Judgement JUDGMENT :- Suit (a) for ejectment and delivery of vacant possession of the suit premises inclusive of the equipment, machinery, fittings and furniture as detailed in schedules 1 and 2 of the plaint in the same condition in which they were at the time when the defendants were put in possession subject to natural wear and tear; (b) for payment of Rs. 3362-10-0 being the difference in Corporation Tax paid by the plaintiff and of for payment as mesne profits or damages for use and occupation a sum of Rs. 2,700/- from 1-3-1953 upto the date of filing the suit at Rs. 150/- per day and similar mesne profits at the same rate from date of plaint till date of delivery of possession and (d) for costs. 2. The case for the plaintiff is : The plaintiff is the owner of the premises known as Roxy Theatre at, Purasawalkam High Road, Madras. It was leased out to the defendants under a lease deed dated 17-4-1346 on a monthly rent of Rs. 1500 for the Talkie premises and a hire of Rs. 250/- per month for the moveables talkie equipment, furniture and fittings. The lease got determined on 21-10-1919. But the defendants continued to occupy the theatre and make use of the machinery even after the expiry of the lease on the foot that they were there as statutory tenants under the provisions of the Madras Buildings (Lease and Rent Control) Act and intimated the plaintiff to this effect. Then the plaintiff moved the State of Madras and by G.O. No. Ms. 270 dated 2-2-1953 the Government exempted the theatre from the operation of the Madras Buildings (Lease and Rent) Control Act. This notification of exemption was published at page 187 of the Fort St. George Gazette dated 11-2-1953. The plaintiff after receipt of the order of the Government exempting the building from the operation of the Rent Control Act, issued notice to the defendants on 6-2-1953 terminating the lease with effect from the expiry of 28-2-1953. It is in these circumstances that the plaintiff has filed this suit for the reliefs mentioned above. 3. The defendants case is that the exemption granted by the Government is not valid and they have no power to grant the exemption. It is in these circumstances that the plaintiff has filed this suit for the reliefs mentioned above. 3. The defendants case is that the exemption granted by the Government is not valid and they have no power to grant the exemption. The next objection taken is that the notice to quit issued on 6-2-1953 was received by the defendant on 7-2-1953 while the order exempting building was published in the Fort St. George Gazette only on 11-2-1953 and therefore the notice is invalid. Thirdly, the defendants contend that the claim for mesne profits at Rs. 150/- per diem is exorbitant. Finally, in regard to the claim for excess property tax, the claim of Rs. 57-8-0 per half year as Library Cess is admitted by the defendants and the claim for excess property tax before the period exempting the building from the operation of the Act is disputed on the ground that it would constitute a premium forbidden to be received from a tenant and the claim for excess property tax after the period of exemption is disputed on the ground that as the State Government has no power to grant the exemption the defendants are not tenants holding over but statutory tenants under the provisions of the Madras Buildings (Lease and Rent) Control Act and therefore any such claim would be in the nature of a premium. 4. The points for determination are (a) whether the plaintiff is entitled to a decree directing the defendants to quit and deliver vacant possession of premises Nos. 8 and 9 Purasawalkam High Road. Purasawalam, Madras, known as Roxy Theatre, together with the machinery, equipment and fittings and furniture mentioned in Schedule 2 of the Plaint; (b) whether the notice given by the plaintiff is bad in law; (c) whether the plaintiff is entitled to mesne profits and if so, at what rate; and (d) whether the plaintiff is entitled to the excess property-tax. 5. Point (a) :- The defendants case that the exemption granted by the Government was not valid and that the Government had no power to grant the exemption was tested in Writ Appeal No. 27 of 1953 and the Bench composed of the learned Chief Justice and Panchapakesa Ayyar, J. upheld the exemption granted to the plaintiff as valid and this decision is reported as - Globe Theatres Ltd. v. State of Madras, AIR 1954 Mad 690 (A). Thereupon the defendants took out an application for leave to appeal to the Supreme Court and asked for stay of the present suit and the appellate Court has directed that the suit would go on and that if a decree for possession is passed it would not be executed pending disposal of the intended appeal to the Supreme Court. Therefore point (a) fails. 