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Surendra Nath Bibra Vs. Stephen Court Ltd. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 274 of 1958
Judge
Reported inAIR1960Cal346,63CWN923
ActsCode of Civil Procedure (CPC) , 1908 - Section 115 - Order 8, Rule 2
AppellantSurendra Nath Bibra
RespondentStephen Court Ltd.
Appellant AdvocateShyama Charan Mitter, Adv.
Respondent AdvocateA.C. Gupta and ;Noni Coomar Chakravarty, Advs.
Cases ReferredNilkantha Pati v. Kshitish Chandra Satpati
Excerpt:
- banerjee, j.1. the petitioner is admittedly a lessee under the opposite party company, in respect of flat no. 17, in premises no. 18a, park street, calcutta. the premises is also known as 'stephen court',2. the lease is evidenced by a registered instrument (ex. 1), bearing the date april 30, 1956. flat no. 17, according to the description gave in the said instrument of lease, consisted of three bed rooms, two bath rooms, one big verandah, one passage room, one pantry, one cooking room, one drawing room and one servant's room in the servants' quarter, in the first floor. the lease was for a period of twenty-one years and the contractual rent was rs. 350/- per month.3. on december 17, 1956, the plaintiff opposite party instituted a suit in the court of small causes calcutta, being suit no......
Judgment:

Banerjee, J.

1. The petitioner is admittedly a lessee under the opposite party company, in respect of flat No. 17, in premises No. 18A, Park Street, Calcutta. The premises is also known as 'Stephen Court',

2. The lease is evidenced by a registered instrument (Ex. 1), bearing the date April 30, 1956. Flat No. 17, according to the description gave in the said instrument of lease, consisted of three bed rooms, two bath rooms, one big verandah, one passage room, one pantry, one cooking room, one drawing room and one servant's room in the servants' quarter, in the first floor. The lease was for a period of twenty-one years and the contractual rent was Rs. 350/- per month.

3. On December 17, 1956, the plaintiff opposite party instituted a suit in the court of Small Causes Calcutta, being Suit No. 5349 of 1956, against the defendant petitioner, claiming arrears of rent for the months of September to November, 3956. The claim was laid at Rs. 1050/- for arrears due and Rs. 21/- for interest on arrears, total Rs. 1071/-.

4. The defendant petitioner filed written statement and contested the claim. His defence in substance was that he had executed the deed of lease, relying on the representation and assurance by the plaintiff that three bed rooms would be available to him in Flat No. 17. The deed of lease also contained provisions to that effect. The plaintiff, however, gave possession to the defendant of only two bed rooms and neglected to deliver possession of the third bed room in Flat No. 17, which room was made part of Flat No. 17A. In the circumstances aforesaid, the defendant contended that he was entitled totally to suspend paying the rent and as such denied the liability for payment of the arrears claimed.

5. The trial Court upheld the contention of the defendant and dismissed the plaintiffs claim, The plaintiff thereupon applied for a new trial under the provisions of Section 38 of the Presidency Small Cause Courts Act. At the new trial, the finding of the trial Court that the defendant had not been put in possession of one of the three bed rooms, let out to him, was upheld but nevertheless relying on a decision of the Privy Council reported in Ramlal Dutt v. Dhirendra Nath, it was held that in the circumstances of the case there was no scope for the application of the doctrine of suspension of rent. The judgment of the trial court was set aside at the new trial and the plaintiffs claim was decreed.

6. This Rule was issued at the instance of the defendant against the decree passed at the new trial.

7. Mr. Shyama Charan Mitter, learned Advocate for the defendant petitioner, contended, in the first place, that the facts in Ramlal Dutt's case were so peculiar and the claim for suspension of rent was made at so late a stage that the observations in that case, against the application of the doctrine of suspension of rent, should be taken to have been made in the context of that case. As an alternative to the first branch of his argument, Mr. Mitter contended that the said observations related and were opposite to agrarian tenancies, covering considerable areas, and were never meant to apply to tenancies in a metropolis, of the type now in dispute. Mr. Mitter contended, in the next place, that in any event the plaintiffs claim should not have been decreed in full. There should have been an order made for apportionment and reduction or abatement of the rent, proportionate to area which the defendant had not been given possession and the rent as reduced or abated should have been decreed.

8. In order to appreciate the argument of Mr. Mitter, it is necessary, in the first place, to examine the real nature of the English Common Law doctrine of suspension of rent and how and to what extent this doctrine was imported to Indian Law.

