Case ID: 2162

Judgment:
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 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 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. 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 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 C.W.N. (P.C.) 1 (2) (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 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 Satati.(5) (1) 70 I.A. 18. (2) ; (3) A.I.R. (1962) Pun. (4) A.I.R. [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 I.A. 18 applied.