# SURENDRA NATII BIBRA v. STEPHEN COURT LTD

- **Citation:** [1966] 3 S.C.R. 458
- **Court:** Supreme Court of India
- **Decided:** 1966-02-04
- **Case number:** Civil Appeal No. 661 of 1963
- **Bench:** J. C. Shah, S. M. S!Klll, V. Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/surendra-natii-bibra-v-stephen-court-ltd-3561
- **Pages:** 4

## Headnote

1.And/ord and tena111-Pos>ession of whole of the premises agreed
to not dtlivered-Tenant's right to suspend payment of entire rent.
The appellant e•ecuted a lease for a period . of 21 years. in respect
of the respondent's flat consisti~ of 3 bedrooms, at a monthly rent of
Rs. 350. As the respondent <leltvered possession of only 2 bed rooms,
the appellant snspended the payment of rent altogether. The respondent
thereupon filed a suit for recovery of rent in the Court of Small Canseo
but it was dismissed.
In an application under
•~ 38 of the Presiden::y
Small Canseo Court Act the Full Bench of the Small Causes Court de·
creed the suit, and the decree was confirmed in the appellant"a revision
petition to the High Court under s. 11 S of the Civil Procedure
Code
and Art. 227 of the Constitution.
In appeal to this Court.
HELD : The appellant must pay a proportionate part of the
rent,
becanse, it would be inequitable to allow the respondent, on the one
hand, to recover the full rent when
he had not delivered
possession of
the whole of the premises, and on the other, to allow the appellant to
enjoy a substantial portion of the property of the landlord without much
inconvenience as a windfall.
It will depend on the circumstances of each case whether a tenant
would be entitled to snspend payment of the rent fully or whether he
should be held liable to pay the proportionate part of the rent. [460 D·Fl
Ra:n Lal Dutt Sarkar v. Dhirendra Nath Roy, (19431 70 I.A. 18
applied.

