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Nirmalendu Basu and ors. Vs. Sm. Nilima Chatterjee - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberSecond Appeal No. 1609 of 1966
Judge
Reported inAIR1975Cal418
ActsTransfer of Property Act, 1882 - Section 108
AppellantNirmalendu Basu and ors.
RespondentSm. Nilima Chatterjee
Appellant AdvocateDilip Kumar Banerjee, Adv.
Respondent AdvocateMadhusudan Banerjee, Adv.
DispositionAppeal allowed
Cases ReferredMerwanji Mancherji Cama v. Syed Sirdar Ali Khan
Excerpt:
- r. bhattacharya, j. 1. this appeal has been directed against the judgment and the decree passed by an additional district judge, howrah in tide appeal no. 495 of 1965 setting aside the dismissal of the original suit by a munsif at howrah in title suit no. 61 of 1963. the appellants are the successors-in -interest of the original defendant duly substituted during the appellate stage. 2. the respondent before this court nilima chatterjee started the original suit for eviction and for mesne profits again st the defendant nandial bose, a tenant of hers in respect of the suit premises. the plaintiff purchased the suit property from her vendor under whom nandalal bose was a tenant in respect of the suit properties at a monthly rental of rs. 21/- payable according to english calendar month......
Judgment:

R. Bhattacharya, J.

1. This appeal has been directed against the judgment and the decree passed by an Additional District Judge, Howrah in Tide Appeal No. 495 of 1965 setting aside the dismissal of the original suit by a Munsif at Howrah in Title Suit No. 61 of 1963. The appellants are the successors-in -interest of the original defendant duly substituted during the appellate stage.

2. The respondent before this Court Nilima Chatterjee started the original suit for eviction and for mesne profits again st the defendant Nandial Bose, a tenant of hers in respect of the suit premises. The plaintiff purchased the suit property from her vendor under whom Nandalal Bose was a tenant in respect of the suit properties at a monthly rental of Rs. 21/- payable according to English Calendar month. During the time of the plaintiff's vendor, the defendant became a defaulter in payment of rent from the month of May, 1961 onwards. After purchase in December, 1962, the plaintiff served a notice upon the defendant to quit on the expiry of the month of February, 1963. The ground of eviction was the default in payment of rent on the part of the defendant-tenant from May, 1961 till the end of February, 1963. The defendant appeared and filed a written statement denying all material allegations. In particular, the defence was that the notice to quit was invalid and insufficient as the entire premises under the tenancy was not described in the notice. It has also been pleaded that as the defendant was dispossessed from the first floor of the premises under threat of criminal prosecution and coercion by the vendor of the plaintiff with the help of the Howrah Municipality, the landlady is not at all entitled to any rent unless the defendant is put into possession of the major portion of the suit premises from which the tenant has been dispossessed. The defendant has characterised the dispossession of the tenant from the portion of the suit premises as a mala fide action. According to the defendant, the suit is liable to be dismissed.

3. The learned trial court on con-sideration of the evidence found that the defendant had to vacate the first floor rooms of the premises under the tenancy as the said room became ruinous and precarious and were in urgent need of repair. It has also been found by the learned Munsif that the rooms on the first floor have not yet been repaired and restored to the defendant. The learned trial court has further found that the arrears of rent during the regime of the plaintiff's vender cannot be made use of by the plaintiff. The findings of the trial court are that the defendant was not a defaulter and that the suit is bad for partial eviction because the entire premises under tenancy has not been included in the suit. At the dismissal of the suit by the trial court, an appeal was taken by the plaintiff which was ultimately disposed of by the Additional District Judge, Howrah. According to the first appellate court below, the evidence on record has proved that the entire tenancy has been included in the suit and that the suit was not bad for partial eviction. On the question of default, the learned Additional District Judge on consideration of several decisions has come to the finding that the plaintiff will be entitled to get the benefit of default made by the tenant in respect of payment of rents during the time of her vendor, the previous landlady of the defendant. On the question of dispossession of the tenant by the previous landlady, the learned Judge has come to the conclusion that there is evidence on record that the first floor rooms required repairs and that it has been established that the respondent does not possess those first floor rooms. According to the learned Judge below, when the tenant became unable to possess a portion of the premises under tenancy, as the same became unfit for use for want of repairs, he is not entitled to suspension or abatement of rent. On the above findings, the court below found that the defendant was a defaulter in payment of rent from May, 1961 onwards. The appeal was, therefore, allowed and the suit was decreed. Against this decision of the appellate court below, the instant appeal has been filed,

4. I have heard Mr. Dilip Kumar Banerjee, appearing on behalf of the appellants and also Mr. Madhusudan Banerjee, appearing on behalf of the respondent.

