That recital in the partition deed is not binding on the plaintiffs 1 and 2 as they are not parties to the same. As already seen the appellants have not produced any evidence to show that they had purchased those items. With the above material it is clear that the appellants had taken not merely the building but the furnitures, fittings, machines and other equipment needed for running the cinema theatre and as seen from the terms of the lease-deed, the object was to run "English Talkie" that is obviously a cinema theatre and the lease was never only in respect of a building. The terms of the lease indicated that certain number of free passes are to be made available every day by the lessees to the lessors. They are also to exhibit the slides furnished by them free of cost. These are all acts to be done in a cinema theatre and not in a building leased for some other purpose. The dominant purpose of the lease therefore is to run a cinema theatre in the building with the furnitures, movables, machineries and equipments provided therein.
37. It is true that the theatre is not equipped with projector, amplifier and screens for running the cinema and in that behalf as seen from Ex.P.62 the lease-deed, similar to Ex.D.1, the Century 'C' machine for projecting the cinema film purchased by the lessee is deposited with the lessors as security for due performance of the terms of the lease. When thus the machine is deposited for due performance of a promise the bailment of goods as security is called a pledge under Section 172 of the Indian Contract Act. But there is nothing to indicate in this case that the said machine had been leased back to the lessees by the lessors. The learned Counsel for the respondents-plaintiffs contended that the lessees have been permitted to make use of the projector and therefore it must be deemed that the projector is also part of the subject of the lease and according to him the projector assumes the character of lease hold property. This submission is without any basis. It is based on mere surmises. The learned Counsel in this behalf placed reliance on the decision reported in MERCANTILE BANK OF INDIA LTD. v. CENTRAL BANK OF INDIA LTD 21. AIR 1938 PC 52. This is a Decision dealing with the pledge of a railway receipt which is a document of title and the general law in that behalf as stated therein is that a pledge of documents is not prima facie deemed to be a pledge of the goods. Therefore the submission of the learned Counsel for the appellants that the lessors had leased back the Century 'C' Machine with the screens, amplifiers, and speakers cannot be accepted.
38. It is seen that the lease of the 'Opera House' with furnitures, fittings, machineries and equipments is made in favour of the appellants and it is without the projector, amplifier, screen and speakers but the absence of amplifier, and projector cannot push one to the conclusion that the lease of the premises with other fittings and machineries was not for running a cinema theatre and it was only a lease of bare building with those fittings meant for more beneficial enjoyment of that building. In fact it is a lease of the building with furnitures, movables, machineries and equipments meant for running a cinema theatre and such lease is a composite lease and the same does not come under the provisions of the Karnataka Rent Control Act, 1961 and therefore the lease in question being a composite one is not covered by the Karnataka Rent Control Act.
39. The learned Counsel for the appellants relied on Anant Gadre v. Smt. Gomtibai and contended that the lease of cinema building with furniture, fans and other fittings but without projector or other machinery amounted to lease of accommodation but not of cinema business and such lease is governed by the Karnataka Rent Control Act, 1961. The Decision in Anant Gadre v. Smt. Gomtibai appears to support the contention of the appellants. In that case, narrating the facts in para 3, the Court has stated as under:-
"3. The suit is based on an oral lease of the cinema hall given by Maoji in favour of the appellant which was terminated by notice with effect from first February 1975. The cinema hall was first leased out in 1958 to the appellant. Thereafter it was again leased out in 1968. The monthly rent agreed was Rs. 900/-, As there is no writing evidencing the lease the tenancy has been treated to be from month to month, and there is no dispute between the parties on that point. The trial court held that the lease was really a lease of cinema business and was not covered by the Madhya Pradesh Accommodation Control Act, 1961.
In paragraph-4 the Court has observed as under:-
"The test to be applied is of dominant intention and the question to be decided by us is whether the dominant intention was to let out the cinema business or whether it was a lease of the cinema building with furniture and fittings. The facts relevant on this point are that the plaintiff Maoji never carried on the business of exhibition of films of the cinema hall. The cinema hall is equipped with fans, furniture and some fittings. It however contains no machinery installed by the plaintiff for exhibition of films. The projector was installed by the appellant and it was thereafter that the exhibition of films started in the cinema had. In deciding the question of dominant intention one has to see whether the cinema hall is so equipped that the business of exhibition of films would be started by the lessee without incurring any substantial expenditure in making it reasonably fit, for carrying on the business. Now when the projector or the machinery itself was not installed in the cinema hall, it cannot be said that it was equipped upto that standard. In such a situation, in our opinion, it cannot be held that the dominant intention was to let out the cinema business. The dominant intention here was to lease out the building with furniture and fittings."
