Case Note & Summary
The dispute arose from a lease of flat No. 17 at Stephen Court, 18A Park Street, Calcutta. The appellant tenant executed a 21-year lease on 30 April 1956 for a flat consisting of three bedrooms at a monthly rent of Rs. 350. The respondent landlord delivered possession of only two bedrooms, not the third. The tenant suspended payment of rent entirely. The landlord filed a suit in the Court of Small Causes, Calcutta for recovery of rent from September 1956 to November 1956 at Rs.350 per month with interest. The tenant pleaded that relying on the landlord's representation that three bedrooms would be available, he executed the lease, but was given only two; he claimed entitlement to suspend rent altogether. The Small Cause Court Judge found that the tenant had not been put in possession of one of the three bedrooms and, following Katyayani Debi v. Udoy Kumar Das and Abhoya Charan Sen v. Hem Chandra Pal, held the tenant entitled to suspend payment of rent and dismissed the suit. The landlord then filed an application under Section 38 of the Presidency Small Cause Courts Act. The Full Bench of the Small Causes Court, following the Privy Council decision in Ram Lal Dutt Sarkar v. Dhirendra Nath Roy, held that the landlord's claim for arrears of rent must succeed despite the failure to give possession of one bedroom. It decreed the suit but clarified that the tenant could claim other reliefs like apportionment or damages. The tenant filed a revision under Section 115 CPC and Article 227 of the Constitution before the Calcutta High Court, praying for dismissal of the suit or alternatively for proportionate rent. The High Court dismissed the application, holding that the tenant had not taken a specific plea of apportionment in the written statement and it would be unreasonable to thrust a relief upon him. The Supreme Court, on special leave, considered whether the doctrine of suspension of rent applied and whether apportionment should have been ordered. The appellant argued that Ram Lal Dutt was distinguishable as an agricultural tenancy and that the landlord had deliberately withheld one bedroom, so suspension should apply; alternatively apportionment should be ordered. The respondent argued that rent had been paid voluntarily for four months (though three months was advance security deposit) and that the court should not interfere under revisional jurisdiction. The Court held that the doctrine in Neale v. Mackenzie was too inflexible and could not be applied to all cases. It agreed with the Privy Council that the doctrine could not be justified as a dependable rule. It reasoned that it was inequitable for a tenant enjoying a substantial portion of the property to pay no compensation, and equally unfair to ask a tenant to pay compensation when he was not given possession of a substantial portion and was taking appropriate measures. Therefore, on the facts, the tenant was not entitled to suspend the entire rent but had to pay a proportionate part. The Court rejected the High Court's technical rejection of apportionment and remanded the case to the Court of Small Causes with directions to dispose of the suit in light of the judgment, allowing parties to lead evidence on apportionment. The appeal was allowed, orders set aside, and no order as to costs.
Headnote
A) Landlord and Tenant - Suspension of Rent - Partial Possession - Doctrine of suspension of rent is not a rigid rule of justice, equity and good conscience in India in all circumstances - Presidency Small Cause Courts Act, 1882, Section 38 - The tenant executed a 21-year lease for a flat with three bedrooms at Rs. 350 per month but was given possession of only two bedrooms. The tenant suspended entire rent; the landlord sued for arrears. The Court held that the doctrine in Neale v. Mackenzie was too inflexible and that it depended on circumstances whether a tenant could suspend rent fully or must pay proportionate part. On facts, tenant was not entitled to suspend rent entirely but had to pay proportionate rent. (Paras 1-4) B) Landlord and Tenant - Apportionment of Rent - Proportionate Rent - Equitable relief where landlord delivers partial possession - Code of Civil Procedure, 1908, Section 115; Constitution of India, Article 227 - The High Court rejected the plea of apportionment on the ground that the tenant had not taken a specific plea and had not prayed for amendment. The Supreme Court held this was too technical and inequitable to allow full rent when the whole premises were not delivered. The case was remanded to the Small Causes Court to calculate proportionate rent for the portion occupied, with liberty to lead evidence. (Paras 3-4) C) Civil Procedure - Revisional Jurisdiction - Scope of interference under Section 115 CPC and Article 227 - Code of Civil Procedure, 1908, Section 115; Constitution of India, Article 227 - The respondent argued that the Supreme Court should not interfere with the Full Bench decision in a revisional application. The Court noted that the High Court had considered merits and that Article 227 should be used sparingly but was satisfied that the High Court was right in not dismissing the application on that ground. The Supreme Court set aside the orders and remanded. (Para 4)
Issue of Consideration
Whether a tenant is entitled to suspend payment of the entire rent when the landlord fails to deliver possession of a part of the leased premises; and whether the court should direct apportionment of rent instead of full rent or full suspension.
Final Decision
The appeal was allowed. The Court set aside the orders of the High Court, the Full Bench of the Small Causes Court, and the Judge of the Small Causes Court. The case was remanded to the Court of Small Causes, Calcutta, with the direction to dispose of the suit in light of the judgment. The parties were at liberty to lead evidence on the question of apportionment of rent. No order as to costs was made.
Law Points
- Legal points not extracted
- The doctrine of suspension of rent is not an inflexible rule of justice
- equity and good conscience in India
- whether a tenant can suspend rent entirely or must pay proportionate rent depends on the circumstances of each case
- a tenant enjoying a substantial portion of the premises without much inconvenience must pay compensation for its use
- it is inequitable to allow a landlord to recover full rent when he has not delivered possession of the whole premises
- appellate courts may direct apportionment of rent even if not specifically pleaded when required by equity.
