SURENDRA NATH BIBRA versus STEPHEN COURT LTD.

Citation: [1966] 3 S.C.R. 458 · Decided: 04-02-1966 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Appeal(s) allowed

Judgment (excerpt)

SURENDRA NATII BIBRA 
v. 
STEPHEN COURT LTD. 
February 4, 1966 
[J. C. SHAH, S. M. S!Klll AND V. RAMASWAMI, JJ.) 
1.And/ord and tena111-Pos>ession of whole of the premises agreed 
to not dtlivered-Tenant's right to suspend payment of entire rent. 
The appellant e•ecuted a lease for a period . of 21 years. in respect 
of the respondent's flat consisti~ of 3 bedrooms, at a monthly rent of 
Rs. 350. As the respondent <leltvered possession of only 2 bed rooms, 
the appellant snspended the payment of rent altogether. The respondent 
thereupon filed a suit for recovery of rent in the Court of Small Canseo 
but it was dismissed. 
In an application under 
•~ 38 of the Presiden::y 
Small Canseo Court Act the Full Bench of the Small Causes Court de· 
creed the suit, and the decree was confirmed in the appellant"a revision 
petition to the High Court under s. 11 S of the Civil Procedure 
Code 
and Art. 227 of the Constitution. 
In appeal to this Court. 
HELD : The appellant must pay a proportionate part of the 
rent, 
becanse, it would be inequitable to allow the respondent, on the one 
hand, to recover the full rent when 
he had not delivered 
possession of 
the whole of the premises, and on the other, to allow the appellant to 
enjoy a substantial portion of the property of the landlord without much 
inconvenience as a windfall. 
It will depend on the circumstances of each case whether a tenant 
would be entitled to snspend payment of the rent fully or whether he 
should be held liable to pay the proportionate part of the rent. [460 D·Fl 
Ra:n Lal Dutt Sarkar v. Dhirendra Nath Roy, (19431 70 I.A. 18 
applied. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 661 of 1963. 
Appeal by special leave from the judgment and order dated 
August 17, 1959 of the Calcutta High Court in Civil Rule No. 
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274 of 1958. 
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N. C. Chatterjee and S11kumar Ghose, for the appellant. 
Sarjoo Prasad and S. C. Mawmdar, for the respondent. 
The Judgment of the Court was delivered by 
Sikri J. This appeal by special leave is directed 
against 
the judgment of the High Court of Calcutta in an application under 
G 
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. 
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 Novem· 
II 
ber 1956, at the rate of Rs. 350/· per menscm, 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 
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S. N. BIBRA v. STl!PHl!N COURT (Sikri, ].) 
459 
April 30, 1956, under the plaintiff, in respect of flat No. 17 at pre· 
mises No. ISA, Park Street, known as Stephen Court in the town 
of Calcutta, and that the defendant had not paid the rent from Sep-
tember to November, 1956. The defendant, inter alia, pleaded 
that relying on the representation and assurance of the plaintiff 
that three bed-rooms, 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. 
The Small Cause Court Judge, Mr. Manda!, 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 (1) and Abhoya Charan Sen v. Hem Chandra Pal (2) he held 
that the defendant was entitled to suspend payment of rent to the 
plaintiff. 
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 Sarkar v. Dhirendra Nath Roy,(3) held that the plain-
tiff'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 parti-
cular period will not necessarily debar the tenant from claiming 
other appropriate reliefs against the failure of the lan

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