DW ARKA PRASAD v. DWARKA DAS SARAF

Allahabad High Court in First Appeal No. 448 of 1968. R. K. Garg, S. C. Agarwa,'a, V. J. Francis and Madho Prasad, for D I ·~ the appellant. V. M. Tarkunde, Hardayal Hardy and P. P. Juneja, for res pondent No. 1. The Judgment of the Court was delivered by KRISHNA IYER, J.-The rent control law has been a rich source of lengthy litigation in ·the country and the present appeal, by certificate under Art. 133(l)(a) of the Constitution, at the instance of appellant-landlord, is ilJustrative of one reason for such proliferation of cases, namely, the lack of clarity in legislative drafting and dovetail ing of amendments which have the potential for creating interpretative , ; confusion. The facts are few and may be stated briefly, although, at a later stage, further details may have to be mentioned at relevant places to illumine the argwnents advanced on both sides by counsel, Shri R. K. Garg (for the appellant) and Shri V. M. Tarkunde (for the respon dent). Shortly put, the legal issues are only three: (A) Is a cinema theatre, equipped with projectors and other fittings and ready to be 1aunched as an entertainment hous-e, an 'accommodation' as de.fined in s. 2(1) (d) of the U.P. (Temporary) Control of Rent and Eviction (B) If it is Act, 1947 (U.P. Act.III of 1947) (for short, the Act)? an 'accommodation' as so defined, what is the impact of the proviso brought in by amendment in 1954 (Act XVII of 1954) (for short, the Amending Act)? (C) If the Act barricades eviction by the landlord because the premises let constitutes an 'accommodation', does the repeal of the Act and exclusion of cinema houses operation of the 1972 Act (U.P. Act 13 of 1972) (for short, the later Act) rescue the right of the appellant-landlord to eject the tenant respondent? altogether the R E F G ':" ' ,,4 "' • ;:· A B c D E F G H - DWARKA v. D. D. SARAF (Krishna Iyer, J.) 279 structural The building covered by the suit is admittedly one built adapted for screening films. The plaintiff had been carrying on a cinema business in this theatre for a long number ()f years but, when he discontinued, the defendant approached him in Jarruary 1952. for the grant of a lease of the building with all the equipment and fittmgs and furniture necessary for his operating the cinema.· The necessary certificates, sanctions. and permissions, preliminary to the conduct of cinema shows, stood iii the name of the plaintiff, including water-pipe fitness. Before com-· connection, electricity supply and mencement. of cinema shows, a licence is necessary under the U .P. Cinemas (Regulation) Act and this licence has to be taken out. by the actual operator of the cini; ma and not by the landlord of the theatre and equipments. Therefore, oncce the lease for the entire building and cinema projector, accessories and the like was finalised, the deed of demise was actually executed, it being provided that the commencement of the lease would synchronize with the inaugural cinema show on March 25, 1953. It was provided in the lease deeds that the rent for the building, simpliciter, may be shown separately from that attributable to the costly equipments, for the purposes of property tax and other taxes. By this apportionment, the building, as such, was to bear a burden of Rs. 400/- per mensem by way of rent and a monthly sum of Rs: 1,000/- was fixed fop the projector and all other items fixed in the building. The leases were renewed from time to time till 1959. The suit for eviction was based on these leases which formed the foundation of the action. At this stage it may be noticed that the learned counsel for the defendant-tenant 'did not dispute that running a cinema business did constitute an industrial pur, pose so that the accommodation was used for an industrial purpose'. Another significant fact admitted by the defendant's counsel before the High Court was 'that for the purpose· of this case, in spite of there being separate documents of lease in respect of the demised properties as referred to above, these sets of contracts may be treated as a single transaction each time:. On these facts and circumstances, we have to decide whether the subject matter of the demise is an 'accommodation' within the meaning of the Act. After settling this issue, the other two points adverted to above may have to be considered. While the trial Judge held that the property was not 'an accommodation' within the sweep of the Act, the High Court, on appeal before a Division Bench, could not agree and, on account of the difference of opinion between the two Judges who heard. the appeal, the. case was posted before a thi~d Judge who took the new that the sub1cct matter of the lease in question was