9. Foa, in his treatise on the 'General Law of Landlords and Tenants', made the following observation on the doctrine of suspension of rent:--

'Eviction from part of demised premises: As against the landlord himself, an eviction from part of the demised premises is an eviction from the whole; it will consequently entail a suspension of the entire rent while the eviction lasts, and this, as it seems, whether the tenant remains in possession of the residue or not. The tenancy, however is not thereby put an end to, nor is the tenant discharged -- sc. as regards that residue from the performance of his covenants other than the payment of the rent; and even the tenant's relinquishing the possession and the landlord's taking it will not have that effect unless the tenancy be actually dissolved. (Article 252).

Failure to deliver possession of part of demised premises: The effect of the tenant's being unable through the default of his landlord to obtain possession of all the premises demised to him is legally the same as regards the obligation to pay rent (but not necessarily in other respects), as where he is evicted by him, provided the instrument of demise is incapable of passing any interest at all in the portion affected.' (Article 253).

10. The case of Neale v. Mackenzie, (1836) 1 M and W 747 is one of the leading cases on the aforesaid doctrine, with particular reference to the class of cases where the landlord failed to deliver possession of part of the demised premises to the tenant. In that case a lessee of one hundred acres of land accepted the lease and entered upon the land. Upon his entry he found eight acres in the possession of a person entitled under a prior lease from the lessor, and that person kept possession of the eight acres, until half a year's rent became due, and excluded the lessee from the enjoyment during that period, the lessee continuing in possession of the remainder. It appeared from the date of and averments in the pleadings that the prior lease was for a term extending beyond the duration of the latter lease. For non-payment of rent by the lessee, the lessor exercised his right to distrain, whereupon the lessee brought an action of trespass against the lessor for entering the formers dwelling house and taking his goods. There being no doubt that if the defendant had a right to distrain at all the plaintiff's claim was bound to fail, there arose the question whether the rent, under the circumstances aforesaid, was apportionable or not and whether the distress was justifiable. The Court of Exchequer dismissed the plaintiff's claim. A writ of error having been brought on the judgment of the Court of Exchequer, Lord Denman C. J. observed as hereinbelow quoted:--

'The rent is reserved in respect of all the land professed to be demised, and to be issuing out of the whole and every part thereof; and as the plaintiff, as to a portion of the land comprised in the demise (which might be great or small, as far as the principle is concerned), has taken no interest, and had no enjoyment, and is not bound by any estoppel, we are of opinion that the distress made by the defendant is not justifiable, either in respect to the whole rent reserved or any portion of it.'

11. Such is the conception of the doctrine of suspension of rent as it prevails in England. The doctrine was adopted in India, not by any statute law hut was imported and accented, at one time, as part of the Indian Law by preponderance of judicial opinion. A historical review of how the doctrine of suspension of rent came to be regarded as part of the law of this land (prior to 1942 when the judgment in Ramlal Dutt's case was delivered) is to be found in the judgment of Jack and D. N. Mitter JJ, in a case reported in : AIR1929Cal568 , Abhoya Charan v. Hem Chandra and we quote below an extract from the said judgment:--

