V.S. Deshpande, J.
(1) Landlord Krishan Lal let out his premises to tenant Baslas on an agreed rent of Rs. 250.00. It is not disputed that the tenant was using a telephone which was in the premises at the time of the lease and that the said telephone was removed from the premises by the landlord on 31st July, 1970. The tenant's plea is that the parties agreed that the landlord should charge only Rs. 175.00 as rent and that Rs. 75.00 from the agreed rent were agreed by the landlord to be reduced due to the loss of the telephone facility. The tenant also pleaded that the landlord had deprived him of the use of the rear courtyard and hand pump. The landlord has denied all this. The landlord filed a petition for eviction against the tenant on the ground of misuse of the premises and his own bona fide necessity for residing in them, namely, under clauses (c) and (e) of the proviso to section 14(1) of the Delhi Rent Control Act.
(2) When eviction is claimed by the landlord on any ground other than that referred to in sub-section (1) of section 15 (namely, non-payment of rent) and the tenant contests the claim turn eviction, the Controller (on an application made by the landlord) has to pass an order asking the tenant to pay to the landlord the amount of rent, legally recoverable from the tenant and this order under section 15(2) of the Act has to be in accordance with the provisions of section 15(1) of the Act.
(3) The Controller purposed to pass an order asking the tenant to deposit Rs. 175.00 per month on a prima facie view of the case without finally deciding whether the tenant was in fact entitled to reduce the amount of rent by Rs. 75 on account of the deprivation of the telephone facility and also did not decide the question as to whether the tenant was deprived of any part of the premises by the landlord Both the landlord and the tenant appealed to the Rent Control Tribunal. The landlord contended that rate of the rent should not have been reduced in the order passed under section 15(2) while the tenant contended that no order for payment of rent should have been passed under section 15(2) without deciding his contention that he was deprived of the use of the rear country aid and the hand pump by the landlord. The Rent Control Tribunal dismissed both the appeals. Hence, these second appeals by the tenant (S. A. 0. 102 of 1972) and by the landlord (S.A.O. 140 of 1972) to this Court.
(4) Two questions arise for decision, namely :-
(1)Whether the plea of the tenant that he was deprived of the facilities for using the rear courtyard, hand pump and the telephone, entitles him to the suspension of the whole or abatment of a part of the rent payable by him to the landlord ?
(2)Whether a final finding on the merits of this plea must be given by the Controller before passing an order under section 15(2)
(5) Question No. 1
The Transfer of Property Act as well as the Delhi Rent Control Act, 1958 are silent on the question whether the tenant is entitled to the suspension of the whole of the rent or abatement of a part of the rent payable by him to the landlord if he is deprived by the landlord of a part of the premises or of facilities connected with the use of the premises. It is, thereforee, a question to be decided, in accordance with the principles of 'justice, equity and good conscience'' which have been held to apply in the absence of any statutory or other law in India. On this basis, it was held by the Supreme Court in Surendra Nath Bibra v. Stephen Court Ltd., Air 1966 S.C. 1861, 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.' The following three situations are conceivable, namely :-
(1)The tenant is deprived of the whole of the premises ;
(2)He is deprived of a part of the premises but the remaining part cannot be used without the part of which the tenant has been deprived.
(3)The tenant has been deprived of a part of the premises but the rest of the premises can be used by the tenant without too much difficulty or inconvenience.
IT would be just to say that the whole of rent payable by the tenant to the landlord should be suspended if the tenant is deprived of the whole of the premises. It may also be that even if the tenant is deprived only of the part of the premises, the rest of the premises cannot be enjoyed at all by the tenant. Then also the tenant may be entitled to suspend the whole of the rent. But when the tenant is deprived only of the part of premises and the rest of the premises can be enjoyed by the tenant without too much difficulty or inconvenience, the tenant would be entitled only to reduce the rent proportionately so that the landlord loses that part of the rent which could be ascribed to that part of the premises of which be has deprived the tenant.