an 'accommodation' within the meaning of the Act. The suit on· this view, had to be dismissed. The aggrieved landlord has ~ome up to challenge this judgment. Let us now take a Close-up of the definition of 'accommodation' in die Act and apply it to the admitted facts here. Section 2 (a), as 1t stood at the tim-" of the first lease, ran thus : "Accommodation" means residential and non-residential accommodation in any building or part of a building and includes, ' ,· :zso SUPREME COURT REPORTS [197611 s.c.R. (i) gardens, grounds and out houses, if any appurtenant to such building or part of a building; (ii) any furniture supplied by the landlord for use i11 such building or-part of a building; · (iii) any fitting affixed to such building or part of a building for the more beneficial enjoyment thereof." The Amending Act added a clause reading thus : "but does not include any accommodatiorl. used as a factory or for an industrial purpose where the business oarried 0n in or upon the building is also leased out to the lessee by the same transaction " at the end of clause (a). We have to go by the amended dcfinifon in the present case. Since the basic fabrjc of the demise remained the same notwithstanding several renewals its terms have a bearing. on the decision of the case. So we may reproduce it (relevant part I at this stage : · "We have taken a Cinema hall known as Dwarka . . . for· running a cinema. . . on '' Prasad Theatre Hall monthly rent of Rs. 200/- commencing from March 25, 1953." To complete the picture, we quote from the factual summinQ-uU JJy Salish Chandra J., since it is convenient and uncontested : "The same day the defendants executed another lease deed stating; that they had taken th<: Dwarka Theatre Hall on a rent of Rs. 200/- per month and that in this building there is- new furniture fitted for about 500 seats with ceiling and fittings of ele'Clric light and fans, complete machinery~ ceiling fans and operating machine together with all articles present in the hall of the theatre a list whereof has been duly signed by the executant and that they had taken also on a monthly rent of Rs. 1,100/- besides rent of the building. The lease deed dated 1-4-1954 executed by the defendants stated that whereas besides the cinema hous~ popularly known as Dwarka Theatre Hall which has been taken on hire of Rs. 200/- per month, the defendants had also taken on rent of Rs. 800"/- per month the new furniture with tapestry about 500 seats. and ceiling and complete ekctric fittings including fans and machine and ceiling fans and operating machine together with the entire parapher nalia present in the theatre hall. The defendants in this lease deed stated that they had taken the building on rent to continue running a cinema. The lease deed of 10th January 1956 was a confirmation of the same subject matter of It appears that by now the landlord was fitting .the lease. A B c D E F G lI \.,.. - ' ... • DWARKA v. D. D. SARAF (Krishna Iyer, J.) 28 l: \ • A B c D E F G H new furniture in the hall and for that reason the rent w;1s increased to Rs. 1200;'.- per month. Similarly, in the lease • deed dated 26th May, 1959 the defendants stated that they have taken a cinema hall known as Dwarka Theatre Hall on a monthly rent of Rs. 40()/- and the furniture of about 500· seats, ceiling, electric fittings, with fans, com.plete mach1n~, ceiling fans, operating machine and other articles present m the theatre hall, a list whereof was attached, on a monthly rent of Rs. 1000/-." Let us revert to the law. 'Accommodation', in plain English, may cover cinema houses with or without fittings. But legislaitve· drafting does not always leave things that easy. Had there been a. accommodation', he who runs and reads definition of 'controlled is a would have gathered the intendment of further complication introduced by the addition of a proviso of sorts by the amending Act and a whole host of authorities on the canons of construction and functional role of a proviso and its indirect impact on the main provision has been brought to our notice. Does a proviso carve out ·something from the whole? Does it serve an independent enacting purpose? We do not think that legislative simplicity is an abstruse art, provided we reform our drafting methodology. The Renton. Committee in England high-lighted the importance of easy· comprehensibility .of law and wrote : statute. Here · 'There is hardly any part of our national life or of our personal lives that is not affected by one statute or another. The affairs of authorities, nationalised: industries, public corporations, and private commerce are regulated by legislation. The life of the ordinary citizen is affected by various provisions