P L D 1962 (W (PLP)

WAHIDUDDIN AHMED, J.‑This regular first civil appeal pertains to the screening of the picture "Sajan" belonging to the appellants for four weeks commencing from the 30th of April 1954 in the Ritz Cinema, Karachi, on a fixed rent of Rs. 4,500 per week under an agreement dated 22nd of April 1954. Under the terms of this agreement the respondent placed his cinema at the disposal of the appellants and bound himself to screen the picture "Sajan" at his cinema for seven consecutive days of the week for regular shows as are held in the month of Ramzan. The management of the cinema during this period was to remain with the respondent, who agreed to pay to the appellants all the net collections of the week after deducting the agreed amount of Rs. 4,500 towards hire plus Municipal taxes and Government documentary rentals on every Friday of the succeeding week. In case the collection in any particular week be insufficient to cover the agreed hire, it was agreed that the appellants will be liable to pay the difference on Friday of the succeeding week. In pursuance of this agreement it is admitted by the parties that the picture "Sajan" was exhibited at the Ritz Cinema from the 30th of April 1954 for four weeks at a fixed hire of Rs. 4,500 per week. The appellants claim that the respondent committed breach of contract in so far as he did not allow them to screen their said picture at the 6‑30 show on Mondays, Tuesdays, Wednesdays and Thursdays during the period of lease. In this connection they claimed Rs.2,866‑8‑0 as compensation at the rate of Rs. 204‑12‑0 per show. They further claimed that the whole of the Ritz Cinema for all the time during the period of lease was at their disposal for screening the said picture but the respondent contrary to the terms of the agreement used the said cinema for screening his own English picture for the morning show throughout the period of lease which they had no right to do. They contend that the respondent is liable to account for the use of the Riaz Cinema for screening his English picture in the mornings and in this connection claimed Rs. 1,777‑14‑0 as per statement of collections, annexure "B" filed with the plaint. They also claim Rs. 540 as price of 50 yards of double horse baskey cloth at the rate of Rs. 350 per piece and Rs. 190 as the value of one Banarsi sari alleged to have been supplied to the respondent in May 1954. Accordingly on the 30th of April 1957 they filed Suit No. 267 of 1957 in the Court of Third Sub‑Judge, First Class, Karachi for the recovery of the above‑mentioned claims. The respondent resisted the suit and denied his liability in respect of the appellants' claim. Amongst others, he contended that the appellants' firm is not the proprietor of Messrs Green Films, Karachi and had no locus standi to file the suit. He further contended that under the terms of the agreement the picture "Sajan" was to be screened for seven consecutive days of the week in the regular shows as are held during the month of Ramzan and as the respondent right from 1950 had not exhibited any show in the above‑mentioned cinema at 6‑30 p.m, during the month of Ramzan on Mondays, Tuesdays, Wednesdays and Thursdays he was fully justified in not screening the above?mentioned film on the said days and repudiated his liability for the claim of the appellants in this respect. He also resisted the appellants' claim in respect of the screening of his own English film at tire morning show during the week and pleaded that the morning show being not a regular show, the appellants were not entitled to screen their picture fn the morning and as the whole of the cinema house was not let out to the appellants they are not entitled to claim any damages in this respect. Mr. S. M. Abdul Aziz Jafri, the then Sub‑Judge, First Class, Karachi, by judgment dated 19th of May 1958 in Suit No. 267 of 1957, dismissed the appellants' suit and held that the appellants are not competent to file a suit on behalf of Messrs Green Films and that on merits also the respondent is not liable to pay any claim or part of the claim. The appellants have given up their claim in respect of the cloth supplied to the respondent and there is no dispute between the parties before us in that respect. The questions involved in this appeal are (1) whether the learned Subordinate Court was justified in holding that the appellant firm is not entitled to file a suit on behalf of Messrs Green Films ; (2) Whether they have any ;,valid claim in respect of the non‑screening of the picture "Sajan" at 6‑30 p.m. show on Mondays, Tuesdays, Wednesdays and Thursdays during the period of lease and (3) whether the appellants are entitled to claim any amount from the respondent for the use of Ritz Cinema for screening his English picture in the morning shows during the period of lease either as benefit gained by him or as damages. As far as the first question is concerned, the appellants have produced a registration certificate of their firm and agreement (Exh. A‑22) entered into between the partners in support of their contention that Messrs Green Films is owned by them and they are entitled to file a suit on behalf of the said firm. It is true that neither the registration certificate (Exh. 9) nor the agreement of partnership (Exh. A‑22) mentions anything about the carrying on of the business of Green Films or its proprietorship. But in Exh. A‑22 it is clearly mentioned that the partnership firm namely Messrs Green Silk House, apart from silk, zari and other business will also be entitled to carry on business in such other commodities as the parties may decide between themselves. 1 Clause 2 of Exh. A‑22 is considered along with the statement of P. W.

