PURSHOTTAM RAMBHAO KHANDWEKAR Vs. GANGADHAR ALIAS DADASAHIB

JUDGEMENT

(1.) This appeal by the original defendant Nos. 1 and 5 is directed against a decree for possession and mesne profits passed against them and the respondent Nos. 2 to 4 who were defendant Nos. 2 to 4 before the trial Court.

(2.) The property known as Kailash Talkies was owned by the plaintiff-Gangadhar and he entered into an agreement on 3rd October, 1946 to lease it out to the first-defendant Proshottam and one Dattatrya Jalgaonkar, since deceased. Dattatraya Jalgaonkar dies leaving surviving him his widow Manormabai and two sons-Sudhir and Sharad, who were defendant Nos. 3 and 4. Manormabai dies in July, 1972 leaving behind her the two sons and one daughter Asha alias Madhuri, the defendant No. 2. The site under the Kailash Talkies was open at the time of the agreement. The material terms of the agreement were that the lessees should construct a cinema theatre on the open site at the cost of Rs. 50,000/-, the rent should be Rs. 6,000/- per annum, out of which Rs. 1,200/- should be paid to the plaintiff and the balance should go towards the payment of the cost of the construction of the theatre. The period of lease was 25 years and at the termination of the lease the lessee would remove the machinery, setting, equipments and other furnitures from the theatre within six months of the termination of the lease and hand over vacant possession of the building to the lessor. If for any reason beyond the control of the lessees the building could not be used for the purposes of the cinema talkies, the lessees would use the premises for such period over and above the period of lease; and the lessees would not remove the wiring of the cinema-hall at the termination of the lease but would remove the cabin wiring with other specified fittings. Accordingly, a cinema theatre was constructed on this site and in respect of the amount of Rs. 50,000/- spent, Rs. 4,800/- per annum were adjusted in the rent. After the expiry of the lease on 3rd October, 1971, the plaintiff sent a notice on 26th November, 1971 of the first defendant. In reply to that notice the latter contended that the theatre could not be used due to fire for 144 days between 9-11-1950 and 11-4-1961. On this basis, according to the plaintiff, the premises were to be vacated by 23rd May, 1972, but the possession was not handed over to the plaintiff. The plaintiff, therefore, sought possession and claimed damages for use and occupation at the rate of Rs. 3,000/- per month from 26-2-1972 to 30-11-1972 amounting to Rs. 27,000/- in addition to Rs. 200/- as notice charges.

(3.) The only contesting defendants were the defendant Nos. 1 and 5, the presents appellants, as the defendant Nos. 2 to 4 remained absent. According to defendant Nos. 1 and 5, though it was agreed that the first defendant would construct cinema-theatre at the cost of Rs. 50,000/- on the open site, as the plaintiff had no immediate funds for the construction, the first defendant advanced Rs. 50,000/- with interest at 8% per annum. In order to protect the interest of the plaintiff, it was agreed that any additional expenses on the construction should be made by the first defendant at his own risk and the actual cost of construction was little over Rs. 70,000/-. Kailash Talkies started working from 17th November, 1947, but the lease stood extended by 157 days, because the business had to be suspended on account of a fire from 9th November, 1950 to 14th April, 1951. It was urged that the first defendant became a tenant of the building after its completion and as Dattatraya Jalgaonkar died on 1st October, 1947, defendant Nos. 2 to 4 had no interest in the business. It was also urged that the management of the business was entrusted by the first defendant to the 5th defendant. It was also urged that by virtue of the provisions of the C.P. & Berar Letting of Houses and Rent Control Order, 1949 (for short The Rent Control Order"), the first defendant had acquired the status of a statutory tenant and his tenancy could not be determined, except in pursuance of its provisions. In support, it was urged that in Civil Suit No. 131 of 1971, which was filed by the plaintiff against the defendants in the Court of the 2nd Extra Joint Civil Judge (Junior Division), Nagpur, upon a construction of the lease-deed, that Court held that the first defendant had advanced a loan of Rs. 50,000/- at 8% per annum payable in 25 annual instalments and this finding operates as res judicata in the present unit.