of the statute book. from Cradle to grave." The instant case which deals with a legislation affecting the shel!er of common people brings up the same problem. The main definition of 'accommodation' in the Act brings within· its sweep not all kinds of buildings nor all types of realty leases. The protected category is confined to those species of leases whose· purp.o~e and subj.eel matter answer the statutory prescriptions. More explicitly. the wider connotation or dictionary meaning of 'accom modation' must yield to the definitional delimitation. The core of· th~ controversy here is (a) whether the lease is of the building, the fittmgs and other fixtures merely making for the beneficial enjoyment of and ancillary to the building, as urged by the tenant or whether the building provides a_ bare, though appropriately deslgned, enclosure to hous~ an ente1:1)f[se, the dominant purpose or real subject of the lease. b~mg the cmema, appara~us and fittings, including subsidiarilv and mc1dentally, though necessanly, the structure of brick and mortar: ~nd (b) whether the. cinema, to fall within the exclusionary clause · <ldd,d bv the Amendtn~ Act must he actually a going concern "·ith all the licenses for showmg films and running the theatre beinl! in the name of .the less~r: Lastely, the ffect of the repeal of the Act and· the ope.rung prov1s10n of the later Act putting cinemas out of · apphcat10n, has lJ.~en debated at the bar. 0 282 SUPREME COURT REPORTS [1976) 1 S.C.R. The Ceutral Act (The Cinematograph Act) ano the State Act c(The U.P. Cinema Regulation Act) govern the exhibition of films aml it is not in dispute that the theatre had. been built for and used "'s -a cinema house even before the first lease to the respondent in l 953. The further agreed facts are that when the last renewed lease of 1959 with which we are directly concerned was executed, there was a running cinema business and further that the rent apportioned for the building qua building was only a fraction of the rent 'for the coc; tly fixtures intended for the cinema bnsiness'. Looking at the three problems posed, unaided by the many , decisions cited by counsel, we are inclined to the view that a lease of an 'accommodation' must essentially be of a building-not a business ·or industry together with the building in which it fa situated. Of course, a building which is ordinarily let, be it for residential or non residential purposes, will not be the bare walls, floor and roof, but will have necessary amenities. to make habitation happy. That why the legislature has fairly included gradens, grounds and houses, if any, appurtenant to such building. Likewise, leases some times are of furnished buildings and_ that is why 'any furniture supplied by the landlord for use in such building' is . building. In the same strain, we may notice, as a matter of common -occurrence, many fittings 'such as electrical fittings, sanitary fittings, curtains and venetian blinds and air-conditioning equipment being 'fixed to the building: by the landlord so that the tenant's enjoyment of the tenement may be more attractive. The crucial point is that :these additions are appurtenant, building itself. They make occupation of the building more con venient and pleasant but the principal thing demised is the building and the additives are auxiliary. Where the lease is composite and 'has a plurality of purposes, the decisive test is the dominant purpose ·of the demise. _ subservient and beneficial to treated as part of Forgetting for a moment the clause introduced by the amending Act, it is plain that the furniture and fittings visualized in the concept of 'accommodation' are calculated to improve the beneficial enjoy ment of the premises leased. Counsel for the tenant has countered this interpretation by an ingenious and plausible submission. He emphasizes that the present building was conceivea, designed structured expressly as a cinema house conforming to the regulations in this behalf and the purpose of the owner was to use the auditorium ·and annexes purely as a cinema house. According to him, when a cinema theatre is erected, it becomes useless unless the necessary In this view, the equipment for exhibiting films are also fitted up. relative cost of the fixtures is immaterial and all these items, however costly, are calculated to fulfil the very object of the construction of the cinema theatre. In short, the fittings and furniture and like items are beneficial tO and enhance the worth of the building and cannot 'be divorced or dissec.fed from the whole object which animated the project of the building construction qua a cinema house. So presented, there is a certain attractiveness in the argnment. although this fact of 'interpretation does no~ find a place in the submission on behalf of the ·respondent in the High ·court. A B c D E F G H ) ' A II c D E F G II DWARKA v. D. D. SARAF (Krishna Iyer, !.) 