'So far back as the year 1869 in the case of Gopanund Jha v. Lalla Gobind Pershad, 12 Suth WR 109 Sir Barnes Peacock, C. J. referred to the following statement of the law in this behalf of Bacon's Abridgement, Title Rent (M): 'Where a lessor enters forcibly into part of the land, there arc variety of opinions whether the entire rent shall not be suspended during the continuance of such tortuous entry and it seems to be the better opinion and the settled Law at this day that the tenant is discharged from the payment of the whole rent till he be restored to the whole possession, that no man may be encouraged to injure or disturb his tenant in his possession whom by the policy of the law he ought to protect and defend.' This principle was followed uniformly till the decision of the case of Dhunput Singh v. Mahomed Kazim, ILR 24 Cal 296. In that case it was stated by the learned Judges that the principle to be gathered from the earlier cases was that, even if the landlord dispossessed the tenant from a portion of the demised premises, there should be no apportionment of the rent -- the whole rent being equally chargeable on every part of the land demised. This principle was given a further extension in the case of Harro Kumari Choudhrani v. Puma Chandra Sarbogya, ILR 28 Cal 188, where Sir Francis Maclean, C. J. and Mr. Justice Banerjee applied the principle to a case where the tenure was held under a lease which reserved the rent at a certain rate per Bigha. The learned Chief Justice thought this conclusion was justified on the principle laid down in the English and Indian cases referred to in the case of ILR 24 Cal 296. This decision was followed by Mr. Justice Asutosh Mookerjee and Mr. Justice Carnduff in the case of Surendra Nath Guha v. Kalikanta Seromani Kabyatirtha, 14 Cal WN ccvii. It must be said, however, in view of the decision in Katyayani Debi v. Udoy Kumar Das in which their Lordships of the Judicial Committee said that the principle could not be extended to a case where the rent was paid at so much per Bigha that this decision of Maclean, C. J. and Banerjee, J., in the case of ILR 28 Cal 188 cannot now be regarded as good law. For the first time, it appears to me that a dissenting note was struck in the case of Annada Prosad Mukhopadhya v. Mathura Nath Nag Mazumdar, 13 Cal WN 702 in which Mr. Justice Chitty questioned as to how far the technicalities to be found in the English Law should be allowed to affect the relationship of landlord and tenant in this country. Even after this decision, the course of authority has been in favour of the view that there should be an entire suspension of rent in case of dispossession by landlord from the demised premises held under a lump rent. In 1919 in the case of Manindra Chandra Nandy v. Narendra Chandra Lahiri, ILR 46 Cal 956: (AIR 1919 Cal 379) Mr. Justice Fletcher with whom Mr. Justice Cuming concurred held, following the decision in (1836) 1 M and W 747: 46 R. R. 478 that 'where the landlord having let out a portion of land to an earlier lessee lets it out again to a subsequent lessee and fails to deliver to the subsequent lessee possession of the entire land leased to him, the entire rent is suspended'. Mr. Justice Fleteher pointed out in that case that the decision in (1836) 1 M and W 747; 46 R. R. 478 had always been considered as good law; and, with reference to the argument that the decision of the English Courts should not be applied to the system of law in this country, the learned Judge said this: 'But the rule that the rent is suspended on account of the dispossession of the tenant by the landlord from a portion of the holding has been recognised in a number of cases in this Court and, in my opinion, it is not open to question now'. It was in this state of the authorities that the matter came up for consideration before their Lordships of the Judicial Committee in the case of to which reference has already been made and Lord Salvesen in delivering the judgment of their Lordships said: 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 was a lump rent for the whole land leased treated as an indivisible subject. It seems to me that these observations recognise the rule laid down by the Indian decisions that where the rent is fixed in a lump there would be suspension of rent on the ground of dispossession of the tenant by the landlord from a part of the demised premises. In the case of Sushil Kumar Biswas v. Rajani Kanta Chakrabutty : AIR1927Cal737 Mr. Justice Bepin Behari Ghose and Mr. Justice Roy expressed the opinion that these observations ot their Lordships of the Judicial Committee were no authority for the proposition that there should not be any apportionment in every case of dispossession by the landlord of the tenant from a part of the demised premises where the rent was a lump rental. With great respect to these learned Judges, I should say that it is difficult to read the decision of the Judicial Committee in the way these learned Judges seem to have read it. It appears to me that there would be no point in their Lordships of the Judicial Committee referring to the law in this behalf unless they intended to lay down that that was a view from which they did not dissent, even if they did not actually approve the rule. Thus it seems to me that the Privy Council was really laying down the rule that there is to be a distinction between the two classes of cases and that, in the case of lump rental, the rule of suspension should be applied and, in the case where the rent is so much per biga, the rule has no application. It is to be noticed also that the observations made by B. B. Ghose and Roy JJ., in the case of : AIR1927Cal737 were not necessary for the decision of that case; for, in that case, the rental was a rental of so much per Bigha and observations made therein are obiter dicta and cannot prevail against the concurrent decisions in a large number of cases beginning with the case decided by Peacock, C. J. in 1869. It is also to be noticed that, in an earlier case Mr. Justice Bepin Behari Ghose said this: 'It is true that the rule of suspension of rent on account of eviction by the landlord of the tenant from a portion of the demised premises has been adopted in this Court in a series of cases and it is too late to question the adoption of that rule in our Court now See Biseswar Sarkar v. Kali Charan Ash, 44 Cal LJ 27: (AIR 1926 Cal 908) observations difficult to reconcile with the obiter dicta of the learned Judge in : AIR1927Cal737 . The later authorities to which reference may be made are the decisions of Page and Mallik, JJ. in the case of Dhirendra Nath v. Bhabatarni Debi : AIR1929Cal395 where the learned Judges were in favour of the view of total suspension of rent in cases of dispossession from part of tenancies carrying lump rentals and of Greaves and Cuming, JJ. in the case of Suresh Chandra v. Mathura Nath : AIR1925Cal1187 where the same view was adopted. Reference may also be made in this connection to an unreported judgment of this Court in AF AD No. 2361 of 1927 which was delivered by me sitting singly on a review of the authorities and in which, came to the conclusion that the decision of their Lordships of the Judicial Committee of the Privy Council in the case of laid down the rule of suspension of rent in cases of lump rentals. This decision of mine alluded to above which was given on the 10th September 1928 was appealed from under the Letters Patent and it has been affirmed the appeal having been summarily dismissed by C. C. Ghose and Mallik JJ. on 8th January, 1929'.

