Holding

The lease is primarily of a building as defined in Section 3(a) of the Karnataka Rent Control Act, 1961, and therefore falls within the Act’s ambit, granting the tenant protection against eviction.

Summary

The dispute arose over the lease of the Opera House, a cinema building in Bangalore, which included fittings, furniture and some machinery but excluded projectors, amplifiers, screen and speakers. After a series of lease deeds spanning from 1944 to the 1970s, the respondents sought eviction of the appellants, arguing that the lease was for a running cinema business and thus fell outside the Karnataka Rent Control Act, 1961. The trial court and the Karnataka High Court held the lease to be a composite lease for running a cinema and held it outside the Act. On appeal, the Supreme Court applied the dominant‑purpose test, noting that the rent for the building was substantially higher than that for the furniture and equipment and that the major cinema equipment was not part of the demised property. Consequently, the Court held that the lease was primarily of a "building" as defined in Section 3(a) of the Act, bringing it within the definition of "premises" under Section 3(n) and entitling the tenants to protection against eviction. The suit for eviction was therefore dismissed and the appeal allowed.

Issues considered

The lease of a cinema building with fittings and furniture is a lease of a 'building' within the meaning of Section 3(a) of the Karnataka Rent Control Act, 1961.
Whether such a lease falls within the definition of 'premises' under Section 3(n) and is subject to the eviction protection provisions of the Act.
Whether the dominant purpose of the lease is the building itself or the cinema business/equipment.
Whether the eviction suit is maintainable in view of the applicability of the Act after Section 31 was struck down.

Legislation cited

Karnataka Rent Control Act, 1961s. 21, s. 31, s. 3(a), s. 3(n)

Subjects

leaseKarnataka Rent Control Actevictiondominant purpose testcinema theatrepremisesbuildingspecial leavecivil appeal

Judgment

A B.G. KU~1ARVEl,U AND ANR.
'
K.R. KANAKARATHNA~1 CHETTY AND ORS.

JANI :'\RY :1. 1906

11 ·IS C. AGRAWAL ANDS. SAGl-llR Al-IM.\D . .11

;, .. uutaku Ren/ Co111ro! Act.·l 9(12-Sec 3( 11)-· Pre111i..,·l.!s :-Scu11e rd:._.___.
r .L'Use in resflCLI t!f"o 'b11ifdi11g · 1vith.f/'t1;11gs &_fur11i111n:J; ,,. running cl ci11e11u1

1/1ei/i,.c---;:flcld.Jl1lls 1l'ilhi11 the un1bi1 r~(t!te l:XfJressirin-Tes! r!(do111ina11f ;;1-
C f e111iu11 t'.{ the parties-i )~ 1111i11dlll J'll l~1 ·ose r~j"rlu-' de·nise-Hui/,_ling qua bui fd-
illg und 1i1e ;;·rrings 1.111d oilter equ.i1n11e11t 1Jt1ssed ii1cidenild!y 11·11 h rhc b!rilding.

Kar1u11a/.:11 Rent Co11trol A(f, /<.,'61-."le( .2/-I'rotcctioii agoies:
evicfh111--.Je11an15, hell7, e111i1! .. d Jr,.

D The suit property. a.dnmw !hc:i!rc, was leased to aprcllanl's father
vidc lease deed dated September 29,.1944 with fittings, f:in1Hure, machi11·
ery, etc. by the la11dlords, mother and father of respondent N?. 2. Tht•y
had 5/8 a11d 3/8 share in the property respectively. There was a family
partition after the death of the appellant's father and the leasehold inter-
est in the suit prQperty was allotted to appellants and they were treated as
E
tenant holding over by the landlords.

The said property was subsequently sold to respondents Nos. l & 2
and they got S/8 and 3/8 share in the propcrt) respectively. On the "r1n1e
day there "··as al!ornn1rnt of trnancy by the appclla;1ts i 11 fa1·011r of rc-
F spl'ndents Nos. I. & 2. The appellants continued to be the tenants '-ince
1944 hy executing, from time to timr, separnl" :e.•.«' deeds in favour of
Respondents Nos. I. & 2 in respect of their sh.:res in the premises a·nd in
; favour of Respondents Nos. 3 !o 5 for furniture etc. The rent fo.· the build·
ing and fittings and the hire for furniture and machinery etc. has been
G apportioned, the ratio heiug 2 : I, approximately.