The facts referred to above disclose that first the building with furniture and fittings was leased out and thereafter the lessee purchased the projector and other equipments necessary for running a cinema business and installed the same in the building so taken on lease and started the cinema business and having regard to these facts, the Court held that the dominant intention of the lease was not to run a cinema business but to lease out the building with fittings and furniture. In this Decision there is no discussion of interpretation of clause similar to Section 3 (a) (iii) of the Karnataka Rent Control Act which deals with the lease of the building with fittings fixed to such building for the more beneficial enjoyment thereof. The Karnataka Rent Control Act does not refer to lease of business but only to lease of a building.
In Anant Gadre's case, the Court proceeded to apply the test of dominant intention by finding out whether it was to let out the cinema business or whether it was a lease of the cinema building with furniture and fittings, On the facts of that case as the lessee had after taking on lease the building purchased the necessary cinema equipments of projectors etc., and started cinema business, it was found that the dominant intention of the lease was only to lease out the building with fittings. On the other hand, in the case out of which the present Appeal arises, it is seen that the lease was for running an "English Talkie" and the terms of the lease deed showing that it was practically for running a cinema theatre and that the fittings, furnitures, machineries and equipments therein were only for running a cinema business and therefore by no stretch of logic it can be said that the lease of the building under Ex.P.62 dated 29.9.1944/or the subsequent leases were not for running cinema theatre but only a lease of a building with some fittings. The furniture, fittings, machinery and equipment under the lease deed Ex.P.62 can never be said to be for the more beneficial enjoyment of the building. Therefore with great respect to the learned Judges who decided Anant Gadre's case , we prefer to hold on the facts in the case on hand that the lease in question was a composite lease of building with furniture, fittings, machinery and equipment for running a cinema theatre and it was outside the purview of the Karnataka Rent Control Act, 1961. In this behalf we refer to the Decision of this Court in SRI KRISHNA KANT C. DESAI v. THE ADDITIONAL COMMISSIONER OF WEALTH TAX 22. 1980(2) KLJ Sh.N. Item No 81. The certified copy of the full Judgment of that case in Writ Petition Nos. 1467 of 1973 clubbed with Writ Petitions 1468, 1469, 1470 and 1471 of 1973 decided on 11.4.1980 is produced in the case and in paragraph-2 of the Judgment we find the facts stated as under:-
the brief facts of the case are: petitioner is a partner in a partnership firm, M/s. Alankar, Bangalore. The firm took on lease a theatre called Alankar Theatre consisting of building, plant and furniture from one Jayantilal Thakor for a period of 30 years from 1.6.1957 to 31.5.1987 under an agreement dated 20.3.1958. Jayantilal Thakor, the lessor of the petitioner himself is a lessee of the land on which he constructed the building to suit a cinema theatre and thereafter invested money for installing projector and other allied equipments to make it a full fledged cinema theatre i.e. Alankar Theatre."
After referring to the Supreme Court Decisions in Dwarka Prasad v. Dwaraka Das Saraf and Uttamchand v. S.M. Lalwani, in para 9 the Division Bench of this Court observed as under: -
"From the above decisions, it is clear, while a factory or a cinema theatre necessarily includes a building, a building as defined in Section 3 (a) of the Rent Control Act does not take in a factory or a theatre. In the present case, as is clear from the contents of the lease, it was not a case of lease of a building simpliciter, together with fixtures meant for the beneficial enjoyment of the building, but it was a case of lease of fully equipped cinema theatre. Therefore we reject the first contention of the petitioner as the provisions of the Rent Control Act are not applicable to the cinema theatre of which the petitioner is a lessee."
In the instant case though there is no projector as part of the lease under Ex.P.62 or under subsequent tease deeds Exs.P.1 to P.7 it is clear that the building with furniture, fittings and equipment was leased for the dominant purpose of running a cinema business and there was definitely no lease of the building with the details of the furniture, machinery and equipments for the more beneficial enjoyment of that building simpliciter. Therefore we have no hesitation in rejecting the submissions of the appellants in this behalf and in further holding that the lease is a composite lease of the building with furnitures, fittings, machinery and equipment for running a cinema theatre and thus the lease is outside the purview of the Karnataka Rent Control Act.