12. The above-quoted review of cases in : AIR1929Cal568 does not contain reference to one judgment of the Privy Council, reported in 59 Ind App 29: (AIR 1932 PC 28) Jogesh Chandra Roy v. Emdad Meah, which was subsequently delivered. In the case of 59 Ind App 29: (AIR 1932 PC 28) Lord Thankerton observed as follows:--

'Where there is no dispute as to the identity of the subjects Jet but the tenant denies that he has ever got possession of the subjects, it is for the landlord to prove that he has discharged his obligation to put the tenant in possession before he can enforce the tenant's obligation to pay rent. The cases cited by counsel for the appellant' were either cases where the tenant had already paid rent under the lease or where the tenant claimed that certain subjects of which he had not got possession were within the subjects let, which the landlord denied. In these cases the onus would primarily be on the tenant.

13. Such was the doctrine of a suspension of vent, as understood and applied in this country, until the year 1942 when the Judicial Committee decided the case of .

14. That case was undoubtedly an extreme case on facts. In that case the lease was made in July 1875. The suit for rent was for a period of three years beginning from April 15, 1931. The finding of the courts below in that case was that possession of 37 acres, out of the demised property covering an area of 1464 bighas, was not given to the lessee and was not insisted on by him. On this finding, the question mooted was whether after more than fifty years it was open to the lessee to claim total suspension of rent, fixed by the lease, until the land, of which possession had not been delivered was restored. Their Lordships disallowed the claim for total suspension of rent.

15. I have to refer to the reasons which weighed with their Lordships of the Privy Council in some detail in Order to test the first branch of the argument of Mr. Mitter, in the two alternative forms in which the same was advanced.

16. After referring to certain English decisions on the doctrine of suspension of rent, Sir George Rankin, who delivered the judgment of the Board, observed as follows:--

(a) 'So far the only rule laid down by the Board has been the negative proposition that '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 was a lump 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.: . The applicability of the English rules was strongly challenged in the Tagore lectures of 1895 (see Land Law of Bengal, by Sarada Charan Mitra, a judge of the High Court from 1904-1908), and at the present time decision in Bengal disclose a state of considerable perplexity and difference of opinion as to the application of these doctrines some distinguishing between cases of eviction and cases of failure to deliver possession; some expressing the view that though it must work injustice in some cases the refusal to permit apportionment of rent helps to protect tenants and should be maintained as a dependable rule others holding with Bartley J. in the present case that no such rigid rule can be applied as justice, equity and good conscience in the conditions of Bengal. It will suffice here to refer to Dwijendra Nath v. Affabuddi Sardar, 21 Cal WN 492: (AIR 1917 Cal 177) Mahim Chandra Banikya v. Karamali : AIR1929Cal516 , : AIR1929Cal568 , Sakhisona Dasi v. Prankrishna Das. : AIR1933Cal566 and Jagadish Nath Roy v. Surendra Prosad Lahiri 40 Cal WN 166. The observations of the Board in Katyayani's case have only added to the perplexity. since they have in some cases been wrongly taken to lay down that if the rent is a lump sum rent then in all cases of failure to give possession of any part there must be a suspension of the entire rent. They were intended only as showing that on its facts that case raised no question of suspension even if the course of discussions in Bengal be taken as correct, a question on which there was no need to embark.'

(b) 'Since 1772 no court has had authority to apply to the districts of Bengal rules devised upon other principles than justice, equity and good conscience. The doctrine of suspension of rent is not the less to be regarded because it has drawn from the common law but this origin will not serve by itself for a justification.'

(c) 'As a matter of broad general principle the law of India no longer proceeds on the notion that where a contract is for an entire sum there is a necessity of reason which prevents a party from recovering any thing where his full obligations under a special contract have not been discharged. Since 1872 under Section 70 of the Indian Contract Act, the mere fact that the party has done work which has been accepted, or supplied goods which have been taken, entitles him to compensation subject, if need be, to any claim for damages. It is not supposed that a contrary rule is needed to encourage people to keep their bargains. No one objects that the work done or goods supplied cannot of themselves raised an equity in favour of one who has broken his contract.

