Surendra Nath Bibra Vs. Stephen Court
Ltd.  INSC 33 (4 February 1966)
04/02/1966 SIKRI, S.M.
CITATION: 1966 AIR 1361 1966 SCR (3) 458
RF 1972 SC1598 (13) D 1977 SC2002 (6)
Landlord and tenant-Possession of whole of
the premises agreed to not delivered-Tenant's right to suspend payment of
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,  70 I.A.
CIVIL APPELLATE JURISDICTION: Civil 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
N. C. Chatterjee and Sukumar Ghose, for the
Sarjoo Prasad and S. C. Mazumdar, for the
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 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. 
(5) 1. L.R.  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.
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
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.