6. Point (b) :- The objection taken by the defendants is that the notice to quit was issued on 6-2-1953 and received by the defendants on 7-2-1953 while the order exempting the building was published in the Fort St. George Gazette on 11-2-1953 and therefore the notice is invalid. First of all in this case that notice to quit was given after the receipt of the order of the Government by the plaintiff and before it appeared in Fort St George Gazette. Therefore the notice has been issued in time. Secondly, the plaintiff rightly contends that, whether exemption is grafted or not, he is entitled to terminate the lease and file a suit for eviction, the only handicap being that any decree obtained by him will not be executable if the Rent Control Act should apply to this building.It is now well settled that a decree in ejectment can be passed by the Civil Court and all that the Madras Buildings (Lease and Rent) Control Act ensures is that during the subsistence of that Act the Civil Court cannot execute the decree nit the landlord will have to take appropriate steps under the provisions of the said Act. There is no taking away of the jurisdiction of the Civil Court but only an imposition of restrictions in regard to the mode of execution. Muhammadunny v. M. Unnuri, AIR 1949 Mad 765 (B); In re, V.R.R. Sami Ayyar, AIR 1949 Mad 321 (C). I have just now mentioned how the defendants took out an application for leave to appeal to the Supreme Court and asked for stay of the present suit and how the appellate Court directed that the suit would go on and that if a decree for possession is passed in favour of the plaintiff it will not be executed till the disposal of the intended appeal to the Supreme Court. Therefore, point (b) fails. 7. Therefore, point (b) fails. 7. Point (c) :- On the materials before me I have come to the conclusion that the rent payable should be fixed at Rs. 2,500/- per month and this is based upon the following factors. The defendants themselves are paying for the New Globe Theatre Rs. 3,500/- per month. Rajakumari Talkies which is situate in T Nagar is fetching a rent of Rs. 4,000/- per month; Vide Ex. P-6. The lessees have paid an advance of Rs. 50,000/- Rs. 25,000/- being treated as advance rent and the balance of Rs. 25,000/- as tenants deposit. The lessees have undertaken to pay the property-tax. Ex. P. - 7 is the certified copy of the lease deed of the Wellington Talkies. The rent for this is Rs. 3,000/- per month. The lessee has to spend every year Rs. 2,400/- towards improvements and additions and if in any year the said sum is not spent it should be aggregated and spent in the succeeding years. Besides, the lessee has to insure the premises and fittings from loss or damage by fire at the sum of Rs. 1,50,000/-, and pay the premium amounting to Rs. 1640/- per year. The Broadway Talkies which is much smaller than the Boxy Theatre in accommodation is fetching a rent of Rs. 3,000/- per month. The Odean Talkies is fetching a rent of Rs. 4250/- per month. The Paragon Talkies at Mount Road is paying a rent of Rs. 1700/- per month for the land alone, the entire building having been constructed by the lessees at their own cost. The Plaza Talkies at Mount Road is likewise paying a rent of Rs. 1500/- per month for the ground lakhs. The lessees themselves have constructed the theatre at their own cost spending over three lakhs of rupees. It is unnecessary to multiply these instances to show that the claim of Rs. 150/- per diem is not exorbitant. But having regard to the recession in business and the downward trend of rents and the fact that the defendants are staging their first-class pictures in the New Globe in Mount Road, Madras, and using the Roxy Talkies as a subsidiary or secondary Talkie house exhibiting second-run and third-rim pictures and the Commissioner of Police has called upon the plaintiff to make structural alterations, I consider that Rs. 2,500/- per month is a fair and reasonable rent. 2,500/- per month is a fair and reasonable rent. I need not point out that this theatre is situated in a very good locality on the main Purasawalkam High Road and is served by buses from all parts of the town and is situated in Anglo-Indian locality where English pictures are very popular and if first class pictures are exhibited the box office receipts will inevitably improve and this figure of Rs. 2,500 can be stated to err more on the side of strictness rather than liberality. In arriving at this figure I am well aware that it is not based upon scientific data or based upon irrefragable reasons or can claim to be calculated with mathematical precision. But then the only material made available to me is the rentals of other Cinema houses of more or less of the same description. This no doubt, a recognised method of determining rent. This method is subject to this defect namely no two pieces of property can be precisely similar in all their circumstances and conditions. There must be differences always though of varying degrees and no hard and fast rule can be laid down as to the allowances to be made for such differences Improvement Trust of Bombay v. Karsondas, 33 Bom 28 (D); - Raghunath Das v. Collector of Dacca, 6 Ind Cas 457 (E). But valuation is not an exact science. It is an enquiry relating to a subject abounding in uncertainties where there is more than ordinary guess work and where it would be very unfair to require an exact exposition of reasons for the conclusions arrived at. It is not an algebraic problem which can be solved by an abstract formula. A certain amount of conjecture is inevitable but Courts should be careful not to go too far in this direction. This I have endeavoured to do. Asst. Dev. Officer, Trombay v. Tayaballi, AIR 1933 Bom 361 (F); - Secy. of State v. Charles-worth, 26 Bom 1 (PC) (G); - Secy. of State v. Altaf Hussain, AIR 1927 Cal 827 (H); - Secy. of State v. Arnulyacharan Banerjea, AIR 1927 Cal 874 (I); - Collector of Dacca v. Gholam Kuddus Choudhry, AIR 1936 Cal 688 (J); - Nowroji Rustomji Wadia v. Govt. of Bombay, AIR 1925 PC 211 (K); - Secy. of State v. Altaf Hussain, AIR 1927 Cal 827 (H); - Secy. of State v. Arnulyacharan Banerjea, AIR 1927 Cal 874 (I); - Collector of Dacca v. Gholam Kuddus Choudhry, AIR 1936 Cal 688 (J); - Nowroji Rustomji Wadia v. Govt. of Bombay, AIR 1925 PC 211 (K); - Secy. of State v. Gobind Ram, 11 Ind Cas 833 (Lah) (L) and - Amrit Lal y. Secy. of State, 22 Ind Cas 78 (M). Point (c) is answered accordingly. 