Kailash Chand Jain vs Gayatri Devi Bhargava
1971 Latest Caselaw 236 Del

JUDGMENT

Rajinder Sachar, J.

(1) This judgment will also dispose of C.R. 231 of 1968.

(2) This is a defendant's petition for revision under Section 25 of the Small Causes Courts Act against the judgment and decree of the Judge, Small Causes Court dated 27th DEcember, 1967 by which the respondent-plaintiffs were granted a decree for Rs. 8s0.00 in their favor against the petitioner.

(3) The reSpondent-plaintiffs filed a suit on 31st October, 1964 for the recovery of Rs. 880.00 on the allegation that the defendant was in possession of a portion consisting of two big rooms and two small rooms and a kitchen on the first floor oF the house bearing Municipal No. 685 situate in Mohalla Jaiwara, Kundewalan Street, Ajmere Gate, Delhi, on a monthly rent of Rs. 55.00. It was alleged that the defendant was in arrears from 1st November, 1961 to 28th February 1963, and thus a sum of Rs. 880.00 was due from him, The petitioner-defendant Counteled the allegation and maintained that the whole ofthe Municipal No. 685 representating the first floor was in his tenancy which consisted of 6 rooms and 6 kothries on a monthly rent of Rs. 55.00. It was also alleged that the tenant had a right to sub-let the premiles under his tenancy and that he had sublet part of portions of No. 685 to Prabhu Dayal, Ram Sarup and Madan Gopal. It was, however, maintained that for gome years past the landlord had in collusion with subtenants started recovering rent and the defendant had been tortiously deprived of part of the demised premises and the plamtiff could not claim the rent from him so long as the deprivation continued.

(4) The suit was in the first instance tried by Mr. HK.Malik, Additional Judge, Small Cause Court, Delhi who by his order dated 31st October, 1964 found that the entire premises bearing No. 685 were let out to the petitioner tenant and that as he had been deprived of part the premises by the plaintiffs action in recovering the rent, he was entitled to suspend the payment of rent. The landlord being aggrieved filed a revision No. 9-D of 1965, which came up before the Hon'ble the Chief Justice I. D. Dua (as his lordship then was) who by his order dated 9th December, 1967 held that the trial court had not correctly understood the Decuine of the suspension of rent and remanded the case back for redecision in accordance with law and more especially in the light of the decision given in L.P.A. 46 D of 1962 decided on 27th July, 1966 (Hakim Sardar Bahadur v. Shri Tej Parkash Singh) and Surendra Nath Bibra v. Stephen Co. Ltd. On remand the mailer was taken up by Shri Gian Chand Jain, Judge Small Cause Court, Delhi, who framed the following two points for determination :- (1)Whether the entire first floor consisting of six rooms and six kothries was let out to the defendant ? (2) Whether the plaintiffs have tortiously dispossessed the defendant from a portion of the tenancy premises and the defendant is entitled to suspend the payment of the whole or a part of the rent ?

(5) The trial court by its judgment dated 27th December, 1967 has held on point No. 1 that it has been proved that the entire first floor consisting of 6 rooms and 6 kothries represented by Municipal No 685 was let out to the defendant petitioner and, therefore, decided this point In his favor. On the second point, however, the trial court has held that the mere fact that the plaintiff has started taking the rent from the sub-tenant dues not amount to a tortious act and the tenant, therefore, was not entitled to claim suspension of rent. He accordingly granted decree for Rs. 880.00 in favor of the plaintiff. Against this judgment and decree the present revision petition has been filed by the tenant-defendant.

(6) There is no dispute that the entire building bears Municipal No. 685 to 688. It is also not disputed that the property in suit is numbered as 685 (which is a number given to the entire first floor of this building). It is further not disputed that on the first floor the petitioner is physically occupying two rooms and a kitchen and that the other rooms on the first floor are at present in occupation of Ram Sarup Madan Gopil and Prabhu Dayal. The agreed rent is Rs. 55.00 as According to the petitioner this rent is for the entire first floor whereas according to respondent-plaintiff it is only for the portion occupied by the petitioner. It is also admitted that the petitioner has not paid the rent since 1st November, 1961.

