ALLAHABAD THEATRES PVT LTD Vs. KUSUM KUMARI

JUDGEMENT

(1.) SUIT No. 38 of 1966, giving rise to the above appeal, was filed by the appellant M/s. Allahabad Thea tres Private Ltd., against the respondent Smt. Kusum Kumari for eviction from the pro perty known as Jawahar Palace, No. 29(Old)/98 (new) Jawahar Square Allahabad, now run under the name of Naaz Cinema, along with all its fittings, electric and otherwise, furniture, operating instruments, fixtures and other appurtenant articles and accessories, including the building, seats, machinery and fans etc. A decree for arrears of rent, damages insurance money and Bhumi Bhavan Kar, amounting to Rs. 13, 496.91 was also claimed.

(2.) THE said suit was filed on the allegations that the appellant was a private limited company and had been floated with the object of carrying on the cinema busi ness by acquiring lands and buildings for that purpose. The said Company construct ed the premises No. 29(old)/98 (new) in Jawahar Square, Allahabad. The entire building was fitted with projectors, screen, electric fittings, balcony, furniture, etc. The said accommodation was constructed for the purpose of cinema business and no other. The entire premises became ready in 1934 and the said company carried on the busi ness of exhibiting films for some time and thereafter they had been running the same business through others. It was further al leged in this connection that the entire cinema business, along with the building, cinema accessories and articles appertaining thereto, including fittings, electric and other wise, seats, machinery, furniture, etc., was leased out for two years by the appellant to the respondent on a fixed and unalterable rent of Rs. l.000.00 p.m. The period of two years was to expire on 30th November, 1962. The respondent had been carrying on the business under the name and style of Naaz Cinema and paying rent at the rate of Rs. 1, 000.00 p. m. on the basis of the afore said lease deed. The respondent did not vacate the premises on the expiry of the said period of two years and continued to run the business. The appellant subsequent ly by a notice dated 4th September, ' 1964 called upon the respondent to pay the arrears due from 1st January 1963 to 31st August, 1964. The said notice had also purported to terminate the tenancy of the respondent. The appellant, thereafter, sent another notice, which was served on the respondent on 22nd September 1965, but the respondent neither remitted the entire rent which was due to the appellant nor did she vacate the premises and hand over the same to the appellant. Accordingly the appellant filed the aforesaid suit for the reliefs mentioned above. It may be mentioned here that the ap pellant in the aforesaid suit also set up a plea, that since the cinema house along with the running business had been let out to the respondent, therefore the provisions of the U. P. (Temporary) Control of Rent and Evi ction Act did not apply to the premises in question, hence, the appellant was entitled to the decree for eviction without proving com pliance with the provisions of the aforesaid Act. In the alternative it was, however, also pleaded by the appellant that even if it was found that the aforesaid Act applied to the premises in question, the respondent had committed default in making payment of rent in spite of the service of notice of demand under section 3 (1) (a) of the said Act and therefore she was liable to be evi cted on that ground.

(3.) ON the aforesaid pleadings of the parties a number of, issues arose for decision in the Court below. One of the main issues was relating to the applicability of the pro visions of the U. P. (Temporary) Control of Rent and Eviction Act to the premises or property from which eviction was being sought by the respondent. The Court below took the view that what was let out to the respondent by the appellant was not the run ning cinema business but the cinema build ing, which was accommodation within the meaning of the aforesaid Act, hence the pro visions of the same applied. The Court be low, further found that as the respondent had not committed any default in making payment of rent as required by Section 3 of the Act she was not liable to eviction on that basis. The allotment order set up by the respondent was found to be valid. On these findings the Court below dismissed the suit of the appellant for eviction and arrears of rent. A decree for the amount of Rs. 400.75 as insurance charges and Rs. 900.60 as Bhumi Bhavan Kar was, however, granted in its favour against the respondent. Aggrieved against the decision of the Court below the present appeal has been filed.