283 What then is the flaw in this submission, or merit in the earlier one? The legislative policy, so far as we can glean from the scheme of the Act, is to control rents and evictions of buildings, rack-renting and profiteering by indiscriminate eviction from buildings, residential and non-residenti_al, being the evil -sought to be suppressed. The law If this be a sound sought to rescue exploited tenants of buildings. reading of the mind of the legislature it is fair to hold that the pro tected category of accommodation was residential and non-residential buildings and not business houses. We have _been at pains to explain that the subject matter of the leases covered by the definition of 'accommodation' is 'any building or part of a building'. We have carefully analysed the inclusive ex pressions in the original definition such as appurtenant gardens, grounds and out-houses, furniture for use in the building and fittings In this statutory context, gardens, out-houses, affixed to the building. furniture and fittings mean annexures for the better enjoyment of the In this sense, the dominant intention must be to lease the building. If that be the intention, the rent control law building qua building. protects. On the other hand, if a going undertaking such as a running or ready-to-launch and fully equipped cinema house is covered by the provision, the emphasis is not so much on the building but on the the present business, actual or imminent. There definition which helps this shift in accent. is nothing We may reinforce our view from the expressions used, be<:ause all the three categories included as additions play a subservent ro)e, while if a business were the subject matter of the lease, the prominent thing will be not what houses the business but the business itself. The building becomes secondary since eve>y business or industry has to In all such cases, be accommodated in some enclosure or building. the lessor makes over possession of the building as part and parcel of the transfer of possession of the business. It would be a travesty of language to speak of a lease of a building when what is sl!hstantially made over is a business or industrial plant. How then do we distinguish between a )ease of a business or industry housed in a building from a building which has fixtures for more beneficial enjoyment? The former is a protected 'accommo dation' while the latter is left for free market operation. In the persent case we have to visualize what was the dominant or decisive component of the transaction between the parties, the tenancy of the building qua building or the taking over of a cinema house as a business, the projectors, furniture, fittings and annexes being thd moving factor, the building itself playing a secondary, though necessary, role in calculations of the parties. Going by the rental apportioned, it is obvious that the parties stressed the cinema equipment as by far the Judging by the fact that there had already been a more important. cinema in this house for several years, with the necessary certificates under the various statutes for running a cinema theatre obtained by the landlord and that the lease itself was to commence only from the esse'ntial date of the first show of the films, doubts regarding 284 SUPREME COURT REPORT [1976] 1 s.c.R. object and subject of the bargain stand dispelled. The mere circum stance that the licence for showing films was taken by the tenant of little consequence as the law itself requires it to be in his name. · The further circumstance that the term of the lease in one case mav vary from the other . also where, as here, two deeds are executed, not a tellmg factor, m view of the clear admission by counsel for the respondent that the two leas<> deeds together constituted a single transaction ~nd that the·lease was for an industrial purpose, to wit. runnll1Jg a cmema busmess. The conspectus of factors no one cir cumstance taken by itself-thus settles the issue in favour of the land lord who contends that what has been granled is a lease of a cinema busmess and, at any rate, the real intent of the parties to the lease was to den11se pnmanly the cinema equipment and secondarily the building, the lease itself being a composite one. Social justice, legislative policy, legal phraseology and precedential. wisdom converge to the same point that the scheme of control includes, as its beneficiary, premises simpliciter and excludes from its ambit businesses accommodated in buildings. To hold otherwise is to