(7) The sole point thus for determination under point (1) is whether the entire portion was let out orig inally to the petitioner at a monthly rental of Rs. 55.00or whether only a portion was let out namely the portion occupied by him at present. The trial court has after referring to the oral and documentary evidence has given a firm finding that the entire first floor consisting of 6 rooms and 6 kothries was let out to the petitioner. This is a finding of fact and is normally immune from attack In the present proceedings before me. Counsel for the petitioner Mr.Gupta, however, assailed this finding and sought to show that this finding was bas.ed on inadmissible evidence and was thus vitiated. The court below has relied en Ex Dw 1/2 dated 12th November 1954 and Dw 1/1 dated 30th, December 1957 which are the objections sent on behalf of Phool Chard Bhargava, the predecessor in-interest of respondent-plaintiff to the Municipal Committee against the levy of the house tax assessment. A reference to Dw 1/2 dated 12th, November 1954, shows that it was mentioned therein that the proposed assessment should have been made on Rs. 3185/ and rot on Bs. 3840.00 which was proposed the commmittee. In this letter a list of tenants in the buliding together with the rent received from them was given. The petitioner is mentioned as being in occupation of No 685 at a monthly rent of Rs. 55.00. Similarly Ex. DW1/ was also sent on behalf of Smt. Gayatri Devi Bhargava pointing out that the annual rent comes to Rs. 3687.00 and that the assessment should be made on that basis A list which was said to be enclosed with it of the persons occupying as tenant shows that the petitioner's name against No. 685 on a monthly rent of Rs. 55.00. EX. Dw 1/1. Dw 1/2 were produced by DW1 Tirath Ram. an employee of the Delhi Municipal Corporation. He has stated in his evidence that the objections were filed by Gayatri Devi Bhargava on 30 November 1957 while Ex. Dw 1/2 is the orginal objection filed by Phool Chand Bharga(r)va Criticism was made by Mr. Gupta that Ex. Dw 1/1 and Dw 1/2 were inadmissible in evidence and cannot be relied upon because though these objections purport t(r) be on behalf of Phool Chand who has not given evidence and no body has proved his signatures and as such these documents were not legally proved. Contention was also raised that it was also not shown that Prem Chand was authorised on behalf of Phool Chand and Gayatri Devi to sign these objections. In this connection It may be noted that Ex. Dw 1/1 and Dw 1/2 were produced by Dw 1. No objection was raised about their production and they were allowed to be exhibited without any objection by the plaintiff. Admittedly both these documents have been produced from proper and official custody. No suggestion was liven to Dw 1 that these documents were not genuine. If the objection of the plaintiff was that these documents could not have been exhibited unless Prem Chand who had signed those documents had proved them, the objection should have been raised before the trial court. It is well settled that If a party does not object to the document being exhibited at the stage of the trial court, he would not be allowed to raise such obection at the appellate stage. As for the objection that it was not shown whether Prem Chand was authorised to act on behalf of the husband of the plaintiff, or the plaintiff reference may be made to the evidence of Dw 4 who has stated that the property was managed by Prem Chand on behalf of the plaintiff and that he is the nephew of the plaintiff's husband. It is signifcant to note that Bo cross-examination was directed to this assertion by the defendant and all that was asked from him was whether any written authority was given to Prem Chand. The factumof the relationship of Prem Chand to the plaintiff or that the property was managed by Prem Chand on behalf of the plaintiff, was not challerged In cross-examination of DW4. Not only that, even the respondent-plaintiff Vidhya Bhushan appeared as Public Witness PW2 on a date subsequent to the giving of evidence by Dw 4, he did not at all state that Prem Chand was not the relation of plaintiff or that he was not manging the property on behalf of the plaintiff. Mr. Gupta had also mentioned that the list which was produced along with DW1/1 did not bear any signature and, therefore, no reliance could be placed on it. This argument, however,over-looks the fact that the list was produced as annexure to Dw 1/1 from the records of the Municipal Corporation and In the absence of any evidence or even suggestion to the contrary, there is no reason to presume that the list has been substituted and is not the list originally sent. The names of Madan Gopal, Ram Sarup and Prabhu Dayal figure do not figure anywhere against the premises No. 68. Ex. Dw 1/1 and Dw 1/2 cannot, therefore, be held to be Inadmissible in evidence.

