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IN THE HIGH COURT OF ALLAHABAD
K. C. Agrawal and O. P. Saxena, JJ.
J.J.PANCHOLI - Appellant
Versus
SRIDHARJEE - Respondents
Civil Revn. 129 Of 1981
Decided On : 01/17/1984
IMPLIED SURRENDER OF LEASE - SMALL CAUSE COURT JURISDICTION - TRESPASSER - DAMAGES FOR USE AND OCCUPATION - LEASE OF CINEMA BUILDING - DISTINGUISHED FROM LEASE OF RUNNING CINEMA BUSINESS.
Fact of the Case:
Plaintiff, the landlord, filed a suit against defendant No. 1, the lessee, for recovery of arrears of rent, ejectment, and damages for use and occupation. Defendants Nos. 2 to 4, the heirs of the deceased lessee, were impleaded later. The trial court decreed the suit against defendant No. 1 and defendant No. 2, who was in possession of the residential portion of the premises as the manager of the cinema.
Finding of the Court:
The court held that there was an implied surrender of the lease by the defendants prior to the lease in favor of the company. The court also held that the suit was maintainable on the small cause side as the lease was not of a running cinema business and the costly cinema equipment was not the subject matter of the lease.
Issues: 1. Whether there was an implied surrender of the lease by the defendants? 2. Whether the suit was maintainable on the small cause side? 3. Whether defendant No. 2 was liable to pay damages for use and occupation at the enhanced rate of Rs. 4375/- per month?
Ratio Decidendi: 1. The court held that the conduct of the defendants, including the promotion of a new company for running the cinema business, the taking of new leases by defendant No. 1, and the acquiescence in the surrender of the lease in favor of the company, showed that the old lease had been surrendered. 2. The court held that the suit was maintainable on the small cause side as the lease was not of a running cinema business and the costly cinema equipment was not the subject matter of the lease. 3. The court held that defendant No. 2 was not liable to pay damages for use and occupation at the enhanced rate of Rs. 4375/- per month, but only at the rate of Rs. 1260/- per month.
Final Decision: The revision was partly allowed. The judgment and decree passed by the trial court were modified to the extent that defendant No. 2 would be liable for damages for use and occupation at the rate of Rs. 1260 per mensem for the period following the period up to which the deposit had been made. Defendants Nos. 1 and 2 were given two months time to vacate the premises. The rest of the judgment and decree were confirmed. The stay order was vacated.
( 1 ) THIS is a revision under Section 25 of the provincial Small Cause Courts Act against the judgment and decree dated 28-2-81 passed by the Learned II Additional District Judge. Allahabad decreeing the suit for recovery of arrears of rent, ejectment and damages for use and occupation along with interest at the rate of 12% per annum on the amount of pendente lite and future damages.
( 2 ) THE dispute relates to premises No. 24/35 Mahatma Gandhi Marg. Allahabad, more commonly known as Plaza Theatres. Apart from the accommodation in use for the cinema on the ground floor, first floor and second floor, there is a residential por tion in the second floor.
( 3 ) THE plaintiff is the landlord of the premises in suit, Sri J. P. Pancholi was the lessee of the premises. On 29th March, 1965 a lease deed was executed whereby the premises in suit were let out to Sri J. P. Pancholi on a rental of Rupees 1100/- for a period of 10 years. The lease was to continue up to 28th March, 1975.
( 4 ) ON 18-9-1974 Sri J. P. Pancholi died. He left behind three sons, Sri V. K. Pancholi, Sri J. J. Pancholi and Sri L. K. Pancholi. defendants Nos. 1, 2 and 3 respectively and two daughters. Km. Pushpa Pancholi. defendant No. 4 and Smt. Hira Tewari. After his death, the cinema business was carried on by defendants Nos. 1, 2 and 4.
( 5 ) ON 23-4-1975 Sri P. K. Ghosh, the Secretary of the Chintamani Ghosh Trust which is managing the plaintiff deity Sri Kalyan Kumar Ghosh, defendant No. 1, Sri V. K. Pancholi, defendant No. 2 Sri J. L. Pancholi and defendant No. 4 Km. Pushpa Pancholi floated a Private limited Company in the name of Plaza Theatres (P.) Ltd. For the purpose of carrying on the cinema business. Ex. 5 is the Memorandum and Articles of Association of Plaza Theatres (P.)Ltd. This Company was duly incorporated on 14th May, 1975. Ex. 4 is the Certificate of incorporation.
( 6 ) ON 18-7-1975 the premises in suit were leased to the Company. Ex. 6 is the lease deed duly executed on behalf of the lessor by Sri P. K. Ghosh and Sri V. K. Pancholi, the Managing Director of the Company on behalf of the lessee. The premises in suit were let out for a period of one year on a rental of Rs. 1250/- per mensem.
( 7 ) THERE was loss in the running of the business of the Private Limited Com-panv and it could not continue.
( 8 ) ON 14-10-76 defendant No. 1 Sri V. K. Pancholi took the lease of the premises in suit. Ex. 7 is the lease deed dated 14-10-76 executed by Sri P. K. Ghosh on behalf of the lessor and Sri V. K. Pancholi, the lessee. The premises in suit were taken for the period from 1-8-1976 to 31-8-1977 on a rental of Rs. 4,375/- per mensem. On the same date the same parties executed another agreement where by Sri V. K. Pancholi agreed to pay the rent for the period from 1-4-1975 to 31-3-1970 at the rate of Rs. 3,000/- per mensem and for the period from 1-4-1976 to 31-7-1970 at the rate of Rs. 4375/- per mensem. He was allowed the benefit of paying the arrears in instalment of Rs. 1500/- per mensem.
( 9 ) ON 23-9-1977 plaintiff filed the suit for recovery of Rs. 97,790/- as arrears of rent and damages for use and occupation for a period from 1-4-1975 to 31-7-1977 and interest at 12% per annum on the amount due up to 30-6-1977 eviction of the defendant and pendente lite and future damages for use and occupation at the rate of Rs. 4375/- per mensem for the period from 1-3-1977 to the date of possession. The suit was filed only against defendant No. 1, Sri V. K, pancholi. It was said that the defendants was in arrears of vent since 1-4-1975, that a notice to quit was duly given on 20-7-1977 and that the defendant neither paid the rent nor vacated the premises in suit.
( 10 ) ON 9-1-1979 defendants Nos. 2 to 4 gave application paper No. 51-Ga for being impleaded. The application was allowed on 7-7-1979. On 15-11-1979 the plaintiff gave application paper no. 41-Ga for amendment of the plaint impleading defendants Nos. 2 to 4 and making some further
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