Points 2 and 3:-
41. In the paper-book at page No. 329 in Ex.D.4 a letter written to the appellants' father is on record and it shows that the appellants' father was required to make an additional deposit of Rs. 26,201/- as against the deposit of Rs. 1,133/- as already made. It is submitted that the figure 26,201/- is a typographical error and the correct figure is Rs. 2628/- only. This document is referred to identify the deposit for the R.R.Number of the electric installation in question. It is stated to be RR No. BP 29 in Ex.D.4. It is with reference to this R.R.No. the respondent No. 1 wrote two letters to the Karnataka Electricity Board to furnish the details as to whom the electric installation in R.R.No. BP 29 was sanctioned initially and other details and the reply sent in that behalf and the copies of the letters addressed by the respondent No. 1 to the K.E.B. are produced as additional documents along with I.A.10, which is filed for permission to adduce additional evidence. Since the documents sought to be produced are the copies of letters by the plaintiff No. 1 and the reply from the K.E.B. and since they are necessary to clarify the controversy with regard to the ownership of R.R.No. BP 29, the same require to be allowed on record by way of additional evidence as prayed for by the respondent No. 1. His prayer is accordingly allowed and I.A.10 is also allowed and the copies of two letters written by the plaintiff No. 1 and the reply sent by the K.E.B. to him are admitted in evidence and marked as Exs.P.112, 113 and 114. These documents go to show that the original agreement was between the first lessee T.C.W. Skipp and the Chief Electrical Engineer, K.E.B. under an agreement dated 18.5.1921 and the consumer T.C.W. Skipp was entitled to 40 HP. and the date of sanction was 18.5.1921 and that no records were available to show if additional power had been sanctioned and that power utilisation for the years 1944 to the date of reply letter under question was only 10.7 HP as per the report dated 22.11.1944 and 8.04 HP as per the report dated 22.9.1981. In view of the Power Utilisation Report, there is no need of additional power as the sanctioned power was to the limit of 40 HP. The finding that the additional power was availed by the appellants' father is unsustainable and the learned trial Judge came to that conclusion because the material available before this Court was not available before him. To that extent, the finding of the learned trial Judge with regard to the additional power installation in the name of the appellants' father is reversed.
42. With regard to the lease of projector, amplifier, screen and speakers, it is to be noted that these items are rot at all referred to in any of the lease-deeds that have come into existence between the parties. In Ex.P.61 the lease-deed between Mrs. Evelyn Elizebeth Holland Smith and the first lessee Mr. R. Phulchand there is reference to 'C' schedule property which was given as security for the due performance of the terms of the lease and the necessary recital in the lease deed state that the lessee created a charge against the Talkie Machine R.C.A. P.G. 91 Double equipment with all appurtenances thereto as described in Schedule 'C'. In Schedule 'C' we find details of this Talkie Machine and it contains reference to Rotary Stabilizer, Soundhead Attachments bracketed, amplifier equipment, power supply unit, stage loud speakers, two projector mechanisms, Projector lenses, 2 sets magazines, 2 60 cycle motors etc. Under Ex.P.62 the lease deed dated 29.9.1944 between Rao Sahib S.V. Govindarajan and the plaintiff's father-in-law and his wife there is a recital to the effect that the lessee had deposited with the lessors the Century 'C' Machine in the Opera House and had given the receipt to the lessors as security. There is no knowing that this Century 'C' Machine is the same as Talkie Machine referred to under Ex.P.61. The details of this Century 'C' Machine are not available in the Schedule to the lease-deed. Therefore it is not at all possible to agree with the contention of the plaintiffs-respondents 1 and 2 that there was a lease in respect of the projectors, amplifiers, screens and speakers. As already stated though the Century 'C' Machine was deposited by way of security amounting to pledge, there is no material to show that there was lease back of the same in favour of the appellants by the plaintiffs 1 and 2 or their predecessors in title. Therefore merely because there was pledge of Century 'C' Machine for due performance of the terms of the lease in respect of the plaint schedule premises, we are not prepared to accede to the contention that the pledged amplifiers, projectors etc. had been taken back on lease by the lessees. Though in law it may be permissible to hire out or lease out the pledged articles, in the case on hand, we find no such terms permitting the pledgee to lease out these articles and as a fact also we do not find that the lessees had taken back these articles on further lease, It may be that the terms of the lease on expiration of the lease period require the lessees to hand over all the articles in sound condition to the lessors, such terms are valid in law and when the parties agree to such terms they are binding and enforceable between the parties. To support this proposition reliance may be placed on the Decision in COOK AND CO. v. C.L. PHILLIPS AND ORS 23. AIR 1931 Calcutta 133.