On expiry of the lease appellants failed lo hand over the possession
to Respondents. A suit was filed by Respondents in the court of Addi. .City
Civil Judge, which was decreed and appellant.s were directed 19 deliver
vacant possession of the opera House building with furniture, fittings, ma-
H chinery, ~tc.
42
B.G. KUMARVELU v. K.R. CHETTY 43
On appeal, High Court affirmed the judgment of the trial court and A
i
held that dominant purpose of the lease was to run a cinema business in
the building with the furniture, machinery and equipment provided
therein, and that the lease was outside the purview of the Act and the same
does not come under the provisions of the Act.

Against the order of the High Court, appellants preferred an appeal B
by way of special leave contending that the lease was primarily a lease for
the building, and the fittings, furniture etc. which were lease out along
with the building was for the beneficial enjoyment of the building; they
were incidental and not the dominant purpose of the lease; and that pro-
\.

'\
jectors, amplifiers screen and speakers were not part or'the equipment c
that was leased out.

Respondents contended that the dominant P.Urpose of the lease was
for rnnning a cinema theatre and lease for furniture was not an independ-
ent transaction. The mere fact that some equipm<:nts were not leased out
would not alter the nature of lease. D

Allowing the appeal and setting the decree passed by the trial court,
this court

HELD : 1. The lease primarily of a building falling under sec 3(a) of
the Karnataka Rent Control Act and appellants are entitled to the protec- E
tion of the Act in the matter of eviction. The property covered by the lease
is the cinema building, furniture, fittings and some eqnipments. The pro·
jectors, amplifiers, screen and speakers are, however, not included in the
demise. In the lease deeds that were executed since 1944, from time to
'-.
time, the rent for the building and fittings and the hire for furniture, ma· F
chinery etc. have been apportioned and that rent for the building is much
more than the hire of the furniture, machinery etc., the ratio being 2 : 1
approximately. [52-B-C]

2. It cannot, therefore, be said that cinema equipment is more im·
portant part of the demise than the building. Having regard to the appor- G
,., tionment of the rent for the building and the furniture and equipment it
can be said that the dominant purpose of the demise is the building qua
building and the fittings and other equipment only incidentally passed
with the building which has been constructed for being used as a cinema
theatre. The dominant intention of the parties was to let out the building H
I
I

-~

44 SUPREME COURT REPORTS (1996] I S.C.R.
A for being used as a cinema theatre and it cannot be said that the dominant
intention was to let out the fittings, furniture and equipment and the build-
ing playing a subsidiary role only. Moreover, in the absence of projector,
amplifiers screen and speakers which are the major part of the equipment
required for the exhibition of films it cannot be said that the lease was of a
B running cinema theatre. There is no escape from the conclusion that the ..
lease in favour of appellants is of a building as defined i.n sec. 3(a) of the
Act and it falls with the ambit of expression "premises" as defined in sec
3(n) of the Act. [52-D-G]

Uuamchand v. S.M. La/mani, AIR (1965) S.C. 716 and Dwarika Prasad
C v. Dwarika Das Sarraf, [1976] l S.C.R. 277, relied on.

Anand Cadre v. Smt. Gmntibai, AIR (1983) M.P. 72, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 40 of 1996

From the Judgment and Order dated 22.4.94 of the Kamataka High Court
D
in R.F.A. No. 80 of 1989.

P.P. Rao, Naresh Kaushik, Ms. Lalita Kaushik, Shankar Divate, M.T.
Nanaiah and V.J. Francis for the Appellants.

Harish N. Salve, R.S. Hegde, P.P. Singh and B .P. Holla for the Respond-
E
en ts.