5. From the side of the appellants, it has been first contended that the learned Additional District Judge below erred in law to hold that the tenant was not entitled to suspension of rent overlooking the material facts and circumstances and also misreading the evidence on record. The decision as to default arrived at in the court below was illegal and without evidence. Secondly, it has been argued that the notice served upon the defendant was insufficient and illegal according to the evidence. In this connexion it has been submitted that the plaintiff's suit should have been held bad for partial eviction and for non-joinder of essential parties.

6. The most important point to be decided in this appeal is whether in the instant case the defendant-tenant was entitled to the suspension of rent. For this purpose my attention has been drawn to several pieces of evidence which, according to the learned Advocate appearing on behalf of the appellants, are material and were not considered by the appellate court below. In this case it is admitted before me by both the parties that the plaintiff purchased the suit premises from Aukhoy Kumar Mukherjee and Nantubala Devi. There is no dispute that there are rooms on the first floor as well as on the ground floor which were in the occupation of the defendant from the time of the plaintiff's predecessor-in-interest Nantubala. It has been specifically alleged in the written statement that due to the mala fide conduct of the vendor of the plaintiff, there were several litigations and ultimately she succeeded to dispossess the defendant who was forced to vacate the first floor rooms of the suit premises on the threat of criminal prosecution and coercion on the part of the landlady with the help of the municipality and that since then the defendant is deprived of the possession of the major portion of the tenanted house. It is also stated that the said dispossession is high handed action of the landlady and that the landlady or her successors are not entitled to claim any rent for not allowing the defendant to hold the entire premises peacefully. The plaintiff, according to the defendant, is not entitled to claim for rent due to the substantial interference by the landlady with the defendant's peaceful enjoyment of the suit premises. I have already indicated earlier that the learned first appellate court below has come to the finding that the respondents who were the appellants before me did not possess the first floor rooms and that the first floor rooms require repairs. It has also been found that the tenant became unable to possess a portion of the suit premises because the same became unfit for use due to want of repairs. The grievance of the appellants is that the learned court below did not at all consider the material evidence which will support the defendant's claim for suspension of rent for being out of possession due to the mala fide and coercive conduct of the landlords and not for inhabitable condition of the first floor rooms.

7. Let us now consider the evidence on record. Plaintiff herself has not given evidence. Her husband is P. W. 4. He has simply stated that the defendant has not been dispossessed from any portion of the suit premises. In spite of the specific allegation made by the defendant in the written statement about dispossession by the plaintiff's vendor, no attempt has been made to examine the vendor of the plaintiff. As the defendant was indisposed at the time of hearing, his son gave evidence. He is D. W. 3. From his evidence, we get that previously the defendant used to occupy all the rooms of both the floors but when a notice from the Howrah Municipality was received, the first floor was vacated and the defendant started occupying only one room on the ground floor. It has been stated that at the instance of the landlady, the rooms of the first floor were vacated. It has been also stated that the landlady started possessing the said rooms for repairs and that the defendant had not been reinstated in the former position. We also get from the evidence of D. W. 3 that after taking possession of the first floor rooms, the previous landlady kept the said rooms vacant. It has been clearly stated that since May, 1961, the tenant has not been paying rent sometime after the dispossession from the rooms on the first floor. In support of the evidence of D. W. 3, we get evidence of another witness D. W. 2 who says that the defendant occupies only one room on the ground floor of the suit premises and that previously he saw the defendant occupying all the rooms on the ground and the first floors. He has stated that the defendant vacated the first floor at the request of the landlady for the purpose of repairs.