(8) The next document relied by the trial court is Dw 3/1 dated 4th May, 1960 which is a registered notice sent by the Advocate on behalf of the plaintiff to the petitioner demanding an increase of rent and also the arrears of rent. What is of significance in this notice is that the petitioner has been described as a tenant in respect of house No. 685 (first floor) i.e. the premises in dispute on a monthly rental of Rs. 55.00. The trial court has taken the view that this notice sent by the counsel supported the case of the petitioner that the entire first floor had been let out to him. Before the trial court an effort was made to show by the plaintiff that this descreption of the petitioner as being a tenant of house No

(9) Another evidence relied upon by the respondent is Ex. Dw 2/1 a copy of the affidavit dated 5th May, 1961 filed by Prabhu Dayal with the Delhi Electric Supply Undertaking. This affidavit was produced by the clerk of the DESU. The affidavit was witnessed by the petitioner and also bears a certificate by him that Prabhu Dayal was his tenant and that he does not issue any rent receipt. The affidavit bad been filed for the purpose of getting the electric connection. Prabhu Dayal who appeared as Public Witness Public Witness 1 admitted that he filed this affidavit. Mr. Gupta urged that the certificate had been inter polated by the petitioner in collusion with his relation N N. Singh Jain who was working in the Desu office. But this argument is without any evidence to support it. Petitioner who had been examined as Dw 4 earlier to the examination of Public Witness PW1 Prabhu Dayal was never given a suggestion that the affidavit had been obtained under wrong representation from Prabhu Dayal or that there had been any inter-polation. Even a suggestion that NN.Singh Jain is any relation of Dw 4 was not put to him. It is not, therefore, possible to accept this argument of Gupta that the trial court was acting in any illegal manner in placing reliance on this Exhibit Dw 2/1-

(10) The petitioner had in support of his case that Prabhu Dayal was his tenant has produced Ex. Public Witness Public Witness 1/2 a receipt issued by them in favor of Prabhu Dayal in November, 1961. Public Witness PW1/1, Public Witness PW1/3and Public Witness Public Witness 1/4 are the rent receipts of 1964 allegedly to show that Prabhu Dayal was the tenant. The trial court did not accept these receipts as proving the case of the plaintiff because it found it anomalous that receipt dated 1st September, 1964 should be numbered as 3885 while the receipts dated 1st November, 1961 is numbered as 3901. It is also relevant to note that whereas Prabhu Dayal has stated in his affidavit Ex. Dw 2/1 dated 5th May. 1961 filed beforethe Desu that the landlord does not give any receipt he has purported to produce receipts for 1961 and 1964.

(11) Another factor taken into account by the trial court is that though in the objection Ex. Dw 1/1 filed by the plaintiff's predecessor-in-interest, it was stated that the plaintiffs were in posseision of rent deed no such rent deed was produced to support the plea that the entire first flew was not rented out to the defendant.

(12) It will thus be seen that the trial court had before it oral and documentary evidence produced by the plaintiffs and defendant in support of their respective cases. It was open to and within his jurisdiction on an appraisal of the evidence, to accept the case either of the plaintiff or the defendant. The trial court has referred to the various pieces of evidence and after consideration of them has come to the conclusion that it was proved that the entire first floor had been let out to the defendant. The effort of Mr. Gupta to show that it had relied on inadmissible evidence has not been found to be sustainable. His further affort to persude me to hold that the evidence produced by the defendant was more reliable than that of the plaintiff or that the inference drawn from the evidence by the trial court should not have been done is really an effort to persude me to reassess and reappraise the evidence myself, which certainly Is not the scope of the revision under Section 25 of the Act. I am not sitting as a court of appeal and, therefore, the mere fact that another court could have come to a different conclusion from the one arrived at by the trial court Is no reason to sot aside the finding of fact. when It is not shown that It Is vitiated either by relying on Inadmissible evidence or Is without any evidence. I, therefore, see no reason to differ from the finding of trial court on this point and would, therefore, affirm it

