- (1.) THIS is a Civil Second Appeal in a suit for ejectment and arrears of rent. The case of the plaintiff-respondents Bhonrilal and Damodar as laid in the plaint is that on 6th June, 1951, they had given certain rooms in their house on lease to the defendant-appellant Harish Chandra on monthly rent of Rs. 17/8/- according to Hindu calendar. The defendant-appellant did not pay rent from 3. 3. 54 to 26. 12. 1954 and the plaintiff had to file a suit for the recovery thereof and that suit was dismissed on the payment of the entire amount of rent due with costs on 10. 1. 1955. Thereafter, the defendant-appellant filed a suit for fixation of standard rent in the court of the Munsiff, Jaipur East which was dismissed on 23. 1. 1956 but on appeal by the defendant-appellant the plaintiff-respondents agreed to the fixation of standard rent at Rs. 15/- per mensem and the appellate court ordered fixation of rent at that rate from 7. 1. 1955. During the course of the pendency of the suit for the fixation of standard rent, the defendant appellant had deposited Rs. 80/- in the court of the Munsiff, Jaipur East. It is further alleged that the defendant-appellant did not pay rent from Pos Sudi 2, Sambat 2011 corresponding to 26. 12. 1954 to Kartik Sudi 1, Sambat 2014, corresponding to 9. 10. 1957 for 35 months at Rs. 15/- per mensem. The plaintiff-respondents served a notice on 6. 9. 1959 determining the lease and asking the defendant-appellant to quit. They claimed a decree for ejectment and also for Rs. 525/- as arrears of rent. The defendant-appellant admitted the tenancy and also the fact that standard rent was fixed at Rs. 15/- per mensem. He, however, controverted the contention of the plaintiffs that rent for 35 months was due. His contention is that rent for 34 months was due from 7. 1. 55 to 7. 11. 57. He pleaded that he had sent money order for Rs. 235/- to the plaintiff-respondents but it was refused. He also pleaded that the plaintiff-respondents had stopped the facility granted to him as part of the lease of taking water from the tap fixed in that house in May, 1955 and for this the defendant-appellant had to take action against the plaintiff under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, in the court of the City Magistrate, Jaipur, who ordered the restoration of this facility to the defendant-appellant on 24. 4. 1957 and this order was upheld by the Additional Collector, Jaipur City in the appeal filed by the plaintiff-respondents. According to the defendant-appellant on account of the stoppage of this facility, he had to bring water from the municipal tap and on that account he suffered damages to the extent of Rs, 528/- which he was entitled to set off against the claim for rent. Alternatively, it is pleaded that the stoppage of facility of drawing water has disturbed the peaceful and full enjoyment of the property demised by the defendant-appellant and for this reason, the entire rent from May, 1955 should be deemed to have been suspended. The trial court decided on 4. 11. 1959 that his plea for damages could be examined only if he filed a counterclaim tor the same. The defendant-appellant thereupon filed a counter-claim for the recovery of Rs. 528/- as damages, as alleged hereinbefore and also for grant of relief for suspension of rent. In the counter-claim the plaintiff claimed a decree for Rs. 528/- and also tor a permanent injunction that the plaintiff should restore the facility of water from the tap fixed in the house of the plaintiff. In reply to this counter-claim, the plaintiff-respondents; pleaded that the facility for drawing water had no relation with the lease and for this the defendant-appellant had to pay separately Rs. 1/8/- per mensem. It was further pleaded that this facility was withdrawn when the defen-dant-appellant did not pay the dues for grant of that facility for six months. It was also pleaded that the defendant did not suffer any damages on account of the withdrawal of the facility of taking water from the tap.
(2.) BOTH the claim of the plaintiff and the counter claim ' of the defendant were consolidated and were tried together. The suit of the plaintiff-respondents tor ejectment was dismissed on the ground that the defendant-appellant was not a defaulter within the meaning of sec. 13 (l) (a) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The suit for arrears of rent was dismissed on the ground that the defendant-appellant was entitled to immunity from payment of rent as there had been substantial interference by the plaintiff-respondents with the enjoyment of the demised property, and on that account there had been constructive eviction of the defendant-appellant from the demised property as water supply which was one of the essential services for the enjoyment of the tenancy was illegally withdrawn by the plaintiff-respondents. The defendant-appellants' suit for damages was dismissed on the ground that the defendant-appellant could not be allowed damages as he had already been granted relief of suspension of the entire rent, Taking this view of the matter, the suit of the plaintiffs was dismissed with costs by the trial court and a decree was passed in favour of the defendant by ordering that the defendant would not be liable to pay rent from 7. 