Mt. Deoki Kuar vs Shiva Prosad Singh

Wort, J.—This is an appeal from the decision of a Judge of this Court sitting singly and arises out of an action for rent.

The question which fell to be decided throughout, in all Courts, was whether the defendant-tenant was entitled, and to what extent, to suspension of rent by reason of the fact that he had been dispossessed of two plots out of the holding, namely plots Nos. 787 and 788. There were materials before the Court from which it might have been held that these plots were held separately and not as part of one holding; but throughout, from the judgment of the Court of first instance to the judgment of this Court, it has been held that these plots were treated by the landlord plaintiff as forming a part of one holding at a lump sum rent and not at a rate per bigha. The importance of this will be noticed in a moment.

It seems to me that the decision of this case can be very briefly stated, but the brevity of my observations show no lack of respect to the judgment of the learned Judge of this Court whose judgment we are reversing. In the first instance, I propose to refer to a decision of their Lordships of the Judicial Committee of the Privy Council in which this matter has been dealt with, AIR 1925 97 (Privy Council) where the decision of their Lordships of the Judicial Committee of the Privy Council was expressed by Lord Salvesen as follows:

The doctrine of suspension of payment of rent, where the tenant has not been put in possession of part of the subject leased, has been applied where the rent was a lump rent for the whole land leased treated as an indivisible subject. It has no application to a case where the stipulated rent is so much per acre or bigha.

This decision has been analysed by Mukerji J. in Sakhisona Dasi Vs. Prankrishna Das and Others, , where the learned Judge came to certain conclusion as to what the decision meant. The case to which I have referred has been relied upon by the parties before us in appeal. The decision of the Additional District Judge in this case affirmed the decision of the Munsif who tried the suit and was to the effect that the tenant, by reason of the fact of his being dispossessed by the landlord, was entitled to total suspension of rent. On appeal to this Court, the learned Judge made this observation:

I fail to see how in the circumstances of this case it will be equitable to allow suspension of the entire rent.

Then he makes reference to the area of the holding, the area of which the tenant-defendant was dispossessed, being approximately one quarter of the whole. "In my opinion," says the learned Judge,

it would be pushing the doctrine of suspension of rent too far if it were to be applied to the facts of the present case. I consider it fair and equitable that the defendant should pay proportionate rent for the area in her possession.

It would appear that the learned Judge in his statement that equitable principles apply to this case, had in mind the judgment of Macpherson J. in Dalip Narayan Singh v. Suraj Narayan Missir A.I.R (1935). Pat. 38, where in not dissimilar circumstances the Court allowed total suspension of rent which was confirmed by the decision of this Court. But in the course of his judgment Macpherson J. made this observation:

It would be disastrous in this province if the doctrine of suspension of rent as applied to a tenancy with a lump rental should be whittled down. And even in the very improbable event that it could be shown that the land of this or any other long-standing holding in this province is held at so much per bigha, it would generally not be in accordance with equity to decree the rent for the balance of the annual rental after deducting the proportion of rent....

The observations of the learned Judge, with respect, were not necessary for the decision of that case, both learned Judges agreeing that total suspension of rent should be decreed in the case, but it is unnecessary to enter into that question for considerations to which I shall now refer if, as contended by the respondent landlord, the equitable principles apply, then the learned Judge from whose decision this appeal had been preferred, exercised, what might, I think be correctly described, his discretion in the circumstances and came to the conclusion that it would be equitable to award a total suspension of rent, With great respect to the learned Judge of this Court, in those circumstances it was not open to him to reverse the decision of the lower Appellate Court.

On the other hand if the equitable principles did not apply, then quite clearly applying the rule as stated by their Lordships of the. Judicial Committee in the case to which I have made reference, which by implication meant total suspension of rent, the tenant in the circumstances of the case (this not being a holding held at a rent per bigha) was entitled to total suspension.

It must not be understood by this decision that I am deciding any general principle of law but dealing with the facts and circumstances of this case. It will be seen therefore from whichever point of view this case is looked at, the landlord was in these circumstances, bound to fail in this Court, the learned District Judge having come to the conclusion that the tenant was entitled to a total suspension of rent. With these observations I would allow this appeal and restore the decision of the learned Judge in the Court below with costs.

Harries C.J.

I agree.