(13) The next question Is whether the trial court has acted illegally in holding that the defendant was not entitled to suspension of rent inspite of his finding that the plaintiff by coluding with the subtenant has started Realizing the rent from them The trial court has observed that none of the parties cited any direct authority on the point before him and. therefore, apparently he acted on the assumption that as it was open to the defendant to file a suit for realisation of rent from the sub-tenants. It was not a casein which the petitioner defendant was entitled to suspension of the rent. I am afraied the trial court has fallen Into taking wrong decision because it did not even refer to Surendre Natj Bibra v. Stephen Court Ltd. and L.P.A. 46/62 Hakim Sardar Bahadur v. Tej Parkash Singh, decided on 21st July, 1966, which as specifically referred to by I. D. Dua, J. (as his lordship then was) when remanding the case.

(14) In Surendra Nath Bibra's case the tenant had with held the rent Ob the pliea that the landlord had allured him that three bed rooms and two bath rooms would be let to him when be executed the lease, but In fact he i.e. the tenant, got only two bed rooms and rot three and thus he was entitled to suspensior of rent altogether. This plea of the tenant had been accepted by the Small Cause Court Judge which had been dies allowed on appeal by the Presidency Small Cause Court and the High Court bad also dismissed his revision. The tenant filed an appeal in the Supreme Court and their lordships observed that it will depend on the circumstances of each case whether the tenant would be entitled to suspension of payment of rent or whether be should be held liable to pay proportionate part of the rent. On the facts of that case it was held that the tenant is not entitled to suspend the payment of rent but he must pay a proportionate part of the rent This authortiy is, therefore, a binding precedent to this extent at least that if a tenant had been deprived of a part of the leased premises he would in the minimum be entitled to adjust payment of a proportionate part of the rent and may in some cases also be entitled to suspension of full rent.

(15) In Hukim Sardar Bahadur v. Sh. Taj Parkash Singh, the tenant had been deprived of a part of the leased premises and on that ground he stopped the payment of the rent, Falshaw C. J o served that :    'INa case where the landlord tortiously deprives a tenant of the use of a part of the demised premises, so long as the deprivation continues the landlord cannot even claim the rent for the rest of the premises which the tenant still continues to occupy.'  

(16) This case bad been referred by the Supreme Court in Surendra Nath Bibra's case but as their lordships were leaving open the question of the dectrine of suspension of rent in case of eviction of lessee by the Lesser from the part of the premises they did not think it necessary to deal with it. A Letters Patent Appeal against the judgment of Falshaw C. J. namely Lpa 46-D/62 was heard by S. B Capoor and H. R. Khanna JJ. (as his lordship then was) who by their judgment dated 21st July, 1966 affirmed the judgment of Falshaw C. J. and dismissed the appeal. The bench referred to Surendra Nath Bibro's case and other cages and observed that the Delhi Rent Control Act has recognised the difficulties of tenants in getting suitable accommodation in Delhi by protecting them from eviction except on certain specific grounds and further observed:-    "IT is well known that the standard rents which the tenants are liable to pay under the provisions of that Act are in most cases much lower than the rents which the landlords could in present conditions of shortage of accommodation in Delhi secure if the demands of such landlords were given full and unrestricted play. Cases may be envisaged where the landlord by depriving the tenant of a small part of the demised property, for instance garages or out houses, attached to a big bungalow, may be able to get as much or even more rent than for the property as a whole. If the landlord by his own deliberate and unlawful act deprives the tenant of the user of part of the demised properly it would not perhaps be correct to say that the tenant is enjoying a windfall".  

No provision of the Act appears to contemplate that the landlord who has tortiously deprived the tenant during the currency of the tenancy of part of the premises may, without restoring possession of that part to the tenant, apply to the Controller for eviction of the tenant from the rest of the premises or that by admitting a tortious act be may still claim eviction because the tenant has not paid proportionate rent for the part of the premises which he eontinned to keep with him. There seems to me therefore a logical basis for distinguishing a case of eviction of the lessee by the Lesser from a part of the premises under a statutory tenancy from the case of a failure to deliver possession by the Lesser to the lessee.' This bench decision is a clear authority for the proposition that tortious deprivation of the part of the premises by the landlord entitles the tenant to suspension of whole rent

