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Pranab Ganguly Vs. Shambazar Land and Estate Pvt. Ltd. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberC.R. No. 1664 of 1980
Judge
Reported inAIR1981Cal345,86CWN40
ActsWest Bengal Premises Tenancy Act, 1956 - Sections 17(2) and 34(1)
AppellantPranab Ganguly
RespondentShambazar Land and Estate Pvt. Ltd.
Appellant AdvocateSaktinath Mukherjee and ;Madhusudan Banerjee, Advs.
Respondent AdvocateBidyut Kumar Banerjee, Adv.
Cases ReferredP. K. Roy v. Bimala Mukherjee.
Excerpt:
- .....calendar. the allegation was that the petitioner failed to pay monthly rent from sep., 1976 and lift charges from aug., 1976. 3. in the application under section 17 (2) the relationship of landlord and tenant was disputed. it was also pointed out that in aug., 1976 the lift of the tenanted premises went out of order and the petitioner filed an application under section 34 (1) of the act before the rent controller, calcutta, in dec., 1976 for restoration or repair of the lift and obtained an order on 3rd may, 1977 requiring the opposite party to restore the services of the lift immediately and to make other repairs. the petitioner under section 17 (2) of the act also prayed for determination of the abatement of rent by way of suspension and also to determine the quantum of rent since.....
Judgment:
ORDER

Sudhindra Mohan Guha, J.

1. This application for revision is directed against the order dated 11th Feb., 1980 passed by Sri A. K. Bhattacharya, Munsif, 1st Court, Sealdah dismissing the application under Section 17 (2) of the West Bengal Premises Tenancy Act.

2. The opposite party instituted a suit being T. S. No. 194 of 1977 against the petitioner for ejectment on the ground of default in respect of the suit flat at the third floor at premises No. P/271/B. C. I. T. Scheme No. VI -- M. Baliaghata, which the petitions was occupying at a monthly rent of Rs. 266/- payable according to English Calendar. The allegation was that the petitioner failed to pay monthly rent from Sep., 1976 and lift charges from Aug., 1976.

3. In the application under Section 17 (2) the relationship of landlord and tenant was disputed. It was also pointed out that in Aug., 1976 the lift of the tenanted premises went out of order and the petitioner filed an application under Section 34 (1) of the Act before the Rent Controller, Calcutta, in Dec., 1976 for restoration or repair of the lift and obtained an order on 3rd May, 1977 requiring the opposite party to restore the services of the lift immediately and to make other repairs. The petitioner under Section 17 (2) of the Act also prayed for determination of the abatement of rent by way of suspension and also to determine the quantum of rent since Aug., 1976.

4. In objection to the petition under Section 17 (2) of the Act it was pleaded by the opposite party that the rent of the suit premises was at Rs. 250/- p. m. and the petitioner further agreed to pay Rs. 16/-per month as charge for lift. The charge of the lift being separate there was no justification to stop payment of rent.

5. By the impugned order the learned Munsif found the existence of relationship of landlord and tenant between the parties and that the lift charge of Rs. 16/- did not come within the purview of rent, since the said amount us per agreement was to be paid by the petitioner to opposite party separately, which had no nexus with the tenant's liability to pay the rental of Rs. 250/-.

6. Mr. Saktinath Mukherjee, the learned Advocate for the petitioner relying on the decision in the case of Usha Ranjan Bhatta-charya v. Mahalakmi Thacker, reported in (1975) 79 Cal WN 221 argues that rent means and includes the whole amount which is agreed to be paid by the tenant as condition for the occupation of the premises. ft is also pointed out that in the aforesaid decision it was held that the rent would mean the whole amount agreed to be paid by the tenant for his enjoyment of what has been let out to him, whether described as a rent or otherwise. According to him, even any additional payment made for services rendered by the landlord will be included in the quantum of rent It is also contended that the petitioner claimed suspension of rent, because one of the essential services was stopped, and as such the learned Munsif was not justified to hold that the application under Section 17 (2) of the Act was not bona fide.

7. Mr. Bidyut Kumar Banerjee, the learned Advocate for the opposite party on the other hand contends that the charge for lift was never fixed and it had all along been realised separately, and as such the charge for lift can never form an integral part of the rent.

