MAZDA THEATRES LIMITED Vs. GORDHANDAS TRIBHUVANDAS MANGALDAS

JUDGEMENT

(1.) THIS is an appeal against a judgment of Mr. Justice Coyajee by which he held that he had no jurisdiction to maintain an originating summons by reason of the provisions of Rule 241 of the High Court Rules.

(2.) THE plaintiffs, who took out the originating summons, are the lessees and what they wanted was the proper construction of Clause 2(r) of the indenture of lease dated November 21, 1927, and they took out the summons against the lessor, who is the defendant. The parties were agreed on having this clause construed by means of an originating summons and the plaintiffs had agreed to pay the costs of the summons. The question that arose for construction was whether the defendant was entitled to use the complimentary pass issued to him by the lessees free from the liability to pay entertainment duty. Under Clause 2(r) the lessees had undertaken the obligation to give a complimentary pass to the lessor and reserve one box of six seats for the use of the lessor and his family and friends in every show on every day. Now, this obligation was a fairly light obligation till the Government decided to levy entertainment duty even on complimentary tickets. When the Entertainment Tax Act was amended and when the lessees became liable to pay entertainment tax on the complimentary tickets which they had to give to the lessor, the obligation became a very heavy one and therefore the lessees wanted it to be determined by the Court whether the entertainment duty had to be paid by the lessor or by the lessees. This is the question they wanted to be decided by the Court on an originating summons.

(3.) THE result is, the appeal will be allowed and the order of dismissal passed by the learned Judge is set aside. The originating summons is sent back for trial on merits.