MADAN THEATRES LTD. Vs. CHARUSHILLA DASSI AND ORS.

JUDGEMENT

(1.) The principal defendant in an ejectment suit, Madan Theatres Ltd., has preferred this appeal against a decision of P.B. Mukharji, J., by which the learned Judge held that the appellant had forfeited a lease of two contiguous premises held by it under the first respondent, Sm. Charushila Dassi, by reason of breaches of a condition which entitled the lessor to re-enter. The appellant contends that no condition of the lease was broken and, alternatively, that assuming a breach had occurred, it was only a breach of an implied condition which could not entail a forfeiture of the lease. Before the learned trial Judge, it was contended further that even if a forfeiture had been incurred, the court could relieve the Appellant against it and ought to do so in the circumstances of the case, but before us that contention was expressly abandoned by the learned Advocate-General. The premises concerned are Nos. 138-1 and 138-2, Cornwallis Street, Calcutta, the former of which appears also to be numbered as 3, Gurucharan Lane, on one side. Their owner is admittedly the Respondent Sm. Charushila Dassi. Originally, on the 29th Oct., 1919, she granted a lease of No. 138-2, Cornwallis Street, to one J.F. Madan for a period of 20 years with liberty to use the premises "for Bioscope and Cinema shows, variety entertainments, theatrical and all other purposes of a like nature." The term of the lease was to be taken as having commenced on the 8th July, 1915. It was stipulated by the lease that the lessee would be entitled to build on the premises, but he would be bound to dismantle any structures that he might erect and restore the land to its original condition at the determination of the lease.

(2.) One of the conditions of the lease was that "the lessee shall, during the term of the demise, allow to the Lessor a free complimentary pass for four seats in the first class stalls or a private box for the performances at the Theatre or cinema on the demised premises". As there was no entertainments tax at the time, the lessee had only to forego the price of the seats in order to observe the condition and accordingly had no difficulty in observing it.

(3.) The lease of 1919 was assigned by the lessee to a company promoted by him, called Madan Theatres Ltd., which is the appellant before us. It appears that in 1922, the company applied to the lessor for a lease of an adjoining plot of land, known as 138-1, Cornwallis Street, for a period of 20 years and for an extension of the term of the lease of No. 138-2, Cornwallis Street, so that the two leases might terminate at the same time. The request was granted and two leases were executed on the 14th Nov., 1924, one demising premises No. 138-1, Cornwallis Street, for a period of 20 years with effect from the 18th July, 1922, and the other demising premises No. 138-2, Cornwallis Street, for a period of 7 years and ten days with effect from the 8th July, 1935, both leases to terminate on the 17th July, 1942. In the case of the second lease, the purposes for which the premises were to be used were the same as in the lease of 1919, while in the case of the first, they were "theatrical and operatic shows, variety entertainments and other purposes of a like nature." These leases also contained a provision that the lessee would be bound to remove all structures and restore the lands to their original condition at the expiry or sooner determination of the leases. Like the lease of 1919, they provided further that the lessee would have to allow to the lessor a free complimentary pass for four seats in the first class stalls or a private box for theatrical or cinematographic performances on the demised premises.