8. In addition to the oral evidence, we have got documentary evidence about which there- is no dispute between the parties. Ext. B is a notice from the Howrah Municipality dated 20-1-1960 served upon the tenant-defendant, Nandalal Bose under Rule 4 (1) of Schedule XVIII of Calcutta Municipal Act of 1923 as extended to the Municipality of Howrah. By this notice the tenant was required within seven days from the service of the notice to secure, repair or demolish the ruinous and dangerous building namely, the suit premises. It was stated in that notice that failing compliance, steps would be taken by the Chairman under Section 510 to execute the works required without prejudice to the right of the Commissioners to take proceedings against the defendant under Section 488 read with Rule 4 (1) of the Schedule XVIII of the Act. Ext. A6 is a letter of the defendant in reply to Ext. B written to the Assistant Engineer. Howrah Municipality on 28-1-1960. On receipt of the threat, the defendant wrote to the Engineer that he had shifted to the ground floor rooms for facilitating repairs of the upper storey rooms. The defendant requested the Engineer so that the landlady might be required to repair the rooms at the earliest convenience. Next, we get another letter from the Howrah Municipality to the defendant regarding the dangerous building. Ext. A5 shows that the defendant was informed by a memo issued on 16-5-1960 that prosecution had already been started for the notice under Rule 4 (1) Schedule XVIII which has already been referred to. On 3-8-1960 the defendant wrote to the Vice-Chairman, Howrah Municipality asking for expeditious repairs of the first floor portion of the suit premises to be made by the landlady as he had been suffering very much for scanty accommodation. The defendant further complained that although he had vacated the first floor portion for repairs, the landlady took no steps in the matter. This letter has been marked Ext. A3. Ext. A2 is a letter written to the previous landlady, Nantubala Devi by the Howrah Municipality and issued on 21-11-1960 requesting her to repair the building at once failing which action would be taken under Section 512 of the Calcutta Municipal Act. Another letter was issued to the previous landlady on 24-3-1961 by the Howrah Municipality asking her to make repairs of the 1st floor walls the staircase and the roof of the first floor within seven days. Ext. C is the judgment in the Non-Judicial Case No. 22 of 1960 in which the previous landlady Nantubala Devi started a proceeding under Section 527 of the Calcutta Municipal Act against the tenant, Nandalal Bose for getting vacant possession of the entire suit premises for the purpose of repairs. This judgment was passed on 8-2-1961. The learned Munsif in this case found that the plea for a direction upon the tenant for vacating the entire suit premises set up by the landlady was not a bona fide one being intended to cause needless inconvenience and harassment to the tenant. The learned Munsif has further noted that the evidence shows that with the intention of affording facilities, Nandalal Bose, the defendant even vacated the rooms on the first floor. This evidence given by D. W. I could not be denied by the son of the previous landlady. But he wanted to say that the entire premises had to be vacated for repairs. The learned appellate court below did not consider the material and important facts and evidence. T have just mentioned to appreciate the defendant's case and thus his decision became erroneous. From the evidence on record and circumstances, it is quite clear that the previous landlady wanted to evict the defendant and for that purpose she deliberately avoided to make essential repairs of the first floor portion of the suit premises which was ruinous and dangerous. The Howrah Municipality in order to avoid serious mishap and collapse of the building served a notice upon the previous landlady-owner and also upon the defendant who was occupying the suit premises as tenant. The defendant was in a precarious position. The landlady did not make repairs of the dangerous building but wanted to keep the defendant in apprehension of danger of loss of human life. Due to the threat of proceedings from the municipality and due to mala fide action of the landlady to put pressure upon the defendant for vacating the suit premises, the defendant vacated the entire first floor portion of the suit premises so that the landlady could effect necessary repairs. The landlady was not satisfied at that. She started proceedings to get possession of the entire suit premises but that attempt has failed as evidenced by Ext. C. Substantial portion of the suit premises though vacated by the defendant, the landlady remained callous and indifferent so that the defendant might be compelled to vacate the suit premises and leave the place. The aim of the landlady could not be fulfilled. The defendant ultimately decided to stop payment of rent and in fact no rent was paid from the month of May, 1961 onwards. The evidence clearly shows that the previous landlady although got possession of the first floor portion of the suit premises, did not attempt to make repairs but ultimately sold the suit premises to the present plaintiff without giving that possession of the first floor portion of the suit premises to the defendant. It is not unreasonable to hold that the present plaintiff purchased the suit properties and took a chance for speculation for getting possession of the entire suit premises by evicting the defendant after starting an ejectment suit on the ground of default in payment of rent. The defendant-tenant in this case being threatened with litigations and proceedings vacated the first floor portion of the suit premises in favour of the previous landlady but the said portion has not been returned to him.

9. Coming to the rule of suspension of rent on account of dispossession by the landlord, we should remember that ordinarily it follows from the principles of natural justice, equity and good conscience. This doctrine of suspension of rent emanates from Clauses (b) and (c) defining rights and liabilities of the lessor as stated in Section 108 of the Transfer of Property Act, 1882. The learned Advocates of both the sides have relied upon several decisions.

10. From the side of the respondent reliance has been placed on the Bench decision of this Court in the case of Surendranath v. Stephen Court Ltd., : AIR1960Cal346 . The facts of that case are different. There the lessor failed to deliver a portion of the leased property to the lessee initially when the lease started. The question arose if the non-delivery of the portion of the property leased out would give any right for suspension of the rent. It was held as follows :

'In the view that we take, we are definitely of opinion that the doctrine of suspension of rent has no application in India in cases of failure of the landlord to give possession to the tenant of a part of the demised premises. Whether the doctrine has application to cases of eviction of the lessee by the lessor from a part of the property leased, we do not decide.'