8. Point (d) :- In regard to the claim for excess property tax it falls under two heads, viz., before the date of notification and after notification. In regard to the claim for excess property-tax before exemption, the defendants contend that they are not liable on two grounds, viz. (i) that they are not tenants holding over but statutory tenants and the claim could be made only if the statute allows it; and (ii) provisions of Ss. 6 and 5-A, Madras Buildings (Lease and Rent Control) Act, prevent the landlord from recovering excess property-tax as it is in the nature of a premium and cannot be recovered after the fair rent is fixed as it is prohibited under S. 6 of the said Act. But as rightly contended for by the learned Advocate for the plaintiff, S. 6 does not equate Municipal tax with premium and though we have no decided cases on this subject so far as this. State is concerned, this Section is in pari materia with S. 4, United Provinces (Temporary) Control of Rent and Eviction Act, 3 of 1947, and it has been held in - Someshwar Dayal v. Dwarakadnish Ji Maharaj, AIR 1950 All 61 (N) that municipal tax is not a premium and could be recovered by the landlord. Similarly, it has been held by the Calcutta High Court in - Sarkar and Bros. (Properties) Ltd. v. Anil Kumar, AIR 1952 Cal 56 (O) construing S. 4, West Bengal Rent Control Act, 38 of 1948. Then it is also rightly contended by the learned Advocate for the plaintiff that S. 5-A of the Act has also no application. That section is intended to give an additional advantage to the landlord when there are no special covenants between the parties authorising the landlord to recover property-tax from the tenant. Then it is also rightly contended by the learned Advocate for the plaintiff that S. 5-A of the Act has also no application. That section is intended to give an additional advantage to the landlord when there are no special covenants between the parties authorising the landlord to recover property-tax from the tenant. It has no application to a case as here where there is a specific covenant in favour of the landlord. The Rent Control Act does not abrogate all the covenants between the parties except in regard to the rent and the grounds on which a tenant could be evicted. Therefore the plaintiff is entitled to recover the excess property-tax claimed by him. But to what extent is the final point for consideration. It is not disputed before me that in the circumstances of this case it will be fair and equitable to make the parties to bear this in moieties and point (d) is found accordingly. 9. In the result, I find that the plaintiff is entitled to a decree directing the defendants to quit and deliver vacant possession of the suit properties including all the equipment, machinery, fittings, furniture, etc., to the plaintiff but that in view of the terms of the appellate Courts order this delivery of possession will be deferred till the disposal of the appeal in the Supreme Court which is said to have been filed; and for recovery of one-half of Rs. 3362-10-0 being the difference in the Corporation Tax paid by the plaintiff and mesne profits or damages for use and occupation at the rate of Rs. 2,500/- per month from 1-3-1953 upto the date of delivery of possession and for costs. I certify for two counsel. Order accordingly. AIR 1956 MADRAS 219 (Vol. 43, C. 70 April)* "Hanumanthiah v. Dy. Commercial T. O." MADRAS HIGH COURT Coram : 1 SOMASUNDARAM, J. ( Single Bench ) P. Hanumanthiah, Petitioner v. The Deputy Commercial Tax Officer, Moore Market Division, Madras, Respondent. Criminal Revn. Cases Nos. 335 and 336 of 1955 and Cr. Revn. Petns. Nos. 320 and 321 of 1955, D/- 4 -8 -1955. Madras General Sales Tax Act (9 of 1939), S.15(b) - SALES TAX - Sales Tax - Prosecution of firm. Under the Act, if a firm is assessed to tax, it is the firm that must be proceeded against and prosecuted for non-payment of tax. Revn. Petns. Nos. 320 and 321 of 1955, D/- 4 -8 -1955. Madras General Sales Tax Act (9 of 1939), S.15(b) - SALES TAX - Sales Tax - Prosecution of firm. Under the Act, if a firm is assessed to tax, it is the firm that must be proceeded against and prosecuted for non-payment of tax. If the firm as such is prosecuted under its name and style, then it does not matter whether all the partners are before the court or only some of them are before the Court. But, not to stand on mere technicalities, if the entire partners have been brought on record, there is no objection to treating the entire partners as partners of the firm and firm being represented by its partners. But in such a case if in the course of the prosecution, the case against one of the partners of the firm, is separated, then it ceases to be a prosecution against the firm and if the firm is not prosecuted the conviction cannot stand against the individual partner alone. AIR 1953 Mad 332 and AIR 1951 Mad 886 (1), Rel. on. (Para 2) Cases Referred : Courtwise Chronological Paras (A) (V 40) AIR 1953 Mad 332 : 1952 Mad WN Cr 187 : 1953 Cri LJ 604 2 (B) (V 38) AIR 1951 Mad 886 (1) : 1951-1 Mad LJ 511 : 52 Cri LJ 1040 2 J.S. Ullal for T.S. Krishnamurthi Aiyar, for Petitioner; State Prosecutor, for the State. Judgement ORDER :- These are revision petitions against the conviction of the petitioner by the Fifth Presidency Magistrate, Madras, in C.T. Nos. 92 and 93 of 1955. 