pervert the purpose and distort the language of s.2(a). The amending clause, argues Shri Tarkunde" strikes a contrary note. For, if the main definition in itself fences off leases of business and industry, why this superfluous proviso expressly excluding accommo dation 'used as a factory or for an industrial purpose where business is carried on in or upon the building is also leased out to a lessee by the same transaction'? The whole section must be read harmoniously, each. part throwing light on the other and redundancy helng frow'ned upon. A proviso carves out of a larger concept and the mgumcnt is that the need for the exclusionary clause itsel! shows tha' otherwise factories and businesses are within the operational area of the main definition. c D E In a country where factories There is some validity in this submission hut if, on a fair construc tion, the principal provision is ckar, a proviso cannot expand or limit it. Sometimes a proviso is engrafted by an apprehensive draftsman to F remove possible <.loubts, to make matters plain, to light up ambiguous edges. Here. such is the case. industries may still be in the developmental stage, it is not unusual to come across several such umts which may not have costly machinery or plant or fittings and superficially consist of bare buildings plus minor fixtures. For example, a beedi factory or handicraft or carpentry unit-a few tools, some small contrivances or collection of materials G housed in {\ building, will superficially look like a mere 'accommodation' but actually be a humming factory or business with a goodwill as business, with a prosperous reputation and a name among the business Its value is qua business, although ii: has community and customers. a habitation or building to accommodate it. The personality of the thing let out is a going concern or enterprise, not a lifeless edifice. · The legislature, quite conceivably, thought that a marginal. yet sub- H stantiaL class of buildings, with minimal equipments may still be good businesses and did not require protection as in the case of orditwry building tenancies. So, to dispel confusion from this region and to f , • • A B c D E F G I H DWARKA v. D. s. SARAF (Krishna Iyer, J.) 2°85 exclude wlhat seemingly might be leases only of buildings but ii'. truth might be leases of business, the legislature introduced the exclusionary proviso. While rulings and text books bearing on statutory construction have assigned many functions for provisos, we have to be se.lectiv~, having regard to the text llllld context: of a s~atute. Nothing . IS gained by extensive references to lununous classics or suppo~ve case law. Haviag explained the approach we make to the specdic 'proviso' situation in s. 2(a) of the Act, what strikes us as meaningful here is that the legislature by the amending Act clarified what was implicit earlier and expressly carved out what otherwise might be mistakenly covered by the main definition. The proviso does not, in this case, expand, by implication, the protected area of building tenancies to embrace 'business' leases. · We may mention in fairness to counsel that the following, among other decisions, were cited at the bar bearing on the uses of provisos in statutes : Commissioner of Income-tax v. Inda-Mercantile Bank Ltd.(i); M/s. Ram Narain Sons Ltd. v. Asst. Commissioner of Sales Tax(2); Thompson v. Dibdin ( 3); Rex V. Dibdin (4 ) and Tahsildar Singh v. State of U.P.(5 ). The law is trite. A proviso must be limited to the subject matter of tho enacting clause. It is a settled rule of construction that a proviso must prima facie be read and con sidered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment. 'Words are depend ent on the principal enacting words, to which they are tacked as a proviso. They cannot be read as divorced from their context' (1912 A.C. 544). If the rule of construction is that prima facie a pro viso should be limited in its operation to the subject matter of enacting clause, the stand we have taken is sound. To expand the enacting clause, inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a provisC\. A provisci ordi narily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious <;onstruction. "The proper course is to apply the broad general rule of construction which is that a section or enactment must be construed as a whole each portion throwing light if need be on the rest. . The true principle undoubtedly is, that the sound inter pretation and meaning of the statute, on a view of the enacting clause, saving clause, and proviso, taken and construed together is to prevail." (Maxwell on Interpretation of Statutes, 10th Edn. P. 162) (I) (1959] Supp, 2 S. C. R. 256, 266. (3) [1912] A. C. 533, 541. (2) [19551 2 S. C. R. 483, 493. (4) [19101 Pro. Div. 57, 101, 125. (5) [19691 Supp. 2 S. C. R. 875, 893. 