BHARAT BHUSHAN Vs. P C SAXENA

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution. The petitioner is one out of the four proprietors of a building known as Minarwa Cinema situate near Motor Stand in the Town of jhansi. This house appears to have been constructed in the year 1942 and a lease was executed in favour of one Sri R. M. Modi of Bombay in the same year for a period of five years at a monthly rental of Rs. 450/- with an option that the lessee could renew the lease for another period of three years, but he would have to pay rent for the subsequent period at the rate of Rs. 550/- a month. Sri R. M. Modi died in the year 1946 and the four proprietors of the cinema building executed another lease in favour of Sri K. M. Modi, the brother of the deceased, and in this lease it was made clear that the lease would continue for eight years. The period of eight years expired on 31-5-1950. But it appears that Sri K. M. Modi continued to exhibit the cinema shows in this building till 30-4-1952. It has been stated in the counter affidavit that the rent for the period after 31-5-1s50 was paid at the rate of Rs. 1000/-per month till 30-4-1952, and this assertion has not been controverted in the re-joinder affidavit filed by the petitioner. There is considerable dispute between the parties as to what happened after 30-4-1950 and the attempt of the petitioner is to show that the respondent No. 2 (Sri K. M. Modi) had no right to continue in possession of the cinema building whereas in the counter affidavit facts have been asserted to make out the right of the said respondent to continue in its possession. I shall not enter into the controversy with respect to these facts, as I do not propose to decide in these proceedings whether the respondent No. 2 is entitled to continue in possession of the building or not. The question is the subject matter of a civil suit pending in the court of the district Judge at Jhansi, and any observation that I may make in this respect may prejudice one or the other of the parties in the proceedings before that court. If the position were clear that the respondent No. 2 had no right to remain in possession that i'act would have been taken into consideration in deciding this petition; but that is, on the facts disclosed, not the position. It appears that there was a compromise between the parties in proceedings under Section 145, criminal P. C. The proceedings under Section 145, Criminal P. C. , were started on the application made by one Sri B. M. Shah on behalf of the respondent No. 2 on 13-5-1952. The building was ordered to be attached on the 23rd of May. On 26-5-1952 an application was made on behalf of the four proprietors of the cinema building for dropping the proceedings under section 145, Criminal P. C. , in view of the pendency of the civil suit, and also for making all the proprietors of the cinema building parties to the proceedings under Section 145, Criminal P. C. This application was rejected by the learned Magistrate. On 4-7-1952 a compromise was filed in these proceedings which was signed by Sri B. M. Shah on behalf of the respondent No. 2 and two out of the four proprietors of the cinema building, namely Sri Mannu Lal and Sri Dip Chand; and, according to the terms of the compromise, possession of the cinema building was to be delivered to Sri B. M. Shah as the representative of the respondent No. 2. On the strength of the said compromise, possession of the cinema building was delivered to Sri B. M. Shall on 9-7-1952. Coming to the civil suit, what appears to have happened was that an application was made there for dismissing the suit on the ground of the compromise dated 4-7-1952, but Sri Bharat Bhushan and Smt. Monga Devi, the two proprietors who had not signed the compromise opposed this application. Sri Mannu Lal and Sri Dip Chand also subsequently wanted to back out of it. The district Judge then seized of the case passed an order on 22-8-1953 holding that Mannu Lal and dip Chand must be held to have compromised the matter but Bharat Bhushan, (the petitioner)and Smt. Monga Devi could continue the suit. Bharat Bhushan, the petitioner and Dip Chand are the sons of Mannu Lal and Monga Devi is their mother. The position, therefore, is that the father and one son have been held to have compromised the matter but the other son and the mother are proceeding with the civil suit.

(2.) IT appears that there were no cinema shows exhibited in this building between the period 1st of may and 21-11-1953. The licence to the respondent No. 2 to run the cinema was granted by an order dated 23-10-1953 but the cinema shows could not be exhibited till 21-11-1953 because of the continuance of the injunction order issued by the learned District Judge of Jhansi restraining the said respondent from doing so. This injunction was discharged on 21-11-1953.

(3.) THE proceedings for the grant of a licence started on an application made on behalf of the respondent No. 2 for granting to him a licence to run the cinema house, and it appears that Dip chand also filed an application for a licence for the same. The learned District Magistrate issued notice to the opposite parties to appear before the Cinema Magistrate on 11-12-1952 who heard the parties and submitted his report to the District Magistrate. On 25-2-1953 the District magistrate passed an order saying that the dispute concerning the alleged lease was 'sub judice' in a civil court, and, under the circumstances, he could not make any order allowing or disallowing either of the applications made by the parties. The applications were ordered to be filed without any orders with a direction that it would be open to the applicants to revive them after the civil suit was over. It appears from the facts stated in the counter affidavit that a representation was made to the government on behalf of respondent No. 2 praying that a licence to exhibit the cinema shows be granted to the said respondent. The Government issued instructions to the District Magistrate directing him to grant the licence to the respondent No. 2 because the said respondent had been restored to the possession of the cinema house. In obedience to the instructions received from the government a licence was ordered to be issued in favour of respondent No. 2. This order was passed on 31-10-1953, but there is a considerable dispute as to whether it was signed at that time by the District Magistrate or he appended his signatures to it on some subsequent date. I do not propose to enter into this controversy either, because of the view that I have taken on another point in this case which I shall presently state. To continue the story a licence was subsequently issued in favour of the respondent No. 2 and it is signed by the Cinema Magistrate for the district Magistrate.