(d) 'IF, then, the matter is in a sense one of policy, and of general policy, it must be noted that tenancies in Bengal are of different kinds but in very many cases are permanent and at fixed rates (mourasi, Mukarari or istcmrari). Not infrequently they cover large tracts, including jungle, watery wastes, char lands, lands which have become silted up, lands which have been washed away by rivers and reformed. The effect of the rains on rivers and the boundaries of estates, the absence of boundary marks and pillars, the difficulty of relaying maps on the site, the scarcity of reliable old maps and the recent origin of survey and settlement operations -- these, too, are matters which give a special edge of unreason to any general doctrine that suspension of the entire rent is the consequence of a failure to give possession of any part, however small. At various times, before 1885, when the Bengal Tenancy Act was passed, the raiyat was doubtless in very special need of the protection of the law, but this can hardly be thought to apply to the modern tenure-holder as a class, and relief by specific performance, by damages, by abatement of rent is not unobtainable from the courts, and need not be inadequate.'

(e) 'In these circumstances their Lordships think it impossible to require the courts in Bengal as a matter of justice, equity and good conscience to follow such English cases as (1836) 1 M and W 747. The English context of English decisions must be borne in mind -- the social system the character of the countryside, the well settled' boundaries, the limited term of leases. It is not matter for surprise that learned Judges in Bengal have from time to time rejected the doctrine that suspension of rent should follow from a failure to deliver possession of any part of the land demised.'

(f) 'The purely accidental or aleatory character of the penalty with which the lessor is visited prevents it from being the medium or the object of a judicial discretion in such cases; which afford no reason why a scientific and careful attempt to adjust the rights of the parties should discard the ordinary forms of relief -- damages, apportionment, specific performance, the right to avoid the lease as the case may require -- for a method which proceeds by giving one party to the transaction a windfall, or a right to retain and use another party's property without making payment.'

17. From the aforesaid extracts, it clearly appears that their Lordships of the Judicial Committee did not intend to confine their observations to the case before them. Their Lordships wanted to remove a state of perplexity due to difference of judicial opinion in India as to the application of the doctrine of suspension of rent, which perplexity was heightened by indiscriminate application of the observations of the Privy Council in Katyayani's case to all cases of failure by the lessee to give possession of any part of a demise at a lump rental. The perplexity was sought to be removed by contrasting conditions in England with those in India, in course of which their Lordships examined the historical background of the introduction of the doctrine in India and gave reasons why an unthinking adherence to the doctrine was not desirable. In the opinion of the Privy Council, there was no reason to discard the ordinary forms of relief by way of damages, apportionment, specific performance or avoidance of the lease, well known in India, and to adopt an alien method, which proceeded by giving one party to the transaction a windfall or right to retain another parry's property without making payment therefor. We are therefore, unable to uphold the first contention of Mr. Mitter that the observations in Ramlal Dutt's case did not amount to an enunciation of legal principle but were mere observations made in the context of an unusual case before the Privy Council.

18. We are also unable to uphold the alternative branch of the first contention of Mr. Mitter, that the legal principles, if any, enunciated in Ramlal Dutt's case were applicable to agrarian tenancies, where the boundaries were either uncertain or changeable or inconstant and correct and reliable maps whereof were scarce or difficult to obtain. We have already quoted the extract in which the special difficulties of the application of the doctrine to large tracts of agrarian tenancies were discussed. In our reading of the judgment the observations were never intended to apply only to agrarian tenancies. The purpose of refering the special difficulties of the application of the doctrine of suspension of rent was only to show that the observations should apply with greater force to agrarian tenancies. It was never intended to exclude urban or metropolitan non-agricultural tenancies from the scone of the law laid down in the aforesaid decision. The particular difficulties of agrarian tenancies were treated as merely matters which gave a special ''edge of unreason' to the application of the doctrine of suspension of rent to such tenancies. We, therefore, also overrule the alternative branch of the first contention made by Mr. Mitter.

19. 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 form a part of the property leased, we do not decide. We only mention in passing that in a case reported in Nilkantha Pati v. Kshitish Chandra Satpati, ILR : AIR1951Cal338 , Mookerjee and Lahiri JJ, expressed the opinion that even in Ramlal Dutt's case there was a distinction drawn between cases where the lessor evicted the lessee from and where the lessor failed to give part possession to the lessee of the demised premises and in the first class of cases, if the test of justice, equity and good conscience was satisfied, a Court may allow total suspension of rent.