5- L839Sup.CI/75 286 . SUPREME COURT REPORTS [1976] 1 S.C.R • In ·\vc· no\v move on to 'dominant intrnt" a" f1:" governing rule. our vie\V, the dominant intent is fou~d ~:! :r.~rr: ~ ,· · ision of this Court. Intlecd, some State Legislatures, accept; ng, th., f.C ;ition that where the uominant intention of the lease is the enjoyment cf a cinema, as dis tinguished from the building, have <lelibera·,eiy onomded the definition by suitable changes (e.g. Kerala and Andhra Pradesh) while other Legislatures, on the opposite policy decision, have expressly excluded 1he rent control enactment (e.g., the latter Act). In Uttam Chand v. S. M. La/wani(') this Court had to consider an anafogous position under the Madhya Pradesh Accommodation Control Act where also the term 'accommodation' was defined substantially .in !he same language. The Court was considering the grant of the lea)f of a Dal Mill vis a vis 'accommodation', as defined in that Act. Gajcn dragadkar, CJ., elucidated the legal concept which reinforces stand, if we may say so with respect. The learned Chief Justice observed: "What then was the dominant intention of the· parties wllen they entered into the present transaction)? We have already set out the material terms of the lease and it seems 10 us plain that the dominant intenion of he appellant in accepting the lease from the respondent was to use building as a Dal l\:!ill. It is true that the document purports to be a lease in respect of the Dal Mill building, but the said description is not decisive of the matter because even . if the intention of the parties was to let out the Mill to the appellant, the building would still have to be described as the Dal Mill building. It is not a case where the subject ·matter of the lease is the building and along with the leased building incidentaJly passes the fixture of the machin:ry in regard to the Mill, in truth, it is the Mill which is the subject matter of the lease, and it was because the Mill was intended to be let out that the building had inevitably to be let out along with the Mill. The fact that the appellant contends that the machinery which was transferred to him under the lease was found to be not very serviceable and that he had to bring in his own machinery, would not alter the character of the transaction. This is not a lease under· which appellant ent{:red into possession for the purpose of residing in the building ·at ·all; this is a case where the appellant entered into the foasc for the purpose of running the Dal It is obvious that \lill which was located in the building. a Mill of this kind will have to be located in some building or another, and so, the mere fact that the lease purports to be in. respect ot the building will not make it a base in respect 'of an accommodation as defined bys. 3(a) (y) (3). The fixtures described in the schedule to the lease are in no sense intended for the more beneficial enjoyment of the build object which ing. The the lease was intended which the fixtures are located comes in incidentally. That (I) A. I. R. 1965 S.C. 716. to cover and the · building fixtures are primary A B c u F G ' • H DWARKA r. D. s. SARAF (Krishna Iyer, !.) 287 A B ~ . c is why we think the High Court W<is right in: coming to the conclusion that the rent which the appellant had agreed to pay to the respondent under the docullllnt in question cannot be said to be rent pa0·a11le for any accommodation to which the Act applies." The ratio of that case is that the Court must apply the test of dominant intention of the parties' to determine the character of the lease i.e., \vhat was the primary purpose of the parties in executing the ~ocument ? The mere fact that the demise deals with a building does not bring it In the case before us the fix within the ambit of accommodation. t.ures are not for the more beneficial enjoyment of the building. On the contrary, the possession of the building is made over as an integral part of, and incidental to, the making over of the cinema apparatm In the language of the learned Chief Justice in and costly appliances. U tram Chand case (supra), the 'fixtures are the primary object which the lease was intended to cover and the building in which the fixtures are located comes in incident all~'. "-' , D The following decisions were relied on, or referred to, by counsel for the appellant: Raje Chetty v. Jagannathadas('I); Mohd. Jaffer Ali v. S. R. Rao("); Govindan v. K1111hi/eks/11ni Amma('). Rajamannar, C.J., speaking for the Division Bench in Raja Chetty's case (supra) dealt with. the case of a kase of a cinema theatre in Madras in