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TMI Blog1966 (2) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... er 1956, at the rate of ₹ 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 (A.I.R. (1961) Ass. 52 case which the High Court and the Full Bench of the Small Cause 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Sir George Rankin, that he should enjoy a windfall. On the Other hand it is unfair that if a tenant is not given possession of a substantial portion of the property, he should be asked to pay any compensation for the use of the property while he is taking appropriate measures for specific performance of the contract. It seems to us that it will depend on the circumstances of each case whether a tenant would be entitled to suspend payment of rent or whether he should be held liable to pay proportionate part of the rent. On the facts of this case we are of the opinion that the tenant is not entitled to suspend the payment of rent but he must pay proportionate part of the rent. 8. We may make it clear that like Privy Council in Ram Lal Du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mises in question. 11. Mr. Sarjoo Prasad, the learned counsel for the plaintiff, urges that the defendant had paid rent voluntarily for four months - this fact also is relied on by the High Court - and therefore we should not remand the case. But we find that three months rent was paid in advance as security deposit, and hence there is no force in the contention. 12. Mr. Sarjoo Prasad finally contends that as this appeal arises from an application under s. 115 of Civil Procedure Code and art. 227 of the Constitution, we should not interfere with the decision of the Full Bench of the Small Causes Court even though it be erroneous. A similar point was raised before the High Court and although the High Court found some substance in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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