Appeal No 661 of 1963
Appeal by special leave from the judgment and order dated 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 section C Mazumdar for the respondent
delivered by Sikri J
This appeal by special leave is directed against the judgment of the High Court of Calcutta in an application under section 115 of the Code of Civil Procedure and under article 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 November1956 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 vs Udoy Kumar Das 1 and Abhoya Charan Sen vs 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 section 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 vs Dhirendra Nath
Roy3 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 section 115 Civil Procedure Code and article 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 of rent should be applied to the facts of this case because the plaintiff had deliberately not given possession 1 30 CWN PC 1 2 3 70 IA 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 vs 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 vs 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 vs 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 vs Parkash Singh 3 Jatindra Kumar Seal vs Raimohan Bai 4 and Nilkantha Pati vs Kshitish Chandra Satati5 1 70 IA 18
2  3 AIR 1962 Pun
4 AIR 1961 An 52
5 1 461 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
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 section 115 of Civil Procedure Code and article 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 article 227 of the Constitution and although ordinarily article 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


Summary:
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 section 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 section 115 of the Civil Procedure Code and article 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 vs Dhirendra Nath Roy 1943 70 IA 18 applied