Where a tenant is dispossessed of a portion of the property without his fault, he is not liable to pay the full rent.

B.S.Dhillon, J.

1. The only question which needs determination in this petition is regarding the decision of the Rent Controller, Palwal, dated the 22nd December, 1972, and that of the Appellate Authority, Gurgaon, dated that 31st August, 1973 on issue No. 1 which is as follows :-

"Whether the respondent Jagdish Chand is liable for ejectment for the grounds alleged in the application ?"

2. The undisputed facts are that one shop was rented out to the petitioner at the rate of Rs. 8/- per mensem, vide rent note Exhibit R. W. 1/1 dated 7th August, 1956. Subsequently, the petitioner executed another rent note Exhibit P.W. 1/1 on 2nd April, 1962, regarding two shops at the rate of Rs. 25/- per month one shop being the subject matter of the earlier rent note and the other, which was demolished by the Government on 18th July, 1970.

3. The contention of the learned counsel for the petitioner is that in view of the fact that one of the shops was demolished, the landlord is not entitled to any rent as the payment of the same to be suspended; and after the rent of the shop in possession of the appellant is determined by an appropriate authority, only then he is entitled to recover the rent to the extent to which the tenant will be found liable to pay. The Appellate Authority in its judgment has observed as follows :-

"I fail to see how that appellate was in any way concerned with the demolition of that shop and that could not be a ground to hold that the rent had been decreased."

4. The fact that shop `B was demolished by P.W.D. (B. & R.) on 18th July, 1970, is not disputed as the authorities below have proceeded to decide the application on the said premises. Therefore, the only question to be decided in this petition is that where two separate properties are taken on an agreed rent and if the tenant is dispossessed of one of the properties without any fault of his, is the landlord entitled to recover the whole rent and thus on that basis for the non-payment of rent is he entitled to ejectthe tenant ?

5. No one appears in response to the notice to oppose this petition.

6. After hearing the learned counsel for the petitioner, I am inclined to hold that in a case where the tenant is dispossessed of the portion of the property without his fault the tenant is not liable to pay the agreed rent which was agreed to paid by him as the rent of the composite property. This principle finds support from a decision of their Lordships of the Supreme Court in Surendra Nath Bibra v. Stephen Court Ltd. A.I.R. 1966 Supreme Court 1361, wherein their Lordships held that where a landlord failed to give possession of one out of three bed rooms of the demised premises, the tenant was not entitled to suspend the rent but must pay proportionate rent. In this view of the matter, the plea taken by the tenant that he is not liable to pay rent at the rate of Rs. 25/- per month after the date of demolition of shop `B by the P.W.D. authorities and consequently his dispossession from shop `B without any fault of his, has to be sustained.

7. However, none of the authorities below has given a findings as to whether the tenant has tendered the rent on the first date of hearing at the rate of Rs. 25/- per month upto 18th July, 1970, when the shop in question was demolished. It may be observed that in view of the subsequent rent not executed by the tenant, he agreed to pay a sum of Rs. 25/- per months as rent for both the shops and since he was in possession of both the shops till 18th July, 1970, he was liable to tender rent at the rate of Rs. 25/- per month up to that date, on the first date of hearing. Subsequent to his date, he had to pay the apportioned rent for the shop which is in this possession.

8. The contention of the learned counsel for the petitioner that the earlier rent note by which he rented out shop `A only at the rate of Rs. 8/- per month, should be taken to be the reasonable apportionment of the rent for that shop, cannot be accepted as the tena