2. The petitioner, one P. Hanumantiah has been prosecuted for failure to pay the balance of sales-tax for 1950-1951 and 1951-1952. That he was a partner along with one A.P. Subramania Mudaliar and that they were doing business under the name and style of Messrs. P.H.A.P. Subramania Mudaliar and Co. is not disputed. The complaints have been undoubtedly laid against the petitioner and A.P. Subramania Mudaliar for offences under S. 15(b), Madras General Sales-tax Act, 1939. If both of them have been prosecuted, as has been pointed in my decision in In re, Behara Latcharma Patnaick, AIR 1953 Mad 332 (A), then it can well be contended that the firm was being prosecuted. The complaints have been undoubtedly laid against the petitioner and A.P. Subramania Mudaliar for offences under S. 15(b), Madras General Sales-tax Act, 1939. If both of them have been prosecuted, as has been pointed in my decision in In re, Behara Latcharma Patnaick, AIR 1953 Mad 332 (A), then it can well be contended that the firm was being prosecuted. Under the Act, if a firm is assessed to tax, it is the firm that must be proceeded against and prosecuted for non-payment of tax. It has been made quite clear by the decision of Subba Rao, J. in the - Public Prosecutor v. K. Jacob Nadar. AIR 1951 Mad 886 (1) (B), that for the purpose of assessment "the firm, is treated as one entity and that in default of payment pursuant to the notice, the firm is liable to be prosecuted. It is true that under R. 19, Madras General Sales-tax Rules, if a dealer or licensee enters into a partnership with regard to his business, he shall report the fact to the assessing authority within thirty days of his entering into such a partnership and that the dealer or licensee and the partner shall jointly and severally be responsible for the payment of the tax leviable under the Act. But that rule does not override the provisions of the Act which enable the authorities concerned to deal with the firm as one entity for the purpose of assessment and prosecution." In these cases what happened was, after the complaints were laid against the two partners, either on account of absence or some other reason, one of the accused, viz., the second accused at the time of the complaints, was separated. In short, each case was split up into two and the petitioner alone was proceeded against. It has already been held that in case a firm has to be assessed for non-payment it is the first that must be prosecuted, it may consist of two or more partners, in which case all of them may be proceeded against by bringing them on record as accused, in which case, ad already pointed out, it may be contended that since the firm consists of these partners, it is the firm that is being prosecuted. Strictly speaking, when a firm is being prosecuted, it is against the name of the firm that the prosecution must lie and not merely against the partners as such. But not to stand on mere technicalities, if the entire partners had been brought on record, there is no objection to treating the entire partners as partners of the firm and firm being represented by its partners. Then it is the firm that is deemed to be prosecuted as all the partners are before the court. But, if in the course of the prosecution, the case against one of the partners of the firm is separated, then it ceases to be a prosecution against the firm, as the firm than collapses by one of the partners being proceeded against separately, unless it is specifically stated in the complaint that the prosecution is against the firm as such, and the name of the firm also is mentioned therein. If the firm as such is prosecuted under its name and style, then it does not matter whether all the partners are before the court or only some of them are before the court. What happened here is that the second accused, against whom also the original complaints were laid, the cases against him alone were separated in the course of the trial, and the cases against him having been split up the cases against the petitioner alone cease to be against the firm as such, and if the firm is not prosecuted, it has been held that the conviction cannot stand against the individual partner alone. It is true that the petitioner has admitted in his statement that he and Subramania Mudaliar were partners of the firm and that he failed to pay the balance. But his admission has no legal force inasmuch as the prosecutions cannot be laid against him alone and the trial cannot be proceeded against the petitioner alone individually. I am, therefore, reluctantly compelled to set aside the convictions and sentences on the ground, that the prosecutions have not been against the firm as such and that, therefore, they must fail. 3. In the end, the convictions and sentences are set aside and the accused acquitted. The fines, if paid, will be refunded. Convictions set aside.