The Judgment of the Court was delivered by

S.C. AGRAWAL, J. Special Leave granted.
,_.
F The question that falls for consideration in this appeal arising out of a
suit for eviction of the appellant-tenants is whether a lease of the building with
fittings and furniture for running a cinema theatre falls within the purview of
the Karnataka Rent Control Act, 1961 (hereinafter referred to as 'the Act') and
the tenant is entitled to avail the protection against eviction available under
section 21 of the Act.
G
A Cinema Theatre known as "opera House" bearing No 24 (Old) (New ... ,
No. 57) IOI, Brigade Road, Civil Station, Bangalore belonged to Mr. T.C.W.
Skipp. After the death of Mr. Skipp on November 10, 1934, Mrs. Evelyn
Elizebeth Holland Smith (Nee Skipp), one of his heirs, obtained the \etters of
H administration in respect of the properties of Mr. Skipp, including the 'Opera
,··
B.G. KUMARVELU v. K.R. CHETTY [AGRAWAL. J.] 45
House', and she leased out the said property to one R. Phu! Chand. Mrs. Evelyn A
1, Elizebeth Holland Smith (Nee Skipp) along with other heirs of Mr. Skipp sold
the said property including furnitures, fixtures, fittings and machinery free of
all encumbrances, except the lease hold rights of R. Phu! Chand, to Shri C.S.
Krishnaiah Chetty and his wife, Smt. Rangamma under a sale deed dated July
20, 1939. Shri C.S. K1ishnaiah Chetty had 3/8th share in the property while
B
Smt. Rangamma had 5/8th share in the said prope1ty. By lease deed dated Sep-
tember 29, 1944 C.S. Krishnaiah Chetty and Smt. Rangamma leased out the
premises of the 'Opera House' including fittings, furnitures, machineries etc.
to Sri Rao Sahib S.V. Govindrajan, the father of the appellants herein. Under
the said lease deed the rent was Rs. 800 per month and the hire for furnitures
etc. was Rs. 300. The said lease was for a period of 69 months and it expired on c
June 29, 1950. Thereafter Sri Govindrajan became a tenant holding over and
the landlords were receiving the rents from him. After the death of Sri
Govindrajan in 1955, there was a family partition videdeeddated July 15, 1957
and the leasehold interest in the suit property was allotted to the appellants and
the appellants were treated as tenants holding over by the landlords. Smt. D
Rangamma died on August 17, 1958 and after her death Sri C.S. Krishanaiah
Chetty, as sole executor (as per her last will), sold her 5/8th share in the prop-
erty to his son-in-law Shri K.R. Kankarathnam Chetty, respondent no I herein,
by sale deed dated November 16, 1959. On the same day Shri C.S. Krishnaiah
Chetty sold his own 3/8th share in the said property to his daughter, Smt. K.
Yasodamma, respondent no. 2 herein. On the same day there was attornment of E
tenancy by the appellants in favour of respondents no. I & 2. On November 30,
1959 the appellants executed a lease deed in favour of the respondents no. I &
2 in respect of the building as well as furniture an fittings and all articles in-
cluding machinery etc. The said lease was for a period of two years. The appel-
lants continued to be tenants by executing from time to time lease deeds in fa- F
vour of the respondents nos. 1 & 2. Lease deed dated January 6, 1962 was ex-
ecuted for a period of 55 months from December l, 1961. Under the said lease
the rent was Rs. 950 per month and the hire offurniture and machinery etc. was
Rs. 550 per month. This lease was followed by lease deed dated August II,
1966 fora further period of 55 months from July 1, 1966. Underthis lease deed
the rent was Rs. 1300 per month and hire of furniture and machinery etc. was G
Rs. 700 per month. After the expiry of the said lease, the appellants executed
two separate lease deeds dated January 28, 1971, one in favour of respondent
No. 1 and the other in favourof respondent no. 2. Both the lease deeds were for
a period of 55 months from February l, 1971. Underthe lease deed executed in
favour of respondent no. I the monthly rent was Rs. 937.50 and the hire of fur- H
46 SUPREME COURT REPORTS [1996] l S.C.R.
A niture and machinery etc. was Rs. 468. 75 per month. Under the lease deed ex-
ecuted in favour of respondent no. 2 the said amounts were Rs. 562.50 and Rs.
281.25 respectively. On October 1, 1975 the appellants executed a lease deed
in favour of respondent no. 1 in respect of his 518th share in the suit propctty
whereunder the month:y rent was Rs. 1750 and a lease deed was executed in
favourofrespondcnt no. 2 on September 27, 1975 in respect of his 3/Sth share
B
whereunderthc monthly rent was Rs. 1, 000. Both these leases were in respect
of the theatre with machineries and fixtures. As regards the furniture it appears
that respondent no. 2 had made a gift of her share of the furniture to her son
Ramakrishnan, respondent No. 3 herein, and respondent no. 1 had made a gift
of his share of furniture to his daughters. Smt. Uma Devi, respondent no. 4
c herein, and Smt. Rajeshwari Gupta, respondent no. 5 herein, in equal shares.
On October 10, 1975 three separate lease agreements were executed by the
appellants in favourof respondents nos. 3, 4 and 5, Underthe lease agreements
executed in favour of respondent no.3, the rent was Rs. 200 per month whereas
under the lease agreements executed in favour of respondents nos. 4 & 5 the
monthly rent payable to each of them was Rs. 150. All the leases were for a
D
period expiring on August 31, 1978. By an agreementdated September9, 1978
the leases were extended for a period of three months till November 30, 1978.
On failure on the part of the appellants to handover the possession on the expiry
of the leases on November 30, 1978, the respondents nos. 1 to 5 filed the suit
giving rise to this appeal in the court of Addi. City Civil Judge, Bangalore city.
E
The suit was originally filed on the basis that under Section 31 of the
Act, the provisions contained in part V (including Section 21) of the Act were
not applicable to a non-residential building, the monthly rent of which ex-
ceeded Rs. 500 or the annual rental value of which exceeded Rs. 6,000. It was
claimed that the rent in respect of the suit premises exceeded Rs. 500 per mouth
F
and the provisions of the Act did not apply to the leases in question. During
the pendency of the suit, Section 31 of the Act was struck down by the Karnataka
High Court in H. Padmanabha Rao v. State of Kamataka. !LR (1986) Kar.
2480. After the said decision, the appellants amended their written statement
on June 25, 1988 raising the plea that the provisions of the act covered the
G lease in question and the suit was not maintainable and that the Civil Court
had no jurisdiction to entertain the suit. In view of the said amendment in the
written statement, the plaintiff - respondents were permitted to file a reply by
way of rejoinder. In the rejoinder, the plaintiff-respondents pleaded that the
lease was of a well equipped permanent cinema theatre with all the equipments,
H namely, machineries, fixtures, furniture and fittings etc ..and was not a mere
B.G. KUMARVELU v. K.R. CHEITY [AGRAWAL, J.] 47
ordinary tenancy of a building, and, therefore, the provisions of the Act were A
not attracted. In the light of the said plea, the following additional issue was
framed by the Trial Court :