8. The petitioner in this case was inducted as a tenant in respect of the premises in suit on the third floor at a rental of Rs. 250/-per month with facilities of a lift, the charge for which initially was fixed at Rs. 30/-. The charge was reduced to Rs. 20/- and then to Rs. 16/- per month, Undisputedly, the lift charge has been realised under separate receipt. This lift is out of order since August, 1976. The value of the tenancy or the advantages appended to the tenancy diminished without the services or facilities of the lift. In the application under Section 17 (2) of the Act it was pleaded that the plaintiff had intentionally and/or wilfully neglected and/or refused to maintain the essential services of lift annexed to the tenancy. Thus he prayed abatement of rent. Now, the question arises whether the tenant-opposite party (petitioner ?) would be disentitled to abatement of rent only because the charge for lift had been paid separately.

9. In view of the clear admission of the plaintiff treating the lift charge as part and included in rent we need not enter into the controversy. The teamed Court below as well as the learned Advocates of the parties overlooked the statement in para 10 of the plaint, wherein it is stated that the suit is valued at Rs. 3,192/-, being one year's rent at the rate of Rs. 266/- (Rs. 250 + Rs. 16) and the court-fee is paid accordingly.

10. In this view of the matter, the controversy becomes only of academic interest. In the case of Usha Ranjan Bhattacharjee v. Mahalaksmi Thacker, reported in (1975) 79 Cal WN 221, Manas Nath Roy, J. had occasion to consider the implication and meaning of rent. According to his Lordship, in its wider sense 'rent' means any payment made for the use of land or building and this includes the payment by a licensee in respect of the use and occupation of any land or building. In the narrower sense 'rent' means payment made by tenant to landlord for property demised to him. It is also observed that rent is the whole amount agreed to be paid by a tenant to his landlord in respect of his enjoyment of What is let out to whether described as rent or not. Even additional payments made for such thing as fitments and payments in respect of rates where the landlord has rated or agreed to be paid by the tenant as condition for his tenancy will be rent. Under the English Acts 'rent' also includes additional payments for amenities (vide page 226 of the report).

Respectfully agreeing with his Lordship I would hold thai rent includes also any extra amount agreed to be paid for the occupation and enjoyment of the tenancy.

11. Next branch of Mr. Banerjee's argument is that the petitioner cannot claim abatement in view of the fact that he had already obtained an order under Section 34 (1) of the Act. In support of such contention reliance is placed on the decision of Allahabad High Court in the case of Mani Kant Tiwari v. Babu Ram Dixit. reported in : AIR1978All144 . It is held therein that a tenant who has a grievance on account of the denial of an amenity to which he claims to he entitled could or can seek recourse under the provisions of Section 7-D of U. P. (Temporary) Control of Rent and Eviction Act (3 of 1947). When that is so, there can be no suspension or abatement of rent itself payable by the tenant to the landlord.

12. Mr. Banerjee also refers to the decision of a Division Bench of this Court in the case of National Model Industries Ltd. v. Birendra Nath Mitra, reported in : AIR1957Cal232 . It is held therein that a tenant is not entitled to suspension or abatement of rent on account of the landlord's failure to carry out the repairs. The liability to pay rent continues even though repairs under Section 38(3) of the West Bengal Premises Rent Control Act, 1950 have not been carried out.

13. In surendra v. Stephen Court Ltd.. reported in : [1966]3SCR458 , the Supreme Court holds that while the doctrine of suspension of rent will be applicable in India, it will not be applicable to all cases as an inflexible rule. It will be inequitable that a tenant should not pay any rent when be enjoys a substantial portion of the demised property without much inconvenience. At the same time it will be unfair, if a tenant is asked to pay compensation for the use of the property when he is not given possession of a substantial portion of such property. It is further observed 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 rent.

14. In the case of P. K. Roy v. Bimala Mukherjee. reported in (1976) 80 Cal WN 939, S. K. Datta, J. held that the plea of abatement of rent on the ground of deliberate total stoppage of water supply to the demised premises will be available to the tenant in an application for the determination of the quantum of rent payable under Section 17 (2) of the West Bengal Premises Tenancy Act. 1956.

15. For the aforesaid reasons, the Rule succeeds and is made absolute. The impugned order is set aside. The learned Munsifi is directed to determine the amount of rent payable by the tenant-petitioner on his application under Section 17 (2) of the Act.

16. Each party to pay and bear its own costs.


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