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.

( 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 70 Ind App 18: (AIR 1943 PC 24) 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, 70 Ind App 18: (AIR 1943 PC 24) 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 do