. "Is the suit not maintainable in view of section 31 of the K.R.C. Act
was struck down and this court has no jurisdiction to try the suit?"
B
The IV Addi. City Civil Judge, by his Judgment dated January 7, 1989,
decreed the suit and directed the appellants to deliver vacant possession of the
Opera House building, furniture, fittings, machinery fittings, fixtures etc. It
was, however, found that the projectors, amplifiers, screen and speakers were
not the property of the plaintiffs as claimed by them and dismissed the suit of
the plaintiff-respondents in respect of the said properties. The trial court has
c
· held that though the plaintiffs have not alleged in the plaint, that it was a com-
posiie lease of a running cinema theatre but from a reading of the plaint, in
entirety, it is clear that the plaintiffs have leased out the cinema theatre as a
running concern. The trial court has held that Phu! Chand had taken the premises
to run it as a cinema theatre and thereafter the father of the appellants and, D
after his death, the appellants have continued to be the lessees of the cinema
theatre as such but not the building or the furniture and that a fully equipped
cinema theatre was leased in favour of the appellants and that they also had
taken the cinema theatre as a running concern, and, therefore, the suit was
maintainable even though section 31 of the Act had been struck down. E

The High Court, on appeal, has affirmed the said judgment of the IV
Addi. City Civil Judge. The High Court has upheld the finding recorded by the
trial Court that the lease did not include the projectors, amplifiers, screen and
speakers. The High Court, however, held that the dominant purpose of the
lease was to run a cinema business in the building with the furniture, machin- F
ery and equipment provided therein and that in fact the lease is a composite
lease of the building with furniture, fittings, machineries and equipments for
running a cinema theatre and the lease was outside the purview of the Act and
the same does not come under the provisions of the Act. In coming to the said
conclusion, the High Court has placed reliance on the d.ecisions of the this
G
court in Uttamchandv. S.M. Lalwani, AIR 1965 S.C. 716, andDwarkaPrasad
v. Dwarka Das Saraf, [1976] l S.C.R. 277. The decision of ihe Madhya Pradesh
High Court in Anant Gadre v. Smt Gomtibai, AIR (1983) M.P. 72 was held to
be inapplicable in the facts of ihis case.