1. Rehmatullah who made a categorical statement that the partnership carries on business in the name of Green Films also, it is quite clear that the appellant firm is the proprietor of Green Films. D. W. 1 Muhammad Nurullah the proprietor of the respondent firm has not denied this fact on oath. The agreement in question on behalf of the appellants was entered through P. W. Rehmatullah and there is nothing on the record to suggest why the statement of this witness that Messrs Green Silk House is carrying on business of Green Films should not be accepted. In our opinion the learned Subordinate Judge's finding on this question is not correct. We therefore hold that the appellant firm was competent to sue on behalf of Green Films and the suit was wrongly dismissed on this ground. This brings us to the question whether the respondent was justified in not exhibiting the picture "Sajan" at the 6‑30 p.m. show on Mondays, Tuesdays, Wednesday and Thursdays of the four weeks during which he had let out his cinema to the appellants. The decision of this question depends on the inter?pretation of the following term of the agreement dated 22nd April 1954, which is in the following words: "That you hereby agree to screen your picture 'Sajan' at our Cinema from 30th April 1954 and shall pay us a fixed hire of Rs. 4,500 (rupees four thousand five hundred only) for seven consecutive days of week of regular shows as are held during the month of Ramzan." The appellants' case is that in all the other cinemas of Karachi the 6‑30 p.m. show is held during the month of Ramzan. This allegation is supported by the statement of P. W. Rehmatullah made on oath and it is further supported by the cuttings of newspapers (Exhs. 1 to 7) produced by this witness. There is no doubt that in other cinemas of Karachi 6‑30 p.m. shows are held as a regular show during the month of Ramzan but D. W. 1 Nurullah, the proprietor of the respondent's firm, stated on oath that since 1950 up to date he bad been showing two shows in Ramzan on Mondays, Tuesdays, Wednesdays and Thursdays at 3‑30 and 9‑30 p.m. In support of his version this witness produced before the learned Subordinate Judge daily collection registers for the years 1950‑51 to 1957‑

58. We have also inspected these registers during the hearing of the appeal and the statement of this witness that no 6‑30 p.m. show was held during the month of Ramzan right from 1950 is absolutely correct and cannot be doubted. Unfortunately there is nothing in the statement of this witness that the appellants were apprised of this fact or they were furnished with any specific information in this respect, but the admission of P. W. Rehmatullah that he later on learnt that in the respondent's cinema 6‑30 shows are not held during the month of Ramzan on the above‑mentioned days makes it perfectly clear that the respondent during the period of lease informed the appellants about his practice and the fact that they remained silent and did not raise any objection during the period of lease indicated that they bad accepted not to exhibit the picture in such shows which the respondent had not been showing in his cinema during the month of Ramzan. The language of the term on which the agreement between the parties was entered Into is not very clear on this point, but we are satisfied that the intention of the parties was that the film in question would be exhibited at such regular shows as are held in Ritz Cinema during the month of Ramzan. Mr. Modur Rehman, the learned counsel for the appellants has not been able to satisfy us that the finding of the learned Subordinate Judge in this respect is not supported by the evidence on the record. We therefore hold that the appellants are not entitled to claim any compensation for not showing the picture "Sajan" at the 6‑30 p.m. show during the period of lease which admittedly fell during the month of Ramzan. The last question for consideration in this appeal is whether the appellants are entitled to claim any amount from the respondent for the use of the Ritz Cinema for screening his English pictures in the morning show during the period of lease either as benefit gained by him or as damages. The learned Subordinate Judge has dismissed the appellants' claim in this respect on the short ground that under the terms of the agreement the respondent was bound only to show "Sajan" picture at the regular shows held in his cinema during the month of Ramzan and as the morning show is not one of the regular shows the appellants cannot claim any amount as compensation or other?wise. This is not the real aspect of this question. The important question for determination on this point is whether the whole of the cinema house was let out during the month of Ramzan to the appellants or the respondent had reserved any right to use the cinema for his own purposes during the