20. We now turn to the last branch of the argument of Mr. Mitter. On the findings arrived at by the Court below, Mr. Mitter argued, there is no doubt that landlord opposite party had failed to give possession to the lessee petitioner of one of the three bed rooms agreed to be let. After that finding, Mr. Mitter contended, the Court below should not have decreed in full the claim of the landlord for rent at the contractual rate; there should have been a decree for a reduced rent on proper apportionment. There are more than one reason, why we are unable to accept that argument. In the first place a Court of Small Causes is an inappropriate Court for the decision of an issue of apportionment of rent. Assuming, however, that the Small Cause Court had jurisdiction to decide such an issue, the lessee petitioner never played for relief by way of reduction of rent on apportionment. The petitioner's conduct is inexplicable. According to him he was not given possession of one of the bed rooms from the inception of the tenancy. Nevertheless, he paid without protest the full contractual rent for four months after the commencement of the tenancy and took up the defence of suspension of rent only when the landlord opposite party sued him for arrears of rent for the months of September to November, 1956. According to the petitioner's own statement, in paragraph. 4 of his application for revision before this Court, he deposited, with the Rent Controller, the rent for the months of December, 1956, to July, 1957, after the dismissal of the landlord opposite party's claim, on August 9, 1957, by the trial Court. In the background of this conduct it is difficult to give relief to the lessee petitioner by way of reduction of rent on apportionment and by passing a decree only at a reduced rate of rent. Where several remedies, namely, damages, apportionment, specific performance or avoidance of the lease may be available to the lessee petitioner, it is unreasonable to thrust a relief on him, unless he himself chooses one or more of the alternative reliefs available to him. That choice of defence has to be made at the time of filing the written statement and should not be allowed to be made, when the matter comes up before a Court of revisional jurisdiction. An issue as to reduction of rent on apportionment, in a case like the present one, cannot be decided on arithmetical calculation, but has to be decided on evidence. No prayer was made before us for opportunity to amend the written statement, so as to enable the lessee defendant petitioner to take an alternative defence of reduction of rent by way of apportionment. What was done before us was, alternatively, to dispute the propriety of the decree, which had allowed the opposite party lessor's claim in full, instead of allowing it in part on a reduced rate of rent, on apportionment. The singular defence of suspension of rent taken by the defendant lessee petitioner failed. Thereafter there was no material before the Court below on which to refuse the plaintiff lessors' claim in part, Mr. Mitter tried to get over this portion by arguing that the lessee petitioner had applied for local investigation of the disputed premises, before the trial court, and a local investigation was held by a pleader Commissioner. The purpose of the local investigation must have been, according to Mr. Mitter, to supply materials on which a reduction of rent on apportionment could be made. We are unable to read in the application for local investigation any such purpose.

21. We, therefore, overrule the last contention of Mr. Mitter. Although we do so, we are of the opinion that the lessee petitioner is still at liberty to seek such other relief as may be available to him in the circumstances of the case, if any at all, in an appropriate proceeding before an appropriate forum.

22. We are grateful to Dr. Gupta for his very able analysis of the decision in Ramlal Dutt's case which has largely enabled us to come to our conclusions amidst a labyrinth of case laws on the point. In our opinion the re-statement of the law in Ramlal Dutt's case , regarding suspension of rent, made after a consideration of the dictum in Katyayani's case , is more suited to Indian conditions than the statement of the law in any of the decisions- preceding it. We are, therefore, of the opinion that the Full Bench of the Small Cause Court correctly applied the law as laid down in Ramlal's Dutt's case and rightly rejected the plea of suspension of rent.

23. Dr. Gupta urged before us another ground why the application for revision under Section 115 of the Civil Procedure Code, alternatively under Article 227 of the Constitution of India, must fail. He contended that even if the Full Bench of the Small Cause Court had erred in applying the dictum in Ramlal Dutt's case to the facts of the present case, even then it would amount to an error of law and no question of jurisdiction either under Section 115 of the Code of Civil Procedure or under the Article 227 of the Constitution of India would arise. We are of opinion that there is considerable substance in the point taken by Dr. Gupta. We need not however, further consider this point, because in our opinion the Full Bench of the Small Cause Court correctly applied the law in Ramlal Dutt's case to the facts of the instant case.

24. We therefore, discharge the Rule with costs -- hearing fee being assessed at three gold mohurs.

Guha, J.

25. I agree.


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