relation to the rent control law :is it obtained in that State then. In that connection, the learned Chief Justice observe'cl : ''We have come to the conclusion that the lessors' appli cation in this case is not maintainable on other grounds as we.JI. In our opinion the lease in ·question is not governed by the provisions of Madras Act, XV of 1946. That Act regulates only the letting o.f ms:dential and non-residential Jn s. 2, building has been defmed as to include buildings. the garden, grounds and out-houses appurtenant to the build ing and furniture supplied by the landlord for use in' such In the case before us, there is no lease of a n1crc huilding. building or a building with compound and furniture of the land an\l sort covered by the definition. The lease is of fittings, cinematographic building together with The talkie equipments, machinery and other articles. lessors, evidently aware of the composite nature of demise, have prayed in their petition for eviction of lessees from the land and buildings only. On behalf of the respondent, Mr. :!;, V. Ramachandra Iyer relied strongly on the provision in the tlced which splits up the monthly rent and hire of Rs. 3,2001- into Rs. 1600 being rent for the ground furniture and and superstructure Rs. 800/- being hire of Rs. 8001-, being hire of talkie equipments and machinery. fittings and lessors' fixtures. We have no hesitation fixtures, rt) A. I. R. 1950 Mad, 284, (2) /I.. I. R.1971 A. P.156(F. R.). -13) A. l. R. 1966 Ker. 244 (F. Il.) F G H 288 SUPREME COURT REPORTS [1976) 1 S.C.R. relatmg holding that this splitting is purely notional and nominal and intended probably for purposes relating the muruc1pal assessment and other extraneous considerations. · When we asked Mr. Ramachandra lyer what wou!Jd happen, in this case when there is an eviction of the lessees from the land the machinery and equipments etc., and building, whether there was any provJSion in the deed them, he confessed there was no specific pro vision in the deed. Obviously they cannot be gowmed by Madras Act XV of 194'6 and so he said they must be go vernetl by the general law of contract. He also conceded that if the lessees paid Rs. 16001 - but defaulted in the payment of the balance which is due as hire, the lessors have no right to ask for eviction under the Rent Control Act. We think that the attempted division of the lease and sepa ration of rights in regard to two classes of property is in the highest degree artificial, never contemplated by the parties. Here is a lease of a talkie house with everything that is necessary to run cinema shows. To split up such a compo site lease as this into separate contracts of lease and hire is to destroy it altogether. Mr. Ramachandra Iyer argued that the furniture which was covered by the lease fell with in the definition of s. 2 of the Act. We do not agree. The observations of the learned Judges in App. No. 590 of 1945 (Patanjali Sastri and Bell JJ.) in dealing with the plant, machinery and other moveables which were demised along with a factory are very apposite in this connection : 'No doubt in one sense the buildings comprised in the lease deed contain articles supplied by the londlord; but we cannot agree that what was so supplied can be considered in any modern sense as being furniture.' Though in that case the learned Judges were dealing with the lease of factory called the West Coast Match Co., which consisted af land and buildings including a bungalow used for residential purposes tog_ether with plant; machinery and moveables contained therein, we think the principle of that decision would apply equally to the case before us in which there is a lease not merely of a building but of a cinema theatre with all necessary equipment far the exhibition of Films.'' It is true that in !offer Ali's Case and in Govindan's case (supra) (the Andhra and Kerala decisions referred to above) cinema theatres ha.e been held to fall within the definition of building, under the· relevant rent control law of those States. A bare reading of the two cases would show that certain amendments had been made to the parent statutes whereby the definition was expanded and its wide range was made to include all tenancies relating to all though accessories, furniture anti fittings for use in the hou~e were structures A B c D E F G H A B c D E ~, \ I G H DWARKA I'. D. s. SARAF (Krishna Iyer, J.) 289 that apparatus fixed in a building and it also made over. There is no doubt that the word 'fittings' may take in a projector or other apparatus used for a cinema but it is one thing is another to say to say that such fixture or apparatus is for the beneficial enjoy ment of the building. Therefore it depends on the