1. 1955 so long as the plaintiffs did not supply water from the tap and the rent shall stand suspended till then. A mandatory injunction was also issued against the plaintiffs directing them to restore water connection. The counter-claim of the defendant was dismissed. An appeal against this judgment and decree was filed by the plaintiffs in the court of the District Judge, Jaipur City which was transferred for decision to the Senior Civil Judge No. 2, Jaipur City. No appeal by the defendant-appellant was preferred. The learned Senior Civil Judge reversed the decision of the trial court that the rent remained suspended on account of the withdrawal of the facility for taking water from the water tap. The learned Senior Civil Judge held that the facility of water was cut off by the plaintiff-respondents on account of the defendant-appellant's failure to pay the rent and water charges regularly each month as per term of the rent note. The plaintiffs' suit for ejectment was, however, dismissed on the ground that the defendant was not a defaulter in the payment of rent. The decree of the trial court granting mandatory injunction was also set aside. As a result the lower appellate court decreed the suit of the plaintiff for Rs. 430/- with interest at 6% from 16. 11. 1957 till realization. Against this judgment and decree the defendant appellant has filed this appeal. Elaborate arguments were addressed by the learned counsel of the defendant-appellant regarding the doctrine of suspension of rent but the first question which arises for decision in this appeal is whether the facility for taking water from the tap granted to the defendant-appellant was part of the lease or was a mere licence. For this the rent note (Ex. 1) is to be examined. The rent-note fixed Rs. 17/8/- as the rent for demised property and Rs. 1/8/- as expenses for water. In the concluding part of the rent note it is expressly mentioned that the aforesaid expenses of water shall be payable separately from the rent. The proceedings for fixation of standard rent were taken only for the reduction in the rent of Rs. 17. 8. 0. Learned counsel for the defendant-appellant has contended that in spite of the fact that there was a separate mention for payment of expenses of water it must be taken that Rs. 1. 8. 0 was a term of the lease. Reliance in this connection has been placed by the learned counsel for the defendant-appellant on the judgment of their Lordships of the Supreme Court in Karnani Properties Ltd. vs. Miss Augustine &c (l ). That was a case in which the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act (17 of 1950) were under consideration. In that case, one of the contentions raised by the Solicitor General on behalf of the landlord was that the Act did not apply to the premises in question in view of the special incidents of the tenancy. In the lease deed in that case the landlord had agreed to provide not only electric installation but also electric current and such other facilities for which no separate payment was stipulated. The definition of 'premises' as contained in sec. 2 (8) of that Act was examined and the contention urged on behalf of the landlord that the premises defined in the Act did not include the facility of additional facilities and conveniences agreed to by the landlord to be supplied to the tenant was rejected. It was also observed that the word 'rent' was not defined in that Act and that the term 'rent' was comprehensive enough to include all payments agreed upon by the landlord for the use and occupation not only of the building and its appurtenances but also of furnishings, electric installations and other amenities agreed on between the parties to be provided by and at the cost of the landlord. In that case, reference was also made to the English cases, Property Holding Company Ltd vs. Clark (2) and Alliance Property Company Ltd. vs. Shaffer (3 ). In the first case, the additional payment of 30 a year was held part of the rent within the meaning of sec. 12, sub-sec. 1 (a) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920. In the second case also the provisions of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 were under consideration and it was held that the additional payment of Rs. 100/- per annum referred to in the lease was part of the rent within the meaning of sec. 12, sub-sec. 1 (a) of that Act. The Supreme Court case and the English cases are on the provisions of special Acts and are thus distinguishable. In the instant case, I am not considering the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. That Act of course, defines 'premises' in very wide terms and a case like the present may fall within its provisions. In this case rent for the property demised was fixed at Rs. 17/8/- while a separate payment of Rs. 1/8/- was provided for the facility of