operation of the lease. The answer to this question depends on the terms of the agreement (Exh. 10) itself. There is nothing in the terms of the agreement which shows that the respondent reserved any such right. On the contrary the terms of the agreement show that he had let out the whole of the cinema house for the period of lease to the appellants and had taken upon himself the management of the cinema during this period on the condition that he will collect the income of the picture "Sajan" and after deducting the fixed hire of Rs. 4,500 per week would pay the balance of the amount to the appellants. The most important term of the agreement was that in case the income falls short of the fixed amount the respondent would be entitled to claim it from the appellants in the second week of the week concerned. The respondent has not denied on oath that he did not let out the whole of the cinema for the period of lease. On the other hand the statement of P. W. 1 Rehmatullah shows that he has made an emphatic statement that the whole of the cinema was let out to them for exhibiting their picture "Sajan". We have, therefore, no difficulty in holding on the evidence on the record that the respondent had let out the whole of the cinema for the period of lease without any reservation. It is not disputed that the respon?dent had used the cinema premises for his own business and earned considerable profit out of it. In these circumstances the question arises whether the appellants are entitled to claim any compensation from the respondent for its wrongful use. It is a well settled principle that where a landlord commits wrongful and unlawful acts which deprive the tenant of the beneficial use and enjoyment of the property, it amounts to constructive eviction and the tenant enjoys immunity from the payment of rent until the landlord again permits him to have quiet enjoyment. This principle is invariably applied in cases where the tenant either claims abatement of the rent or retains any part of the rent on account of having been deprived of the beneficial enjoyment of the lease. In this case, however, the appellants have enjoyed rights under the lease but have been partly deprived of its enjoyment. We see no reason why this principle should not also be followed in such cases. In Meenakshi Sundara Nachiar v. Sa. Rm. Ch. 1 Chetty and others (15 I C 711), a Division Bench of the Madras High Court in this connection observed as under:‑ "In our opinion, it is difficult to hold on principle, that the landlord is not entitled to any portion of the rent if the tenant remains in possession of a portion of the land let. He must be held entitled to it on the contract of lease, since the tenant prefers not to throw up the lease during the period of eviction or as compensation for use and occupation and it would, in our opinion, be reasonable to hold that the tenant, where he retains possession of a portion of the land, must be estopped from pleading that he is not liable for the rent of that portion. Strictly speaking, where the tenant has once been let into occupation of the premises leased to him, his right in law, where he is deprived of possession of a part thereof is only to damages while he is liable to pay the rent; and it is only a rule of convenience that he should be allowed to enforce his right to damages by setting them off in the landlord's action for rent." This view is also supported by the observation of their Lordships in (Rai) Jatindra Nath Chowdhury v. Uday Kumar Das (AIR 1931 P C 104) and Ram Lai Dutt Darkar v. Dhirendra Nath Roy (AIR 1943 PC 24). We would therefore hold that the appellant's claim under this head is fully justified and should have been allowed by the learned Subordinate Judge. In any case the terms of the agreement between the parties proves that the respondent acted as an agent of the appellants for the management of the shows on their behalf during the period of lease. Under section 216 of the Contract Act if an agent, without the knowledge of his principal, deals in the business of the agency on his own account instead of an account of his principal, the principal is entitled to claim from the agent any benefit which may have resulted to him from the transaction. In our opinion on the principles underlying this provision of law the appellants' claim is maintainable and should have been allowed by the respondent. There is no dispute between the parties in respect of the amount due. The appellants have filed annexure "B" along with the plaint showing the income earned by the respondent in screening his English pictures at the morning shows, which amounts to Rs. 1,777‑14‑

0. We would therefore allow the appeal in the sum of Rs. 1,777‑14‑0 with proportionate costs throughout. The rest of the claim is dismis?sed with no order as to costs. A. H. ??????????? Order accordingly.