Before we proceed to deal with the submissions of the learned counsel, H
48 SUPREME COURT REPORTS [1996] l S.C.R.
A it would be necessary to refer to the definition of the expression "premises"
and "building" as contained in the Act. The "premises" is defined in section
3(n) of the Act in the following terms :
11
(n) "Premises" means -

B (i) a building as defined in clause (a) ;

(ii) any land not used for agricultural purposes; "

The expression "building" is defined in Section 3(a) of the Act as fol-
lows:
c "(a) "building" means any building or hut or part of a building or hut
other than a farm house, let or to be let separately for residential or
non-residential purposes and includes -

(i) the garden, grounds and out houses, if any appurtenant to such
D building, hut or part of such build.ing or hut and let or to be let along
with such building or hut or part of building or hut;

(ii) any furniture supplied by the landlord for the use in such building
or hut or part of a building or hut;

E (iii) any fittings affixed to such building or part of a building for the
more beneficial enjoyment thereof, but does not include a room or
other accommodation in a hotel or a lodging houses".

The definition of "building" in Section 3(a) of the Act is similar to the
definition of the expression "accommodation" in Section 3(a) (y) of the Madhya
F Pradesh Accommodation Control Act, 1955 and Section 2(a) of the U.P. (Tem-
porary) Control of Rent and Eviction Act, 1947.

In Uttamchand v. S.M. Lalwani (supra) this Court has dealt with the
question whether the lease in respect of a Dal Mill building with fixed ma-
chinery could be said to be a lease of accommodation' within the meaning of.
G Section 3(a) (y) of the M.P. Accommodation Control Act, 1955. It was urged
that the lease was of the Dal Mill building and that the machinery came under
the lease was incidentally as having been fixed in the said building. It was
submitted that the court must apply the test of the dominant intention of the
parties. Construing the lease deed by applying the test of the dominant inten-
H tion of the parties, the Court held that though the document purported to be a
B.G. KUMARVELU v. K.R CHETTY [AGRAWAL, J.] 49
lease in respect of the Dal Mill building the said description was not decisive A
~·
of the matter and that it was not a case where the subject-matter of the lease
was the building and along with the leased building incidentally passes the
fixture of the machinery in regard to the Mill and that in truth it was the Mill
which was 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. In that context. this Court has held that the fixtures in the schedule to
B
the lease are in no sense intended for the .more beneficial enjoyment of the
building and that the fixtures are the primary objects which the lease was in-
tended to cover and the building in which the fixtures are located comes in
incidentally. It was, therefore, held that it was a case where the tenant had
entered into the lease for the purpose of running of the Dal Mill which was c
located in the building and that a Mill of this kind would have to be located in
some building or another, and so, the mere fact that the lease purported to be in
respect of the building would not make it a lease in respect of an accommoda-
tion as defined in Section 3 (a) (y) (3) of the M.P. Accommodation Control
Act, 1955.
D
In Dwarka Prasad v. Dwarka Das Saraf (supra), the question which
came up for consideration before this Court was whether a cinema theatre
equipped with projectors and other fittings and ready to be launched as an
entertainment house was an accommodation as defined in section 2(1)(a) of
the U.P. (Temporary) Control of Rents and Eviction Act, 1947. As indicated E
by the Court, the core of the controversy was whether the lease was of the
building, the fittings and the fixtures merely making for the beneficial enjoy-
ment of and ancillary to the building, as urged by the tenant, or whether the
building provided a bare, though appropriately designed, enclosure to have an
enterprise, the dominant purpose or real subject of the lease being the cinema,
apparatus and fittings, including subsidiarily and incidentally, though neces-
F
sarily the structure of brick and mortar. The Court held that the lease of an
"accommodation" must essentially be of a building - not a business or industry
together with the building in which. it is situated. Referring to the amenities
which may be provided in the building by landlord to see that the tenants'
enjoyment of the tenament may be more attractive, viz., furniture and fittings, G
it was observed that the crucial point is that these additions are appurtenant,
subservient and beneficial to the buildings itself and they make the occupation
of the building more convenient and pleasant but the principal thing demised
is the building and the additives are auxiliary and that whether the lease is
composite and has a plurality of purposes, the decisive test is the dominant H
50 SUPREME COURT REPORTS [1996] 1 S.C.R.
A purpose of the demise. In that case the rent for the building was Rs. 400 per
1
month and the rent for the projector and all other items fixed in the building
was Rs. 1,000 per month and the commencement of the lease was to synchro-
nize with the inaugural cinema show on March 25, 1953. In the light of these
facts it has been held :