(17) In Smt. Bhagirthi Devi v. Premnath, the tenancy was jointly held by five tenants in common. Some of the tenants surrendered a pan of the tenacy to the landlady and she sued for the rent turn the rest of the premises. The other tenants pleaded that the landlady was with holoing a part of the premises and therefore she was not entututed to any rent whatever until she surrendered part of the premises which she had kept with her in collusion with a tenant. After a exhaustive review of the cases including the case of Surendra Nath Bibra and the judgment of Falsaw C.J. in Hakim Sardar Bahadur. Rangarajan J. distinguished the cases of Meenakshi Sandora Nachinr and B. Ahmel Maracair v. Muthuvalliappa Chattiar and observed that ' the ieaaai has to be relieved from the hardship imposed upon him by a landlord who puts himself in the wrong vis-a-vis his tenant by forcibly or tortiously evicting him from a portion of the premises'. His lordship further observed: "INthe modern context, therefore, when tenants have to be protected against unjust and unlawful eviction even from a part of the demised premises it becomes obligatory to apply the rule of equity, justice and good conscience in the tenant's favor and not permit the landlord to recover any rent at all from his tenant, whom he has thus wronged until he places the tenant in possession of ihs portion of which he is deprived. The near consensus of judicial opinion in the country seems to be in favor of the applicability of the doctribel of suspension of rent to a situation where the landlord either forcibly or tortiously obtains possession of a portion of the demised premises."

His lordship found that as the action of the landlady in taking of possession of a motety of the premises from one of the joint tenants without the consent of other tenants amount to tortious act and, therefore, the tenant was entitiled to suspension of the whole rent.

(18) Mr. Gupta sought to distinguish the above cases by pointing out that in the present case it was not a case of eviction of the petitioner from a part of the premises because admittedly the portion in occupation of the sub-tenants was not physically occupied by the tenant petitioner. In my view it. does not make any difference whether a tenant has been physically deprived of the part of the premises or whether ne is being constructively deprived of those premises by being denied the usufrust of real to which he would be entitled, but for the tortious act of the landlady.The principleOB which a tenant is entitled to withhold the rent when he is evicted from a part of the premises is that since he is being deprived of enjoyment of a part of the tenanted premises which was let out to him, the landlord should not be permitted by his own wrong act not only to deprive the tenant of part of the premies but also to expect the payment of rent. If, therefore, in a case where the tenant is deprived of a part of the premises physically the law permits him to suspend the rent, I do not see why the same principle should not be applied when in the present case where the landlady has tortiously started Realizing rent from the sub-tenants and has thus interfered with the enjoyment of those premises by the petitioner, and has taken the plea that the subtenants are tenants directly under him. If physical deprivation of a part of ihe premises is considered as a good ground for suspension of rent I do not see why the case is different it the tenant is compelled to nle suits against the sub-tenants due to the tortious act of the landlord in admittedly realsing the rent from them ana thus causing him the inconvenience and worry and expenses of litigation. The principle is based on the larger issue of justice, equity and good conscience that no person should be allowed to take advantage of his own wrong act. If the landlord by his own wrong act deprives the tenant the use of the rent from sub tenants it is not equitable that he should at the same lime be allowed to realise the full lent from the tenant and the later should be compelled to under go the expenses and inconvenience of filing a suit against his sub-tenants which situation but for the tortious act of the landlord would not have arisen. It is no doubt irue that it the sub-tenant of his own refusees to pay the rent it would be no defense to the claim by the landlord for the payment of the rent. Because in such a case the landlord is not to blame and cannot be held responsible for the act of the sub-tenants, but when in the present case he tenants have been deprived of realisation of the rent because of the tortious act of the landlord in claiming that he is only a tenant of the part of the premises on the first floor, the position is different. Therefore the finding of the trial court that as the tenant could have filed a suit he should not be allowed to suspend the rent cannot be sustained on any principle of law.

