Decided on April 10,1958

Jatindra Kumar Seal Appellant
Rajmohan Rai Respondents

Referred Judgements :-



Sarjoo Prosad, C.J. - (1.)THIS is an application under Section 25 of the Provincial Small Cause Courts Act (Act IX of 1887). It relates to a suit for rent for three months - -from Chait 1363 B. S. to Jait 1364 B. S. The defendant pleaded that he had paid the rent for Chait 1363 B. S. but not for the other two months. He alleged however that the plaintiff had dispossessed him from a room in the house and caused serious inconvenience to him in his use and occupation of the premises. He was, therefore, entitled to with -hold payment of rent until the plaintiff had removed the obstruction and made the entire premises fit for his occupation.
The learned Small Cause Court Judge has accepted the case of the defendant that rent for Chait 1363 B. S. had been paid. He has also found that the plaintiff admitted that he had kept logs in portion of the premises let out to the defendant, as a result of which great inconvenience had been caused to the defendant; but he took tire view that as the defendant had not been actually dispossessed, he could not withhold payment of rent to the plaintiff, and has accordingly decreed the claim for two months at the rate of Rs. 20/ - per month. He further made a pious observation that the defendant should try for the removal of the logs and if he fails, then he can consider himself to be dispossessed.

(2.)MR . Bhattacherjee contends that on the findings and the evidence the decree is erroneous It is quite clear that the defendant has suffered serious inconvenience on account of the action of the plaintiff in storing logs in a portion of the premises let out to the defendant. The rental payable by the defendant is a lump rental and, therefore in the circumstances since he has been kept out possession of a portion of the premises, he is not liable to pay rent to the plaintiff until the plaintiff removes the logs and allows the defendant free and unobstructed occupation of the premises in question.
The decision in Nilkantha Pati v. Kshitls Chandra : AIR 1951 Cal 338 is a decision in point There the whole law on the subject has been very elaborately reviewed by the learned Judges who decided the case. It was held there that where the rent was a lump rent for the whole land leased and the landlord had dispossessed the tenant in a high -handed manner from a portion of the land, the landlord was not entitled to claim any rent on the basis of his contract with the tenant. The act in such a case is a tortious act in not allowing the tenant to hold the land peacefully.

The fact that the area from which the dispossession has taken place is a small one is not of an overriding importance so as to debar the Court from applying the principles of justice, equity and good conscience, if the Court finds that the act of the landlord was definitely a tortious one. The landlord may be entitled to rent only when he puts the tenant back in possession of the portion from which he has dispossessed him. This is a principle which is well founded and is not open to question.

The eviction of a tenant, whether from a part of the demised premises or from the whole, entails suspension of the entire rent so long as the eviction lasts, irrespective of the fact that the tenant may be in possession of the residue, it is not necessary for the Court in such cases to find out from how much land the tenant had been dispossessed. If it is found that he has been dispossessed from some land, the test to be applied is whether there has been an actual physical expulsion with the intension of depriving the tenant of the enjoyment of the demised premises or from a part thereof.

Here, the finding shows that as a result of the plaintiff's keeping the logs in the room, great inconvenience has been caused to the defendant and he is unable to occupy the house freely. That being so, the decree of the learned Small Cause Court Judge cannot be maintained. The observation made by him that the defendant should try for removal of the logs and if he fails then alone he can consider himself to be dispossessed, is on the face of it, incorrect.

As long as the logs are there, it has to be held on the findings that the defendant has been actually dispossessed and it is the duly of the plaintiff to remove the logs from the premises in question before he can be again entitled to recover rent from the defendant on the basis of the claim made by him. It is not that the rent was payable in respect of a particular portion of the house in question and, as such the rent could be split up.

It was the whole holding that had been let out to the defendant which he was entitled to occupy without any such obstruction or dispossession by the plaintiff. The act of the plaintiff in this case was clearly a tortious act and, as such, he cannot recover rent until the mischief is removed.

The application is accordingly allowed and the plaintiff 's suit is dismissed. There being no opposition, there will be no order for costs.

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