words used reflec ting the legislative policy of each State Legislature. Indeed in Venkayya v. Venkata Subba Rao('') a Division Bench of the Andhra Pradesh High Court considered whether the lease of a fixture comprising build ings und machinery came within the sweep of the rent control law. The court held that the lease of a running factory, comprising costly· machinery intended to be used for manufacture, did not fall within the definition. The question, in each case, the learned Judges pointed out, would be what is the dominant. part of the demise and what the main purpose for which the building was let out In Amritlal N. Shah v. Annapurnamma( 2 ) the same court held that the lease of a cinema did not come within the purview of Madras Act 25 of 1949. Definitional ramifications need not detain us nor decisions turning on them. is. the decision Shri Tarkun'dc pressed upon us in Karsandas v. Karanj/( 3 ) and Karnani Properties Ltd. v. Miss Augustine('). One of them did refer to a cinema theatre with fittings and generators. Certain. Calcutta decisions, Kali Prasad v. Jagadish Pada(') and D. S. Jain v. Meghamale Roy( 6 ) were also cited before us. In all these cases, the decision turned on the precise language used. We l:lo not see any need to discuss these and the other decisions cited before us because we have explained why the conclusion we have reached is in consonance with the sense, purpose and language of the Act. For the same reason we content ourselves with merely mentioning that in Harisingh v. Ratanla/( 7 ) a Division Bench of the Madhya Pradesh l.Iigh Court helrl that a fully equipped cinema theatre let out for show ing films on a commercial basis. being of a running cinema theatre, fell out of the scope of accommodation on the score that costly fit tings, fixtures and equipment could, in no sense, be regarded and meant for the beneficial enjoyment of the building in which the cinema theatre was. housed. The primary object and the definitional language used detern1ine the issue. th~ Respondent's counsel did try to approximate the definition in the reference been rendered. Act decisions to which We do not agree. To hair-split an unhappy tat; ve exercise. Here the plain intendment is to encomoass leases of building only (inclusive of what renders them more congenial) but not of businPs<es accommodated in buildings nor of nremises let ont with the predominant purpose of running a business. A lease of a lucrative theatre with expensive cinema equipment, which · · - - · - - - - - enactments with favour latter pressed interpre- . (!)A. I. R. 1957 A. P. 619.. (3) A. I. R. 1953 Sau. 113. (5) A. I. R. 1953 Cat. 149. (2) A. l:R.1959 A. P. 9. (4) A. I. R. 1959 S. C. 309. (6) 68 C. W. N. 1136. (7) [1969] Jab .. L. J. 639, 290 SUPREME COURT REPORTS [1976) [ S.C.R. Jessee to go into the transaction, cannot reasonably be reduced intu a mere tenancy of a building together with fittings which but make the user more comfortabio. A For these reasons we hold that the lease sued on does not fall within the scope of the definition of 'accommodation'. The app@lfant is, therefore, entitled to a decree for eviction, in allowance of his appeal B \ The further question is as to whether the new Act which came into force in July 1972 applies to the present proceedings does not arise, although Shri R. K. Garg, for the appe!lal).t, relied upon express · exclusion of cinemas by the ne\'( enactment. He also relied upon the ruling of this Court in Qudratullah v. Bareilly Mwzicipality( 1). We are not considering this argument or the counter-submissions made by c Shri Tarkunde in this connection because the old Act itself does 1iot cover the suit lease. '-.,_ .. The short surviving point that remains is ab9ut the mesnc profits It is admitted by the respondent that he has been making a net income of Rs. 2,0001-. Adding Rs. 1,400/- which is the net rent under the lease, mesne profits at Rs. 3,400/- have been claimed by the appellant. It may not be quite correct to read into the admission a 'net in~ome', although Shri Garg would have us do so. It may be more appropriate to direct the trial court to fix the mesnc profits to be decree.d from the date of the suit. In the circumstances of the case we direct that on account of the uncertain position of the law and devergent decisions of cou:·ts, the parties do pay and bear their respective costs throughout. A long-standing running cinema with outstanding contracts with film distributors cannot be ·uprooted overnight without considerable It is but financial and business fair that we grant one year's time for the respondent to vacate the premises. trauma to the affected party. E F P.B.R. Appeal allowed. (1) A. I. R. 1974 S.C. 396.