MADHYA PRADESH HIGH COURT

                   Anant Gadre

                   Vs.

                   Gomtibai (M.P)

                       First Appeal No.190 of 1980
                   (G.P. Singh, C.J. and K.K. Dube, J.)

                   03.11.1981

                   JUDGMENT

G.P. Singh, C. J.

1. This is an appeal by the defendant against the judgment dated 31st October 1980
passed by the Additional District Judge, Hoshangabad, decreeing the suit for
ejectment and mesne profits in respect of a cinema hall situated at Itarsi and
dismissing the appellant's counter-claim.

2. The suit was instituted by the original plaintiff Maoji on 27th January 1975. Maoji
died during the pendency of the suit on 16th January 1978 and his legal
representatives who are respondents in this appeal were substituted in his place.
3. The suit is based on an oral lease of the cinema hall given by Maoji in favor of the
appellant which was terminated by notice with effect from 1st 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, and, therefore, it was not necessary to plead and
prove any of the grounds mentioned in Section 12 of the Act. Even so, the trial Court
held the need of the plaintiff under Section 12 (1) (f) to be established. The trial Court
also decided an issue having reference to Section 12 (1) (m) in favor of the plaintiff.
The trial Court allowed the manse profits at the rate of Rs. 900/- per month from the
date of termination of tenancy. It further directed that in case the appellant did not
vacate within two months from the date of the decree, the plaintiff would be entitled to
get manse profits at the rate of Rs. 1500/- per month from the date of the suit. There
was a counter-claim by the appellant. The appellant's case was that he made certain
constructions with the consent of the plaintiff in which he spent Rs. 31,954.18 and that
he was entitled to get this amount from the plaintiff. The counterclaim was dismissed
on the finding that the constructions were not made with the consent of the plaintiff.

4. The first question that arises in this appeal is whether the trial Court was right in
holding that the lease was really a lease of cinema business and that it was not
governed by the provisions of the Accommodation Control Act. It is only a lease of an
accommodation as defined in Section 2 (a) of the Act which is governed by the
provisions of the Act. Therefore, if in a given case what is leased out is a business
carried on in a building, the lease will be outside the provisions of the Act. The
principles bearing upon this question have been decided by the Supreme Court in
Uttamchand v. S.M. Lalwani, 1 and Dwarka Pd. v. Dwarka Das. 2 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 in 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 hall. 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 could
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 up to
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. We may also refer to Ex. P-9 which is a
certificate for purposes of assessment of property tax given by the appellant to the
plaintiff stating that he paid Rs. 800/- for cinema premises and Rs. 100/- towards the
rent of furniture in the cinema house. This certificate also shows that the rent was paid
for the building and furniture and not for any business.

5. Learned counsel for the respondents referred to us a passage from the case of
Uttamchand v. S.M. Lalwani (supra) in which it is stated that the fact that the
machinery of a Dal Mill which was transferred to lessee under the lease was found to
be not very serviceable and the lessee had to bring in his own machinery, would not
alter the character of the transaction. These observations have to be appreciated in the
light of the facts of that case. In that case, Dal Mill building with fixed machinery in
working order and accessories was leased out on an annual rent. The machinery
installed was serviceable, although it may not have been very serviceable in the sense
that the lessee had to bring in new machinery also. It was held that the lease was a
lease of the Dal Mill located in the building and not a lease of a building where the
fixture of the machinery incidentally passes with the lease and in this context it was
said that the fact that the lessee had to bring in his own machinery also did not alter
the character of the lease. In the instant case, the machinery for exhibition of films
was not at all fitted in the cinema hall when it was leased out to the appellant and,
therefore, the inference that arises is that it was not a lease of cinema business
although the lessee took the lease of the cinema hall for carrying on that business by
installing his own machinery. In the case of Dwarka Pd. v. Dwarka Das (supra), also
what was leased out was a running cinema business i.e. a cinema hall fitted with a
projector and other accessories for running cinema business. Similar were the facts in
Harisingh v. Ratanlal, 3 and S.G. Film Exchange v. H.H. Tej Kunwar,4 . No case has
been pointed out to us where a lease of a cinema hall without machinery for exhibition
of films may have been held to be lease of cinema business. For these reasons, we
hold that the lease in the instant case was a lease of the cinema building with furniture
and other fixtures, governed by the Madhya Pradesh Accommodation Control Act.

