Judgement

SIKRI, J. : This appeal by special leave is directed against the judgment of the High Court of Calcutta in an application under 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.

2. 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 November 1956, at the rate of Rs. 350 per mensem, 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 April, 30 1956, under the plaintiff, in respect of flat No. 17 at premises No. 18A, 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 bedrooms, 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.

3. The Small Cause Court Judge, Mr. Mandal, 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, 30 Cal WN 1 and Abhoya Charan Sen v. Hem Chandra Pal, 33 Cal WN 715 he held that the defendant was entitled to suspend payment of rent to the plaintiff.

4. 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 v. Dhirendra Nath, 70 Ind App 18, 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.

5. The defendant then filed an application under S. 115, Civil Procedure Code, and Art. 227 of the Constitution. In the application 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.

6. Mr. N. C. Chatterjee, the learned counsel for the defendant, contends that the decision in Ram Lal Dutt s case, 70 Ind App 18 , 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 this case because the plaintiff had deliberately not given possession 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.

7. We are unable to agree with Mr. Chatterjee that the decision of the Privy Council in Ram Lal Dutt s case, 70 Ind App 18 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 enunci