VENKTRAPRAGADA VIRARAGHAVA RAO Vs. RAO BAHADUR MOTHEY NARASIMHARAO ZAMINDAR GARU

JUDGEMENT

(1.) THE plaintiffs, who were the owners or lessees of a picture house, sued to evict from it the defendants, who were partners of defendant 3 in the conducting of the cinema business in the picture house. The defendants resisted the suit mainly on the ground that they were entitled under Act XV [15] of 1946 (The Madras Buildings Lease and Bent Control Act) to remain in possession since they satisfied the definition of 'tenants' found in Section 2 (4) of that Act. They had no lease deed in their favour; but they sought to support their claim by contending that by virtue of the partnership, they had entered into with the lessee (plaintiff 3) with the express consent of plaintiff 1, there was either an equitable assignment of the lease (EX. A -6) by plaintiff 3 in favour of the partnership of themselves and plaintiff 3 or that this lease in favour of plaintiff 3 must be regardedas a lease to the partnership. These and other points were considered by the learned District Judge and decided in favour of the plaintiffs A further important issue in the suit was withregard to the quantum of damages to which the plaintiffs were entitled. The learned Judge passed a decree in favour of the plaintiffs for damages at the rate of Rs. 200 a day from the date when the lease in favour of plaintiff 3 expired to the date when the defendants might hand over possession to the new lessees, plaintiffs 3 to 7. In appeal, we agreed with the lower Court that the defendants obtained no right as lessees and were not tenants within the meaning of Section 2 (4) of Act xv [15] of 1946 and that upon the expiry of the lease in favour of plaintiff 3, the defendants became trespassers and were bound to pay damages to the plaintiffs. With regard to the quantum of damages, we however modified the decree of the lower Court in the defendants' favour in three ways. In the first place, we found that the rate of Rs. 200 a day was excessive and decreased it to Rs. 50 a day. We also held that for two short periods, the non -working of the cinema was due to the acts of the plaintiffs themselves and that for those periods the defendants were not, therefore, liable for any damages at all. The third modification of the lower Court's decree on the question of damages was that we held that while the business was being conducted by defendant 1 alone, or by him in conjunction with plaintiff 4, no damages could be awarded; for defendant 1, as receiver, was bound to account to the Court for the actual profits made and that the amount due to the plaintiffs for the periods in which the receiver was or the receivers were conducting the cinema, the profits would have to be ascertained by the Court in execution. The question is whether the defendants are entitled to leave to appeal to the Federal Court against our decree, since the value of the subject -matter of the suit and appeal exceeds Rs. 10,000, and our decree is not one affirming in its entirety the decree of the lower Court.

(2.) IT is seen that the only modifications made in the decree of the lower Court were in favour of the defendants; and in those respects in which we have modified the decree of the lower Court in the defendants' favour, there is no ground for appeal to the Federal Court.

(3.) THE effect of the above Full Bench decision upon the earlier decisions came up for consideration in Lakshmanan Chettiar v. Thangam, I. L. R. (1947) Mad. 744 : A. I. R. 1947 Mad. 227 where all the authorities bearing on the question were discussed in considerable detail. The cases above discussed may be distinguished from the case here under consideration in that they related to decisions with regard to the rights of various defendants to properties in which they were separately interested; and so it could be argued that those cases were authorities only for the position that where the appellate Court had affirmed the decision of the trial Court with regard to the interest of a particular defendant or a particular item of property, no appeal would lie with regard to that interest or property. In Lakshmanan Chettiar v. Thangam, I. L. R. (1947) Mad. 744 : A. I. R. 1947 Mad. 227, however, the plaintiff filed a suit for partition attacking the genuineness of a partition deed evidencing an earlier partition. The suit was dismissed; and the decision of the trial Court was substantially affirmed in appeal. But there was a variation in two respects ; one with regard to the maintenance of defendant 10 and' the other with regard to the debts of defendant 1, which he alleged were payable by the family. The learned Judges carefully considered not only the previous authorities of the Madras High Court on this subject, with which they expressed their agreement, but also the decisions of other High Courts, agreeing with the views expressed by the High Courts of Calcutta, Bombay and Lahore and preferring them to the views held by the Patna and Allahabad High Courts. They approved of the distinction drawn in Velaya v. H. R. E. Board : AIR1938Mad922 and K. V. Pandian v. Rev. Pignot A. I. R. 1943 Mad. 67 : 208 I. C. 65 with regard to the words 'decision' and 'decree' and again held that where the decision of the Court on any matter was affirmed by the appellate Court no further appeal to the Privy Council would lie unless it raised a substantial question of law.