B "In the present case we have to visualize what was the dominant or
decisive component of the transaction between the parties, the ten-
ancy of the building qua building or the taking over of a cinema house
as a business, the projectors, furniture, fittings and annexes being the
moving factor, the building itself playing a secondary, though neces-
c sary, role in the calculations of the parties. Going by the rental appor-
tioned, it is obvious that the parties stressed the cinema equipment as
by far the more important. Judging by the fact that there had already
been a cinema in this house for several years, with the necessary cer-
tificates under the various statutes for running a cinema theatre ob-
tained by the landlord and that the lease itself was to commence only
D J
from the date of the first show of the films, doubts regarding the es-
sential object and subject of the bargain stand dispelled." [pp.283-84]

"In the case before us the fixtures are not for the more beneficial en-
joyment of the building. On the contrary, the possession of the build-
E ing is made over as an integral part of, and incidental to, the making
over of the cinema apparatus and costly appliances. In the language
of the learned Chief Justice in Uttam Chand case (supra), the 'fix-
tures are the primary object which the lease was intended to cover
and the building in which the fixtures are located comes in inciden-
tally." [p.287]
F
"A lease of a lucrative theatre with expensive cinema equipment, which
latter pressed the lessee to go into the transaction, cannot reasonably
be reduced into a mere tenancy of a building together with fittings
which but make the user more comfortable." [pp. 289-90]
G Shri P.P. Rao, the learned senior counsel appearing for the appellants,
has urged that adopting the dominant test laid down by this Court in Uttamchand
v. S.M. Lalwani (supra) and Dwarka Prasad v. Dwarka Das Saraf(Supra) the
lease in the present case is primarily a lease for the building and the fittings
and furnitures etc. are incidental to the building which was meant to be used as
H a cinema theatre and, therefore, the lease is for a 'building' as defined in Sec-
B.G. KUMARVELU v. K.R. CHETTY [AGRAWAL, J.] 51
tion 2(a) of the Act, in this regard Shri Rao has laid emphasis on the fact that A
projectors, amplifiers, screen and speakers were not part of the equipment that
was leased out and that lhe said equipment has to be provided by the appel-
lants and, therefore, that it was not a lease in respect of the business of a cin-
ema theatre or for running a cinema theatre. The submission is that furniture,
fittings and other equipment which was leased out along with the building was
B
for the beneficial enjoyment of the building which had been constructed for
being used as a cinema theatre and the said furniture, fittings and equipment
were incidental and not the dominant purpose of the lease and that the domi-
nant purpose of the lease was the building which was to be used as a cinema
theatre. Shri Rao has also submitted that in the present case the furniture was
owned by the respondents nos. 3, 4 and 5 while the building, fittings and the c
equipment were owned by respondents nos. 1 & 2. Moreover, Shri Rao has
pointed out that as per the terms of the lease the rent for the building payable
to respondents nos. 1 & 2 was Rs. 2,750 per month and rent for the furniture
that was payable to respondents nos. 4 & 5 was Rs. 500 per month which was
later on raised to Rs. 1000 per month. Shri Rao has placed reliance on the D
Judgment of the High Court of Madhya Pradesh in Anant Gadre v. Smt.
Gomtibai (supra) where the lease was of a cinema building with the furniture,
fans and other fittings but without projector or the machinery for exhibition of
films and it was held that the dominant intention was to lease out the building
with furniture and fittings and not to let out the cinema business. Shri Rao has
E
urged that in the impugned judgment the High Court was in error in holding
that the said case was not applicable in the facts of this case.