In all cases we are to see whether suspension of rent is available to the tenant if he is dispossessed from any part of the suit premises. This point has not been decided in the case just mentioned as indicated by the last sentence quoted.

11. The decision in Krishna Chandra Ray v. Surendranath Bandopadhya, 36 Cal WN 72 = (AIR 1932 Cal 385) is by a Division Bench of this Court consisting of Suhrawardy and Graham, JJ., Suhrawardy. J., has spoken about suspension of rent in the following words.

'If a landlord by force or otherwise keeps the tenant out of possession of a portion of a holding, he thereby forces the tenant to accept the tenancy different from what he originally stipulated for. Moreover, it will create a new tenancy against the will of the tenant. I do not think that any Court of justice should encourage the landlord to dispossess his tenant and by keeping him out of possession for some time succeed in creating a different tenancy. There is nothing to prevent the tenant profiting by the tortuous act of the landlord and holding the portion left to him without payment of rent. If the rent is suspended under the law, it is suspended not for a particular period but until the tenant is restored to possession of the original tenure ............'

Graham. J, in his separate judgment also supported the principle of suspension of rent so that there might not be any incentive to landlords to keep their tenants out of possession. According to the principle laid down in this case suspension of rent will be available when the landlord by force or otherwise, meaning resorting to various other means, dispossesses a tenant from any portion of the leased property.

12. The Privy Council in the case of Katyayani Debi v. Uday Kumar Das, 30 Cal WN 1 = (AIR 1925 PC 97) had occasion to deal with the question of suspension of rent. It was a case of land leased out but not any house premises. But that does not matter as we are concerned with the principles of law relating to any immovable property leased out either land or house. Here the Judicial Committee held as follows :

'The doctrine of suspension of payment of rent, where the tenant has not been put in possession of part of the subject leased, has been applied where the rent for the whole land leased treated as an indivisible subject. It has no application to a case where the stipulated rent is so much per acre or bigha.'

13. In this connexion T am to refer to another relevant decision of a Division Bench of this Court in the case of Nilkhantha Pati v. Kshitish Chandra Satpati, reported in : AIR1951Cal338 . The judgment was delivered by R. P. Mukherjee. J. on behalf of the Court agreed to by Lahiri, J. In that case it was found that the tenant was dispossessed by the landlord from a portion of the tenancy. Here on the question of dispossession, it has been stated as below :

'The Court has to consider whether the act of the landlord in dispossessing the tenant was a tortuous or a mala fide one or an inadvertent one. Are the facts such as to attract equitable rules for granting relief?'

The judgment goes on to say--

'The mere fact that the area dispossessed is a small one is not of an overriding importance so as to dissuade the Court from applying the principles of justice, equity and good conscience if the Court finds that the act of the landlord was definitely a tortuous one.'

Lastly the decision asserts in the following language :

'If and when the landlord chooses to put the tenant in possession of the portion from which the latter had been dispossessed, he will be entitled to the rent and not till then.'

14. The decision of the Supreme Court in the case of Surendra Nath v. Stephen Court Ltd. appearing in : [1966]3SCR458 which came up in appeal against the decision already referred to as mentioned in : AIR1960Cal346 should also be noted.

The Supreme Court has said-

'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 Rankin, 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 which he is taking appropriate measures for specific performance of 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 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.'

In the next paragraph of the judgment the Supreme Court made it quite clear about the application of the principle laid down in this particular case quoted below :

'We may make it clear that like the Privy Council. In Ram Lal Dutt's case, 70 Ind. App 18 = (AIR 1948 PC 24). 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 lumpsum 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.'

It is quite clear, therefore, that the principles adopted in the case of Surendranath cannot be applied in the case before me, where the possession of a substantial portion of the tenanted house was taken by the landlady from the tenant-defendant on a plea of repairs but the tenant has not been restored to possession deliberately and compelling him to squeeze in only one room of the ground floor for so many years. Moreover, the present case is not a case, as I have already indicated earlier, where in spite of lease, the lessee has not been given possession of the demised premises as per contract and where other remedies may lie. This is not a case for recovery of rent or compensation from the defendant for the use of occupation of any property. The Supreme Court has not laid down any principles to be followed in a suit for eviction of the lessee by the lessor on account of arrears of rent when the defendant has been dispossessed by the landlord from a substantial part of the tenancy to a great hardship to the latter during the continuance of the tenancy.