43. For the reasons stated above, we reject the cross-objections to the extent indicated above, and confirm the finding of the learned trial Judge that projectors, amplifiers, screens and speakers do not belong to the plaintiffs.
44. With regard to the gift of the furniture in favour of plaintiffs 3 to 5 by plaintiffs 1 and 2 it is to be seen that there is no gift-deed as such, But the affidavits sworn to by the plaintiffs 1 and 2 are placed on record. The contents of the affidavits at Exs.P.87 to P.89 show that Smt. Yashodamma gave her share of furniture in 'Opera House' by way of gift to her son Ramakrishnan; Ramakrishnan accepted that gift. Likewise there is affidavit of plaintiff No. 1 Kanakarathnam Chetty giving his share of furnitures in 'Opera House' to plaintiffs 4 and 5 in equal shares. These affidavits do not per se in the absence of the gift deed suffice to hold that there is gift of movables. There is no document making a gift of these furnitures in favour of the plaintiffs 3 to 5 by plaintiffs 1 and 2. But evidence has been placed by the plaintiffs on record to show that in terms of exchange of letters based on gifts of furniture by plaintiffs 1 and 2 in favour of the plaintiffs 3 to 5, the appellants have sent hire charges in respect of furnitures of the plaintiffs 3 to 5 and this is obvious from Ex.P.36 the letter under the subject "furniture rent" signed by the first appellant for New Opera enclosing three bank drafts being the furniture rent for the month of August 1978 in favour of plaintiffs 3 to 5. The details of the bank draft, the amounts and the persons in whose favour they are drawn are all found in this letter and this material shows that the gift of the furniture was acted upon and the rents were paid by the appellants to respondents 1 and 2. Even if the affidavits are not accepted as proving the gift of furniture, then the furniture in the theatre continues to be in the ownership of the plaintiffs 1 and 2 and therefore lease of the theatre with furniture remains intact and the contentions of the appellants in that behalf lose force and crumble down.
45. The lease in respect of the suit building under the Lease Deeds Exs.P.6 and P.7 expired by the end of August, 1973. Under Ex.P. 16, the lease period was by consent extended by three months arid thereafter there is no further extension of lease and no rents are paid and there is no question of tenancy by holding over. Therefore by efflux of time the lease came to an end by the expiry of the period covered by the Ex.P. 16 the lease agreement dated 9.9.1979. Therefore the suit filed for possession without termination of tenancy is maintainable as the lease period had come to an end by efflux of time. Even otherwise also the plaintiffs have issued notices determining the tenancy as per Exs.P.22 and P.23 served under the postal acknowledgments at Exs.P.24 to P.27. Therefore plaintiffs are entitled to the relief of possession.
46. There is a weak attempt made by the appellants to contend that there is mis-joinder of causes of action and mis-joinder of parties to the suit. Order 1 Rule 1 of the Code of Civil Procedure states that all persons may be joined in one suit as plaintiffs where any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative; and if such persons brought separate suits, any common question of law or fact would arise. The Opera House originally belonged to Mr. T.C.W. Skipp and it was purchased by Sri Krishna Chetty and his wife Smt. Rangamma subject to lease in favour of Sri R. Phulchand and subsequently the premises are leased in favour of the appellant's father Sri Rao Sahib Govindarajan and after his death by inheritance, the appellants are in possession as lessees. Plaintiffs purchased the property from Sri Krishna Chetty in respect of his own share as also his wife's share after her death as her sole executor. In view of these facts, the plaintiffs joining in the same suit does not involve similar questions but common question and such joinder is therefore permissible and the suit suffers from no infirmity, Therefore, we find no merit in the Appeal or in the cross-objections except to the extent of additional electric installation stated above.
In the result, the Appeal fails and is dismissed and the cross-objections also stand rejected except to the extent indicated above in the body of the Judgment.