- (1.) THIS is a defendants application under S.25 of the Provincial Small Cause Courts Act, 1887, against the order of the Additional District Judge, Muzaffarnagar, exercising powers of the Judge, Small Causes Court, rejecting the defendants objection challenging its jurisdiction.
(2.) THE plaintiff-opposite party filed a suit in the court of the Judge, Small Causes, Muzaffarnagar, for recovery of arrears of rent and ejectment from the cinema building known as "Taj Talkies", Muzaffarnagar, along with the electrical installations, refrigeration equipment, furniture, cooler engine and various other fittings and fixtures mentioned in the schedule to the plaint. The plaint allegations were that the plaintiff was owner of the cinema building which was constructed in the year 1971-72, and the same was let out to the defendant on rent at the rate of Rs. 4500/- per month, but subsequently the rent was reduced to Rs. 4000/- per mensem. The plaintiff pleaded that the defendant has been in possession of the cinema since 7th July, 1972, but he failed to pay rent for a period of more than three months, thereby he committed breach of terms agreed between the parties. The plaintiff claimed decree for ejectment and also for recovery of a sum of Rs. 29000/- as rent and damages and future damages at the rate of Rs. 4000/- with interest at the rate of 12 per cent per month with effect from 7-8-1974 till the date of delivery of possession. In addition to possession of the cinema building the plaintiff claimed possession of goods including furniture, electrical goods, coolers, fixture, equipment, machinery and screen as mentioned in the schedule to the plaint. The defendant contested the suit on a number of grounds. In his written statement, the defendant asserted that he was a licensee, therefore the suit was not maintainable in the court of the Judge, Small Causes. In the alternative, the defendant further pleaded that even if he was a tenant of the building, the suit in respect of the cinema business which was let out to him was not maintainable in the Court of the Judge, Small Causes, and lastly, the defendant challenged the jurisdiction of the Judge, Small Causes Court to try the suit on the ground that the valuation of the suit was Rs. 81,000/-. The Court below framed two issues (1) whether the defendant was lessee in the premises in suit and (2) whether the court had jurisdiction to try the suit. The Additional District Judge who was exercising the powers of the Judge, Small Causes Court, answered both the issues against the defendant. He held that relationship of landlord and tenant existed between the parties as the defendant has been paying rent to the plaintiff at the rate of Rs. 4000/- per month treating him as landlord. He rejected defendants contention that he was a licensee. The trial court further held that in view of S.25 of the Bengal, Assam and Agra Civil Courts Act, as amended by U.P. Civil Laws Amendment Act, 1972, an Additional District Judge, while exercising powers of the Judge, Small Causes Court, had unlimited jurisdiction to try suits for ejectment and arrears of rent. The trial court rejected defendants objection that it had no jurisdiction to try the suit as the plaintiff had not let out building as defined under the said Explanation to Art.4 of the Second Sch. to the Provincial Small Cause Courts Act as along with the building, furniture, fixture and electrical installations and machinery was also let out to the defendant. Thereupon the defendant preferred this revision challenging the order of the Additional District Judge.
(3.) LEARNED counsel for the defendant has urged that the Additional District Judges finding that the plaintiff had let out only building and not the running cinema business are not in accordance to law. He urged that along with the building the plaintiff had let out machineries and other fittings necessary for running cinema business. The defendants tenancy was not in respect of a building as defined under the Explanation to Article 4 of the Second Sch. to the Small Cause Courts Act, therefore the Judge, Small Causes Court had no jurisdiction to entertain the plaintiffs suit. In order to appreciate the contention, it is necessary to refer to the provisions of the Small Cause Courts Act, 1887, (hereinafter referred to as the Act). S.15 of the Act provides for the cognizance of the suits. Court of Small Causes had no jurisdiction to take cognizance of suits specified in the second schedule as those are excepted from the cognizance of the Court of Small Causes. Sch.II to the Act specified suits which are excepted from the cognizance of a Court of Small Causes. Art.4 of the Schedule as amended by the U.P. Civil Laws Amendment Act 1972, (U.P. Act XXXVII of 1972) is in the following manner : "4. A suit for possession of immovable property or for recovery of interest on such property, but not including a suit by a lessor for the eviction of a lessee from a building after the determination of his lease and for the recovery from him of compensation for use and occupation of that building after such determination of the case. Explanation :- For the purpose of this article the expression building means a residential or non-residential roofed structure and includes any land (including any garden) garages, and out-houses appurtenant to such building and also includes any fittings and fixtures fixed to the building for the more beneficial enjoyment thereof." Under the aforesaid provision, a suit for possession of immovable property or for recovery of interest on such property is not cognizable by a Small Cause Court, but a suit by a lessor for the eviction of a lessee from a building and for recovery of arrears of rent and compensation for use and occupation of that building on determination of lease is cognizable by the Court of Small Causes. The expression building as defined by the Explanation, means residential or non-residential roofed structure including any land, garden, garage, outhouses appurtenant to such building. Any fitting and fixtures affixed to the building for the more beneficial enjoyment is also included within the expression building. If the suit in question was for eviction of the defendant from the cinema building and for recovery of arrears of rent, the Judge, Small Causes Court had jurisdiction to try the same, but if the lease was in respect of cinema business the plaintiffs suit would not be a suit for eviction from a building as defined under the Explanation and the Judge Small Causes Court has no jurisdiction to proceed with the suit. The question that arises for determination is whether the plaintiff had let out the cinema building to the defendant with fittings and fixtures in the building for the more beneficial enjoyment thereof. In determining this question the terms of the lease, the dominant intention of the parties entering into the agreement is necessary to be ascertained. Before I proceed to consider this question I would refer to the principles laid down by the Supreme Court which have direct bearing on the question. ;