(6) The present case would, thereforee, fall in the third category and the tenant would be entitled to claim a proportionate reduction of the amount of rent payable by him to the landlord as per the terms of the tenancy. The tenant cannot claim to suspend the payment of the whole of the rent. As observed by a Division Bench of the Madras High Court in Meenakshi Sundara Nachiar v. S.A. RM. CH. Chidambaram Chetty, 15 Indian cases 711, the duties of the landlord and the tenant are mutual. Just as the landlord cannot claim the whole of the rent if he deprives the tenant a part of the premises, similarly the tenant cannot claim to suspend the payment of the whole of the rent so long as he remains in possession. Just as it is the duty of the landlord to restore the deprived part of the premises to the tenant before being able to claim the whole of the rent, similarly it is the duty of the tenant to surrender the part of the premises still remaining in his occupation before he can claim to be wholly exempted from the liability of paying any rent whatever. I, thereforee, find that in the present case, the tenant would be entitled to claim only a proportionate reduction of the payment of rent and not the suspension of the whole of the rent.
(7) Question No. 1 As a rule, the Controller is bound to pass an order against the tenant for payment of rent either under sub-section (1) or sub section (2) of section 15 before going to decide the merits of the case. But there are certain exceptions to this rule. The requirements of sub-sections (1) and (2) must be fulfillled before orders there under can be passed. One requirement is that the relationship of the landlord and tenant should exist between the parties. If this is denied then the Controller cannot pass an order under section 15(1) or section 15(2) unless he first decides that such a relationship exists between the parties. (Prem Sheel Malhan v. Kumari Shanti Sharma, 2nd (1972) Ii Delhi 155). Another requirement of both sub-sections (1) and (2) is that the amount of rent legally recoverable from the tenant by the landlord should also be known. If there is a dispute about the amount of the arrears of rent legally recoverable, then the Controller must inquire into the dispute and give a finding before he can pass an order either under section 15(1) or under section 15(2). (Kulwant Kaur v. Jiwan Singh 2nd (1972) I Delhi 15).
(8) The question is whether the pleas of the tenant that he is entitled to a proportionate reduction of the rent because of the deprivation of the use of rear courtyard and of the hand pump as also of the telephone is covered by any of the above requirements of sub-section (2) of section 15. Clearly, the rate of rent at which it was last paid means the agreed or the contractual rent. This is not disputed between the parties in the sense in which such rent was a term of the contract. The tenant, however, disputes his liability to pay rent at that rate in view of the deprivation of the use of the rear courtyard and the hand pump. He has also pleaded a compromise with the landlord for reduction of Rs. 75.00 out of the agreed rent for the deprivation of the telephone. thereforee, the rate at which the rent was last paid is not disputed but the amount of rent legally recoverable by the landlord from the tenant within the meaning of sub-section (2) of section 15 is disputed. Just as a plea by the tenant that he has paid a part of the rent claimed by the landlord has to be inquired into by the Controller (M.M- Chawla v. J.S. Sethi, : 2SCR390 ) because the dispute between the parties relates to the amount of the rent legally recoverable from the tenant by the landlord, similarly the plea of the tenant that he is not liable to pay the rent at the agreed rate after the deprivation of the facilities also requires that the Controller must first decide the liability of the tenant to pay the rent and the rate at which it could be payable after the deprivation of the premises before the Controller can pass as order under section 15(2) of the Act. Both these pleas appear to stand on the same footing and no valid distinction can be made between them.
(9) The real distinction is this : The merits of the case, namely, the grounds on which the eviction is claimed under the various clauses of the proviso to section 14(1) have to be decided after an order under section 15(1) or 15(2) is passed. But the order under section 15(1) or 15(2) relates to the payment of rent during the pendency of the proceeding. This order cannot, thereforee, be said to relate to the merits of the case which consist of the grounds for eviction. thereforee, pleas raised by the tenant which are related 10 the payment of rent during the pendency of the eviction proceeding are pleas which do not go to the merits of the case. If such pleas amount to showing that either the tenancy itself or the amount of the rent is disputed by the tenant, then such a dispute has to be decided by the Controller under section 15(1) or section 15(2) before passing an order there under. Of course, when a case falls under section 15(3), the Controller would be entitled to fix an interim rent also which will be payable by the tenant to the lanlord until the standard rent in relation to the premises is fixed, if an application for standard rent is made within the period of limitation, or a finding as to the agreed rent is given by the Controller.
(10) In the present case, thereforee, the Controller was not justified in making a preliminary finding on a prima facie view of the case. The order of the Controller and the Rent Control Tribunal are, thereforee, set aside and the Controller is directed to inquire into the pleas raised by the tenant regarding the deprivation of the telephone, the rear courtyard and the hand pump and decide the same with a view to pass an a order under section 15(2). Both the appeals, namely, S.A.O. 102 and 140 of 1972, are, thereforee, allowed in the above terms without any order as to costs.