(19) Mr. Gup a has as a last resort urged that as admittedly the petitioner was in a possession of part of the premises there should not be total suspension of rent but only a proportionate part of it. In the first instance it is to be noticed that this plea that the petitioner should pay part of the rent as never put in the pleadings, this was natural because the plaintiff never admitted that he bad deprived the tenant of the part of the premises. His plea on the otaer hand was that he bad not deprived him and that it in fact was only part of the premises which had been leased out to the petitioner. It is only after a finding has been given by the trial court against him that Mr. Gupta has urged that the plaintiff should at least be held entitled to a properdnonate rent. He has referred me to N. K. Baslos v. Krishan Lal. wherein Deshpande, J. has laid dowd that if a tenant is deprived of part of tenamed premises or facilities then he is not entitled to total suspension of rent but only to proportionate redaction of rent. It appears that the judgment in L. P. A. case and that of Rangarajan J. were not brought to his lordship's notice where the view taken was been that even it the tenant is deprived of the part of the premises he is entitled to suspension of payment of the whole rent. Even if It is assumed that the petitioner was entitled to proportionate reduction of the payment of the rent and not suspension of the whole of the rent, the question would still arise as to bow that proportion has to be caleulated. If it was a simple case of physical deprivation a number of rooms says 2 out of 6 which were let oat it may have been open to urge that the proportionate reduction of the rent payable will be about 1/3 that is equal to accommodation which has been deprived to the tenant. In the present case however the deprivation is of the realisation of the rent which the petitioner would be eninled to recover from his sub-tenants. According to the petitioner as DW- 4, he charges Prabhu Dayal Rs. 12.00 p m. Madan Gopal Rs. 2325. Ram Sarup Rs. 37.12, per month. Public Witness .1 Prabhu Dayal has stated that he was paying Rs. 10.00 and Madan Gopal Rs 18.00 and Ram Sarup Rs.25.00 (total Rs.53.00) p.m. to the plaintiff. Even if this figure of Rs. 53.00 was taken as the rent payable to the petitioner, it would mean that had there been no tortious act of the landlord the petitioner would be emitted to recover this much of rent and as admittedly the agreed rate of rent is Rs. 55.00 p.m. he would not have to pay anything from his own pocket. It may be noted that the plaintiff has admitted that he has been Realizing the rent from Prabbu Dayal, Ram Sarup and Madan Gopal right from the inception of the tenancy It is thus admitted case that the rent is being realised by the plaintiff from those sub-tenants. Thus according to the plaintiff's plea himself the petitioner-tenant has been deprived of the rent from the sub-tenants by the tortious act of ihe plaintiff. So even if the proportionate rent was to be reduced, the proportion comes to nearly the same amount of rent payable by the petitioner and thus the consequence would be that it would amount in the present peculiar circumstances of the case to suspension of the whole rent. From whatever angle one may look at the matter there is no escape from the conclusion that the petitioner would be entitled to suspend the rent.

(20) Mr. Gupta has urged that as the trial court has exercised its discretion this court should not interfere. This argument is mis conceived The trial court has mis-directed itself on a question of law and has wrongly with-held the relief from the petitioner. In such like matter the superintendence of this court under Article 227 of the Constitution can be rightly invoked as was held in Surendra Nath Bibra's case.

(21) I would therefore while affirming the finding on point No. 1, set aside the finding on point No. 2 and hold that the petitioner was entitled to suspend the amount of rent because of the tortious act of the respondent landlord for the period from 1st November, 196110 28th February, 1963.

(22) I may mention that Mr. Gupta counsel for the landlord stated that the suit had been filed by the petitioner tenant for realisation of the rent from the sub-tenant and that in this manner the tenant would get double benefit by suspension of rent and at the same time Realizing it from his sub tenants. However, no material hag been placed before me to show as to what happened in those cases. It is, therefore, unnecessary for me to take note of it. I may, however, observe that if there are any subsequent proceedings between the landlord and the tenant for the realisation of lbe rent it may, if advised, be open to the landlord to take the position that the tenant is not liable to suspension of rent for the period for which the latter has either recovered the rent from the sub-tenants or was in a position io so recover because of the decision on point No. 1 in these proceedings even by the trial court in the first instance. These are matters which necessarily call for decision, if and when any occasion arises. The present decision is restricted to the right of tenant to suspend the rent for the period in the suit.

(23) As a result of the above C. R. 27/68 is allowed. In the circumstances of the case there will be no order as to costs.