taking water. Thus this facility was merely a licence. This can be tested in another way. Suppose the tenant in this case conveyed to the landlord that he would not take water from the tap either for the reason that it was not convenient for him to do so or for the reason that for most of the time the rented premises remained vacant and he had un-neces-sarily to pay charge for water. Could the landlord insist in that case that he must pay Rs. 1/8/- per mensem whether he took water from the tap or not ? The plain answer would be that landlord could not claim Rs. 1/8/- if the tenant did not want to enjoy the benefit of taking water. If Rs. 1/8/- is part of the rent the tenant could not maintain that position. I may again reiterate that I am not considering the case in which there is a lump sum fixed as rent. Here there is a separate specific provision for payment of a particular sum of money in case a particular facility was availed of. I may also say that what I have observed here has no connection with the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 and under that Act even for such an additional facility a remedy may be available to the tenant and may be enforced in accordance with the provisions of that Act. In the instant case it is to be examined after considering the rent-note (Ex. 1) and the provisions of the Transfer of Property Act whether because of withdrawal of this facility there could be suspension of the entire rent or not. I am of the view that Rs. 1/8/- was not part of the rent or a term of the lease. It makes no difference that this stipulation of payment of Rs. 1/8/- is contained in the rent-note. In this view of the matter the doctrine that a tenant is not liable to pay rent when he is evicted either actually or constructively from the demised premises by any act of the landlord need not be considered. Modi, J. in Shiv Shankar vs. Sanwal Singh (4) took the view that electricity and water charges consumed by a tenant were not part and parcel of rent when payment for them was separately provided for. This view was taken even after considering the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. I need not go to that extent. I, however, agree with him when it has been observed by him that the landlord has a remedy in case of default in the payment of extra or additional charges to cut off the facilities. The instant case is of a licence for which payment of Rs. 1/8/0 was provided for. In such a case non-payment of this amount will entitle the landlord to withdraw the facility granted under the licence. In this view of the matter, the judgment of the learned Judge of the lower appellate court is correct that there was no suspension of rent. If there was illegal withdrawal of the facilities, the remedy to the defendant appellant was to claim damages as he did. He could not set off the same against rent. "'damages' for breach of covenant by the lessor cannot be set off by the tenant against claim for rent. " (Foa's General Law of Landlord and Tenant, 8th Ed. p. 155 ). The plaintiff filed a counter-claim for damages but his claim was dismissed by the trial court and he did not file any appeal. In this appeal it is contended on behalf of the defendant-appellant that the question of damages may be considered as the trial court had refused to award damages to the defendant-appellant on the ground that it had granted relief of suspension of rent to him. Whatever may be the reason for dismissing the claim for damages, it was the duty of the defendant-appellant to have filed an appeal if he wanted to get any relief by way of damages. In this view of the matter, the defendant-appellant cannot even urge in this appeal that the amount claimed by the plaintiff-respondents as rent be reduced to the extent the defendant-appellant may be held entitled to get by way of damages. The lower appellate court has rightly passed a decree for Rs. 430/- as arrears of rent. Learned counsel for the plaintiff-respondents have filed a cross objection praying that a decree for ejectment and also for the costs of the suit which have been made easy by the lower appellate court be awarded. Learned counsel however does not press cross objection for ejectment. For costs his contention is that the lower appellate court was wrong in ordering that parties should bear their own costs in both the lower courts. In my view the proper order should have been that parties should bear costs proportionate to their success and failure, especially when the trial court had not awarded any costs to the plaintiff-respondents in the counterclaim filed by the defendant-appellant. The appeal is, therefore, dismissed with costs and the cross-objection is allowed to the extent that the decree of the Senior Civil Judge No. 2, Jaipur City dated 30. 4. 1963 is modified and it is ordered that the parties shall pay and receive costs in proportion to their sucess and failure in both the lower courts. Learned counsel for the defendant-appellant prays for leave to appeal to a Division Bench. The prayer is refused. . ;