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PETITIONER: SURENDRA NATH BIBRA

       Vs.

RESPONDENT: STEPHEN COURT LTD.

DATE OF JUDGMENT: 04/02/1966

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. SHAH, J.C. RAMASWAMI, V.

CITATION:  1966 AIR 1361            1966 SCR  (3) 458  CITATOR INFO :  RF         1972 SC1598  (13)  D          1977 SC2002  (6)

ACT: Landlord  and  tenant-Possession of whole  of  the  premises agreed to not delivered-Tenant’s right to suspend payment of entire  rent.

HEADNOTE: The appellant executed a lease for a period of 21 years,  in respect of the respondents flat consisting of 3 bedrooms, at a  monthly  rent of Rs. 350.  As  the  respondent  delivered possession of only 2 bed rooms, the appellant suspended  the payment of rent altogether.  The respondent thereupon  filed a suit for recovery of rent in the Court of Small Causes but it  was  dismissed.  In an application under s.  38  of  the Presidency  Small  Causes Court Act the Full  Bench  of  the Small  Causes  Court decreed the suit, and  the  decree  was confirmed  in the appellant’s revision petition to the  High Court under s. 115 of the Civil Procedure Code and Art.  227 of the Constitution. In appeal to this Court, HELD  : The appellant must pay a proportionate part  of  the rent,  because,  it  would  be  inequitable  to  allow   the respondent,  on the one hand, to recover the full rent  when he  had  not  delivered  possession  of  the  whole  of  the premises, and on the other, to allow the appellant to  enjoy a  substantial  portion  of the  property  of  the  landlord without much inconvenience as a windfall. It  will depend on the circumstances of each case whether  a tenant  would  be entitled to suspend payment  of  the  rent fully  or  whether  he  should be held  liable  to  pay  the proportionate part of the rent. [460 D-F] Ramn  Lal Dutt Sarkar v. Dhirendra Nath Roy, [1943] 70  I.A. 18 applied.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 661 of 1963. Appeal  by special leave from the judgment and  order  dated

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August 17, 1959 of the Calcutta High Court in Civil Rule No. 274 of 1958. N. C. Chatterjee and Sukumar Ghose, for the appellant. Sarjoo Prasad and S. C. Mazumdar, for the respondent. The Judgment of the Court was. delivered by Sikri  J. This appeal by special leave is  directed  against the judgment of the High Court of Calcutta in an application under  s. 115 of the Code of Civil Procedure and under  art. 227  of the Constitution filed by the tenant, Shri  Surendra Nath Bibra, now appellant before us. Stephen  Court  Limited, respondent before  us,  hereinafter referred  to as the plaintiff, filed a suit in the Court  of Small  Causes,  Calcutta,  for the  recovery  of  rent  from September  1956 to November,1956, at the rate of  Rs.  350/- per mensem, and interest, against the appellant, hereinafter referred  to as the defendant, alleging that  the  defendant was a monthly tenant by virtue of a lease dated                             459 April 30, 1956, under the plaintiff, in respect of flat  No. 17 at promises No. 18A, Park Street, known as Stephen  Court in the town of Calcutta, and that the defendant had not paid the rent from September to November, 1956.  The defendant, inter  alia, Pleaded that relying on the representation  and assurance  of the plaintiff that three bed-rooms,  two  bath rooms  etc. would be available to the defendant in flat  No. 17 he executed a lease on April 30, 1956, for a period of 21 years,  but the plaintiff put him in possession only of  two bed-rooms  and  not  three, and according  to  him,  in  the circumstances   he   was  entitled  to  suspend   the   rent altogether. The  Small  Cause Court Judge, Mr. Mandal,  found  that  the defendant  had  not been put into possession of one  of  the three  bed-rooms.   Purporting to follow Katyayani  Debi  v. Udoy Kumar Das (1) and Abhoya Charan Sen v. Hem Chandra  Pal (2)  he  held  that the defendant was  entitled  to  suspend payment- of rent to the plaintiff. The  plaintiff then preferred an application under s. 38  of the Presidency Small Cause Courts Act against the  dismissal of  its  suit.  The Full Bench of the  Small  Causes  Court, following Ram Lal Dutt Sarkar v. Dhirendra Nath.Roy,(3) held that the plaintiff’s claim for arrears of rent must  succeed in  spite of the fact that the landlord had failed  to  give possession of one out of the three bed-rooms of the  demised premises.  The Bench, however, made it clear that the  "non- applicability of the principle of suspension of rent in  the present  suit for recovery of arrears of rent for  a  parti- cular  period  will not necessarily debar  the  tenant  from claiming  other appropriate reliefs against the  failure  of the landlord to put him In possession of the entire  demised premises  by  way  of apportionment  of  rent  or  damages.’ Accordingly, it decreed the suit. The defendant then filed an application under s. 115,  Civil Procedure  Code, and art. 227 of the Constitution.   In  the application the defendant prayed that the suit be dismissed. In the alternative, the defendant alleged that the plaintiff was at best entitled only to a proportionate rent.  The High Court  dismissed  the application and the  defendant  having obtained special leave, the matter is now before us. Mr.   N.  C.  Chatterjee,  the  learned  counsel   for   the defendant,. contends that the decision in Ram Lal Dutt’s (4) case  which the High Court and the Full Bench of  the  Small Causes  Court  had followed was distinguishable  because  in that  case the tenancy was. an agricultural tenancy and  the tenant in that case had raised the point after the lapse  of a number of years.  He says that the doctrine of  suspension