6. On the finding reached by us, it was necessary for the plaintiff to prove one or more
of the grounds mentioned in Section 12 of the Act for obtaining a decree for
ejectment. We have earlier stated that the Court below has found in favor of the
plaintiff existence of grounds under clauses (f) and (m) of Section 12 (1). As regards
the ground under Section 12 (1) (f), we notice that initially what was pleaded was the
need of the original plaintiff Maoji. The need of Maoji came to an end on his death
and, therefore, the suit could not be decreed on the basis of that need. It is now well
settled that the need on the basis of which ejectment is sought, must exist till the end;
(see Hasmat Rai v. Raghunath Prasad,).6 The finding on the question of need,
therefore, cannot be supported. Learned counsel for the respondents, however, pointed
out that an application was made on 11th December 1976 in the trial Court to plead
that the cinema hall was needed by the plaintiff and his major sons Visram Bhai and
Purushottam Bhai for carrying on cinema business. Vishram Bhai and Purushottam
Bhai are amongst the legal representatives who were joined after the death of Maoji.
Vishram Bhai also died during the pendency of the suit. This application, filed by the
plaintiff, was rejected by an order passed on 11th December 1976 itself on the plea
trial according to the plaintiff the cinema building was not covered by the
Accommodation Control Act. The rejection of this application was clearly wrong. It is
true that the plaintiff's case was that the cinema building was not covered by the
Accommodation Control Act, but he could plead in the alternative requirements of
Section 12 for claiming ejectment. In our opinion, the amendment application made on
11th December 1976 ought to have been allowed by the trial Court. Had that
application been allowed, the issue whether Vishram Bhai and Purushottam Bhai who
were later on joined as legal representatives, needed the cinema hall for running
cinema business could have been tried. Now that Vishram Bhai also died during the
pendency of the suit, the only amendment that can be permitted is about the need of
Purushottam Bhai for carrying on cinema business in the cinema hall.

7. As regards the question as to the existence of the ground under Section 12 (1) (m),
we find that there is an issue (Issue No. 4) framed by the trial Court which
substantially cover the ground under that section, but there is no clear pleading to that
effect. Although that issue has been decided in favour of the plaintiff by the trial
Court, the finding is not very happy. The trial Court came to the conclusion that the
constructions made by the appellant were not made with the consent of the plaintiff.
The trial Court did not give any specific finding that these constructions materially
altered the accommodation to the detriment of the landlord's interest or that they were
likely to diminish its value substantially. In the absence of any such finding, it could
not be said that the ground under Section 12 (1) (m) was made out. The trial Court's
decree, therefore, cannot be supported even on this ground. However, as the issue was
there and there is also some pleading that the constructions were made without the
consent of the plaintiff and they damaged the building, we permit the respondents to
apply for amending the plaint for pleading clearly the ground mentioned in Section 12
(1) (m).

8. Learned counsel for the respondents also submitted that the cinema hall has been let
out by the appellant during the pendency of the suit. If that be so, a ground of
subletting can also be added by amending the plaint.

9. Coming to the counter-claim, learned counsel for the appellant has failed to show
any substantive law under which he could be entitled to the value of the constructions
made by him, in case they were not made with the consent of the plaintiff, Except for
the word of the appellant, there is no evidence whatsoever that the constructions were
made with the consent of the plaintiff or at his request. In these circumstances, the
appellant was not entitled to counter-claim for the value of the constructions. The
question whether these constructions enhanced the value of the cinema hall or whether
they were detrimental to it or whether they materially altered the building, is left open
to be decided by the trial Court, it the plaint is amended to bring in the ground under
Section 12 (1) (m).

10. The appeal is allowed. The judgment and decree of the trial Court pertaining to
ejectment and manse profits are set aside and the suit is remanded to it for trial in
accordance with law. The respondents will file an application for amendment of the
plaint on the date of appearance fixed by us which will be decided by the trial Court in
the light of the observations made above. The appellant will have a right to amend the
written statement in answer to the amendment of the plaint. Both parties will be
allowed to lead evidence on the new points arising out of the amendment. The decree
dismissing the counter-claim is upheld. There will be no order as to cash of this
appeal. Parties will appear before the trial Court on 2nd December 1981.

Appeal allowed.

Cases Referred.

1. AIR 1965 SC 716
2. AIR 1975 SC 1758
3. 1969,MPLJ 622
4. 1978 MPLJ 302
5. AIR 1981 SC 1711