## Text

SURENDRA NATII BIBRA
v.
STEPHEN COURT LTD.
February 4, 1966
[J. C. SHAH, S. M. S!Klll AND V. RAMASWAMI, JJ.)
1.And/ord and tena111-Pos>ession of whole of the premises agreed
to not dtlivered-Tenant's right to suspend payment of entire rent.
The appellant e•ecuted a lease for a period . of 21 years. in respect
of the respondent's flat consisti~ of 3 bedrooms, at a monthly rent of
Rs. 350. As the respondent <leltvered possession of only 2 bed rooms,
the appellant snspended the payment of rent altogether. The respondent
thereupon filed a suit for recovery of rent in the Court of Small Canseo
but it was dismissed.
In an application under
•~ 38 of the Presiden::y
Small Canseo Court Act the Full Bench of the Small Causes Court de·
creed the suit, and the decree was confirmed in the appellant"a revision
petition to the High Court under s. 11 S of the Civil Procedure
Code
and Art. 227 of the Constitution.
In appeal to this Court.
HELD : The appellant must pay a proportionate part of the
rent,
becanse, it would be inequitable to allow the respondent, on the one
hand, to recover the full rent when
he had not delivered
possession of
the whole of the premises, and on the other, to allow the appellant to
enjoy a substantial portion of the property of the landlord without much
inconvenience as a windfall.
It will depend on the circumstances of each case whether a tenant
would be entitled to snspend payment of the rent fully or whether he
should be held liable to pay the proportionate part of the rent. [460 D·Fl
Ra:n Lal Dutt Sarkar v. Dhirendra Nath Roy, (19431 70 I.A. 18
applied.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 661 of 1963.
Appeal by special leave from the judgment and order dated
August 17, 1959 of the Calcutta High Court in Civil Rule No.
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274 of 1958.
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N. C. Chatterjee and S11kumar Ghose, for the appellant.
Sarjoo Prasad and S. C. Mawmdar, for the respondent.
The Judgment of the Court was delivered by
Sikri J. This appeal by special leave is directed
against
the judgment of the High Court of Calcutta in an application under
G
s. 115 of the Code of Civil Procedure and under art. 227 of the
Constitution filed by the tenant, Shri Surendra Nath Bibra, now
appellant before us.
Stephen Court Limited, respondent before us, hereinafter
referred to as the plaintiff, filed a suit in the Court of Small Causes,
Calcutta, for the recovery of rent from September 1956 to Novem·
II
ber 1956, at the rate of Rs. 350/· per menscm, and interest, against
the appellant, hereinafter referred to as the defendant, alleging
that the defendant was a monthly tenant by virtue of a lease dated
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S. N. BIBRA v. STl!PHl!N COURT (Sikri, ].)
459
April 30, 1956, under the plaintiff, in respect of flat No. 17 at pre·
mises No. ISA, Park Street, known as Stephen Court in the town
of Calcutta, and that the defendant had not paid the rent from September to November, 1956. The defendant, inter alia, pleaded
that relying on the representation and assurance of the plaintiff
that three bed-rooms, two bath rooms etc. would be available to
the defendant in flat No. 17 he executed a lease on April 30, 1956,
for a period of 21 years, but the plaintiff put him in possession only
of two bed-rooms and not three, and according to him, in the
circumstances he was entitled to suspend the rent altogether.
The Small Cause Court Judge, Mr. Manda!, found that the
defendant had not been put into possession of one of the three
bed-rooms. Purporting to follow Katyayani Debi v. Udoy Kumar
Das (1) and Abhoya Charan Sen v. Hem Chandra Pal (2) he held
that the defendant was entitled to suspend payment of rent to the
plaintiff.
The plaintiff then preferred an application under s. 38 of
the Presidency Small Cause Courts Act against the dismissal
of its suit. The Full Bench of the Small Causes Court, following
Ram Lal Dutt Sarkar v. Dhirendra Nath Roy,(3) held that the plaintiff's claim for arrears of rent must succeed in spite of the fact that
the landlord had failed to give possession of one out of the three
bed-rooms of the demised premises. The Bench, however, made
it clear that the "non-applicability of the principle of suspension
of rent in the present suit for recovery of arrears of rent for a particular period will not necessarily debar the tenant from claiming
other appropriate reliefs against the failure of the landlord to put
him in possession of the entire demised premises by way of apportionment of rent or damages.' Accordingly, it decreed the suit.
The defendant then filed an application under s. 115, Civil
Procedure Code, and art. 227 of the Constitution. In the applica·
tion the defendant prayed that the suit be dismissed. In the alternative, the defendant alleged that the plaintiff was at best entitled
only to a proportionate rent. The High Court dismissed the application and the defendant having obtained special leave, the matter
is now before us.
Mr. N: C. Chatterjee, the learned counsel for the defendant,
contends that the decision in Ram Lal Dutt's (4) case which the
High Court and the Full Bench of the Small Causes Court had
followed was distinguishable because in that case the tenancy was
an agricultural tenancy and the tenant in that case had raised the
point after the lapse of a number of years. He says that the doctrine of suspension of rent should be applied to the facts of thii
case because the plaintiff had deliberately not given possession
(I} 30 C.W.N. (P.C.) J.
(2) 33 C.W,N. ·ns.
C3) 70 I.A. 18.
SUPUWll COUJ.T UPO.TI
(1966) 3 S.C.R.
of one bed-room. In the alternative he contends that the Full
Bench of the Small Causes Court and the High Court should have
made an order for apportionment of rent.
We are unable to agree with Mr. Chatterjee that the decision
of the Privy Council in Ram Lal Dutt's (')case can be distinguished
on the ground urged by him. It is no doubt true that the Privy
Council was concerned with an agricultural tenancy but the Privy
Council decided the appeal on a matter of principle, the principle
being that the doctrine enunciated in Neale v. Mackenzie (2) should
not be regarded as a rule of justice, equity and good conscience
in India in all circumstances. It is interesting to note that the
1ubjcct-matter of the lease in Neale v. Mackenzie (2) was a dwelling
house and land attached to it, and it was eight acres of the land
which was attached to the house that the tenant had been kept out
of possession. Be that as it may, in our opinion, the doctrine
laid down in Neale v. Mackengie (2) is too inflexible and cannot
be applied to all cases. As observed by Sir George Rankin, the
doctrine cannot be justified as a dependable rule to be adhered to
notwithstanding hard cases. 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
ia 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 while he is taking appropriate
measures for specific performance of the 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 the 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.
We may make it clear that like the Privy Council in Ram IAl
Dlltt's (') case we are not deciding that the doctrine of suspension
of rent should or should not "be applied at all to cases of eviction
-0f the lessee by the lessor from a part of the land, and if so, whether
it is limited to rents reserved as a lump sum, 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."
In view of this we need not consider cases like Hakim Sardar Baltadur v. Parkash Singh (3); Jatindra Kumar Seal v. Raimohan Bai (4);
.and Nilkantha Pali v. Kshitish Chandra Satati.(S)
(I) 70 I.A. 18.
(2) ISO l!.R. 6J5.
(3) A.l.R. (1962} Pun. 385.
(4) A.l.R. (l!Hil) Aa. SJ.
(5) I. L.ll. (19S2) I Cal. 59.
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s. N. BmllA v. STEPHEN COUllT (Sikri, l.)
461
The High Court rejected the plea of apportionment of rent
on the ground that the defendant had not taken a specific plea
to this effect in the written statement. The second ground given
by the High Court was that it would be unreasonable to thrust a
relief on the defendant unless he himself chooses one or more of
the alternative reliefs available to him. Further, no prayer was
made before the High Court to amend the written statement to
include this relief.
In our opinion, the Full Bench of the Small Causes Court
should have remanded the case for calculation of the proportionate
rent for the portion of the premises taken possession of by the
defendant. In our view, the High Court has taken too technical
a view. It would be inequitable to allow the plaintiff to recover
the full rent when he has not delivered possession of the whole of
the premises in question.
Mr. Sarjoo Prasad, the learned counsel for the plaintiff, urges
that the defendant had paid rent voluntarily for four monthsthis fact also is relied on by the High Court-and therefore we
should not remand the case. But we find that three months'
rent was paid in advance as security deposit, and hence there is no
force in the contention.
Mr. Sarjoo Prasad finally contends that as this appeal arises
from an application under s. ll5 of Civil Procedure Code and
art. 227 of the Constitution, we should not interfere with the decision of the Full Bench of the Small Causes Court even though it be
erroneous. A similar point was raised before the High
Court
and although the High Court found some substance in the point
it chose to go into the merits of the case and not dismiss the application on this ground. It must be remembered that the application
was also under art. 227 of the Constitution, and although ordinarily art. 227 should be used sparingly, on the facts of this case
we are satisfied that the High Court was right in not throwing out
the application on t)iis ground.
In the result the appeal succeeds. We set aside the orders of
the High Court and of the Full Bench of the Small Causes Court
and of the Judge Small Causes Court, and remand the case to the
Court of Small Causes, Calcutta, with the direction that it will
dispose of the suit in the light of this judgment. The parties would
be at liberty to lead evidence before the Court of Small Causes on
the question of apportionment of rent. In the circumstances
of the case there would be no order as to costs.
Appeal allowed.