Shri Harish N. Salve, the learned senior counsel appearing for the plain-
tiff-respondents, has submitted that the purpose of the lease was to run a cin-
ema which was already running in the premises and in this regard he has in- F
vited our attention to the earlier leases granted in favour of Phulchand and
Govindrajan as well as the appellants. The submission of Shri Salve is that the
lease for furniture was not an independent transaction and that the High Court
has rightly held that the dominant intention was to grant the lease for running
a cinema theatre. Shri Salve's contention is that the mere fact that some
G
equipments were not leased out would not alterthe nature of the lease.

Though there are separate lease deeds executed by respondents nos. I
and 2 in respect of their respective shares in the premises and separate lease
deeds have been executed by respondents nos. 3 to 5 for the furniture but
having regard to the leases executed earlier, we will treat all of them as part of H
52 SUPREME COURT REPORTS [1996] l S.C.R.
A a single lease for the building, fittings and equipment and furniture.
In view of the decisions of this Court in Uttamchand v, S.M. Lahvani
(supra) and Dwarka Prasad v. Dwarka Das Saraf, (supra) for the purpose of
detennining whether the lease in the present case is in respect of a ·building'
under Section 3(a) of the act so as to fall within the ambit of expression ·~

B "premises" as defined in section 3(n) of the Act. We have to apply the test
of the dominant intention of the parties. It is, therefore, necessary to find out
what is the dominant purpose of the demise. The property covered by the
lease is the cinema building, fittings· and furniture and some equipment. The
projectors, amplifiers, screen and speakers are, however, not included int.he
demise. In the lease deeds that were executed from time to time since 1944
c the rent for the building and fittings and the hire for furniture. and machinery
. etc. has been apportioned and that rent for the building is much more than
to the hire for furniture and machinery etc., the ratio being 2 : I approxi-
mately. It cannot, therefore, be said. that cinema equipment is more important
part of the demise than the building. Having regard to the apportionment of
D the rent for the building and the furniture and equipments it can be said that
the dominant purpose of the demjse is the building qua building and the
fillings and other equipment only incidentally pass with the building which
has been constructed for being used as a cinema theatre. This is not a case
where it can be said that the fittings and the equipment are the primary
E objects which the lease was intended to cover and the building in which they
are located comes in incidentally. It must, therefore, be held that the dominant
intention of the parties was to let out the building for being used a cinema
theatre and it cannot be said that the dominant intention was to let out the
fittings, furnitures and equipment and the building playing a subsidiary role
only. Moreover, in the absence of the projectors, amplifiers, screen and the
F speakers, which are the major part of the equipment required for exhibition
of films it cannot be said that the lease was of a running cinema business or
of a fully equipped running cinema theatre. On that view of the matter there
is no escape from the conclusion that the lease in favour of the appellants is
of a 'building' as defined in Section 3(a) of the Act and it falls within the
G ambit of the expression "premises" as defined in Section 3(n) of the Act. This
would mean that the appellants are entitled to the protection of the provision
of the Act in the matter of eviction and they can be evicted only in accordance
with the provisions of the Act in proceedings initiated before the appropriate
forums.

H Since we are of the opinion that the lease was primarily of a 'building'
B.G. KUMARVELU "· K.R. CHEITY [AGRAWAL, J.] 53
falling under section 3(a) of the Act and the appellants are entitled to the pro- A
tection of the Act in the matter of eviction, it must be held that the suit filed by
the plaintiff-respondents for the eviction of the appellants in the Civil Court
was not maintaina.ble. The appeal is. therefore, allowed, the judgment and
decree of the High Comt dated 22nd April, 1994 in Regular First Appeal No.
80 of 1989 as well as the judgment.and decree of the JV Addi. City Civil
Judge, Bangalore city dated January 7, 1989 in Original Suit No. 409 of 1980
B
are set aside and the said suit filed by the plaintiff-respondents for the eviction
of the appellants is dismissed. There is no order as to costs.

RA. Appeal allowed .

.).