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of rent should be applied to the facts of this case  because the plaintiff had deliberately not given possession (1) 30 C.W.N. (P.C.) 1                  (2) 33 C.W.N. 715. (3)  70 I.A. 18. 460 of  one bed-room.  In the alternative he contends  that  the Fun  Bench  of  the Small Causes Court and  the  High  Court should have made an order for apportionment of rent. We are unable to agree with Mr. Chatterjee that the decision of  the  Privy  Council in Ram Lal Dutt’s (1)  case  can  be distinguished  on the ground urged by him.  It is  no  doubt true   that  the  Privy  Council  was  concerned   with   an agricultural  tenancy  but  the Privy  Council  decided  the appeal  on a matter of principle, the principle  being  that the  doctrine enunciated, in Neak v. Mackenzie (2  )  should not  be  regarded  as a rule of  justice,  equity  and  good conscience   in  India  in  all  circumstances.    It   is interesting to note that the subject-matter of the lease  in Neak v. Mackenzie (2) was a dwelling house and land attached to it, and it was eight acres of the land which was attached to  the  house  that  the  tenant  had  been  kept  out  ,of possession.  Be that as it may, in our opinion, the doctrine laid  down in Neale v. Mackengie (2) is too  inflexible  and cannot  be applied to all cases.  As observed by Sir  George Rankin,  the ,doctrine cannot be justified as  a  dependable rule  to be adhered to notwithstanding hard cases.   On  the one  hand  it does not seem ,equitable that when  a  tenant enjoys  a  substantial  portion  of  the  property  of   the landlord,  leased  to him, without  much  inconvenience,  he should not pay any compensation for the use of the  property ,  in  other  words, to borrow the language  of  Sir  George Ranking that he should enjoy a windfall.  On the other  hand it  is unfair that if a tenant is not given possession of  a substantial  portion of the property, he should be asked  to pay any compensation for the use of the property while he is taking appropriate measures for specific performance of  the contract.   It  seems  to  us that it  will  depend  on  the circumstances  of  each  case, whether  a  tenant  would  be entitled to suspend payment of the rent or whether he should be  held liable to pay proportionate part of the  rent.   On the facts of this case we are of the opinion that the tenant is  not entitled to suspend the payment of rent but he  must pay a proportionate part of the rent. We may make it clear that like the Privy Council in Ram  Lal Dutt’s  (1)  case we are not deciding that the  doctrine  of suspension ,of rent should or should not "be applied at  all to  cases  of eviction ,of the lessee by the lessor  from  a part of the land, and if so, whether it is limited to  rents reserved  as  a  lump  sum, and whether it  is  a  rigid  or discretionary  rule-these  questions will call  for  careful review when they are presented by the facts of a  particular case." In view of this we need not consider cases like Hakim Sardar Bahadur v. Parkash Singh (3); Jatindra Kumar Seal  v. Raimohan  Bai  (4); and Nilkantha Pati v.  Kshitish  Chandra Satati.(5) (1) 70 I.A. 18.                  (2) 150 E.R. 635. (3) A.I.R. (1962) Pun. 385.      (4) A.I.R. [1961] An. 52. (5)  1. L.R. [1952] 1 Cal. 59. 461 The High Court rejected the plea of apportionment of rent on the ground that the defendant had not taken a specific  plea to this effect in the written statement.  The second  ground given by the High Court was that it would be unreasonable to thrust  a relief on the defendant unless he himself  chooses one  or more of the alternative reliefs available  to  him.

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Further, no prayer was 3 made before the High Court to amend the written statement to include this relief. In  our  opinion, the Full Bench of the Small  Causes  Court should  have  remanded  the  case  for  calculation  of  the proportionate  rent  for the portion of the  premises  taken possession of by the defendant.  In our view, the High Court has taken too technical a view.  It would be inequitable  to allow the plaintiff to recover the full rent when he has not delivered  possession  of  the  whole  of  the  premises  in question. Mr.  Sarjoo Prasad, the learned counsel for  the  plaintiff, urges that the defendant had paid rent voluntarily for  four months--this  fact also is relied on by the  High  Court-and therefore  we should not remand the case.  But we find  that three months’ rent was paid in advance as security  deposit, and hence there is no force in the contention. Mr.  Sarjoo  Prasad  finally contends that  as  this  appeal arises  from an application under s. 115 of Civil  Procedure Code  and  art.  227  of the  Constitution,  we  should  not interfere  with the decision of the Full Bench of the  Small Causes  Court even though it be erroneous.  A similar  point was raised before the High Court and although the High Court found  some substance in the point it chose to go  into  the merits  of the case and not dismiss the application on  this ground.  It must be remembered that the application was also under art. 227 of the Constitution, and although  ordinarily art. 227 should be used sparingly, on the facts of this case we  are  satisfied  that the High Court  was  right  in  not throwing out the application on this ground. In the result the appeal succeeds.  We set aside the  orders of the- High Court and of the Full Bench of the Small Causes Court  and of the Judge Small Causes Court, and  remand  the case  to  the  Court of Small Causes,  Calcutta,  with’  the direction  that it will dispose of the suit in the light  of this  judgment.   The parties would be at  liberty  to  lead evidence before the Court of Small Causes on the question of apportionment  of  rent.  In the circumstances of  the  case there would be no order as to costs. Appeal allowed. 462