15. In view of the decision above on the question of suspension of rent, it cannot be held that only in case of dispossession of the tenant from a portion of tenancy by landlord by physical force, such tenant can get advantage of suspension of rent. The principle is that in a case where the landlord dispossesses his tenant from any portion of the leased property by exercising physical force, coercion, threat or any other trick or means or any fraudulent or mala fide process against the wish or will or natural inclination of the latter or where the landlord connives with or assists others directly or indirectly to dispossess the tenant or does something which is responsible for the dispossession of the tenant from any portion of the tenancy or by his acts or omission leads the tenant to part with possession of any portion of the property in lease against his will or consent or depriving him of the benefit or use of such property, the tenant so dispossessed shall be entitled to suspension of the entire rent if he so likes so long as he does not get back the portion from which he is dispossessed. The question of proportionate reduction of rent in case of partial dispossession by the landlord does not arise on the ground of the rent being fixed in lump or indivisible because the present suit is not one for recovery of arrears of rent or compensation but one for ejectment of the tenant on ground of arrears of rent fixed mutually for a particular premises clearly defined.

16. In the present case before me it has been proved by evidence that the suit premises became ruinous and dangerous. The local municipality gave notice to the owner landlady for repairs or demolition but to no effect. Notice was also served on the tenant in occupation under threat of proceedings. The tenant had to part with possession of the first floor portion of the suit premises so that repairs might be effected. The landlord got possession of the said portion but made no repairs. He started proceeding to get possession of the entire suit premises but it was found that there was no necessity for the tenant to vacate it as he had already vacated the first floor. The previous landlord did not do any repair works though she got possession of the first floor portion. On the other hand she sold the suit premises to the present plaintiff who also did not restore the possession of the first floor to the defendant. On the contrary she started the action in ejectment on ground of non-payment of rent. Clearly both the plaintiff and the previous landlady acted fraudulently to keep the defendant-tenant out of possession of the portion of the suit premises and they are responsible for the continued dispossession of the tenant. Their actions are mala fide and tortuous. The defendant-tenant, therefore, was justified to suspend payment of rent from May, 1961. Coo-sequently the defendant cannot be held as a defaulter in payment of rent. There was no necessity to file any application under Section 17(1) and (2) of the West Bengal Premises Tenancy Act, 1956.

17. Before I leave this point of law, I should mention a decision of a Single Judge of Bombay High Court in the Original Side in the case of Merwanji Mancherji Cama v. Syed Sirdar Ali Khan, (1899) ILR 23 Bom 510. In that case there was a tease for ten years. Before the expiry of the lease the defendant was obliged to vacate the premises under notices from the plague authorities. In this suit for arrears of rent, the defendant pleaded that he was not liable for rent for the period he was out of possession due to the notice of plague authorities as he was interfered with quiet enjoyment of the leased property. Fulton, J. held that when under the provisions of Act III of 1897 it became unlawful for the tenant to occupy the premises in the manner contemplated by the lease, there was no breach of the lessor's contract for quiet enjoyment by the lessee. The learned Judge, therefore, did not relieve the tenant of the rent nor did he pass any decree for damages against the plaintiff as claimed. The facts of the case are different from those appearing in the case before me. In the Bombay case there was no question of dispossession of the tenant by the landlord. There the landlord was in no way interested in the matter of dispossession. Neither did he get the possession of the tenanted premises. In the instant case the landlady got possession of the portion of the suit premises in fraudulent and mala fide manner and the defendant has not been restored to possession thereof quite deliberately in order to compel the defendant to vacate the suit premises in a high handed manner. Without expressing my views on the principle accepted in the Bombay case. I should only say that it is not applicable in the present case.

18. In the view I have taken on the question of suspension of rent as indicated above, I should hold that the appellate court below erred to find that the defendant-tenant was a defaulter in payment of rent. It should have been held that the tenant was not a defaulter and that no case had been made out for his eviction. As the main point as to the question of payment of rent has been decided by me against the plaintiff-respondent, I do not propose to deal with other points raised.

19. In the result, the appeal succeeds. The judgment and the decree of the learned Additional District Judge in the appellate court below are set aside and the dismissal of the suit by the trial court is hereby affirmed. The appellant shall get from the plaintiff respondent the costs in this appeal as well as in the appellate court below.

20. Mr. Banerjee, on behalf of the respondent, verbally prays for leave to file appeal under Letters Patent. It is refused.

21. The cross-objection is not pressed and the same is dismissed without costs.


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