Monday, 5 November 2018

When liability of tenant to pay rent gets suspended?

Thus it becomes clear from the observations of the Supreme Court quoted above, that the liability of the tenant to pay rent is linked to his enjoyment of the demised premises. In the present case the tenant-petitioner has been deprived of the enjoyment of the entire premises only due to the conduct and attitude of the landlord and therefore, in my opinion, the tenant's liability to pay the entire rent would stand suspended from the date from which he became unable to use and enjoy the tenanted premises. Bare perusal of Section 13(1)(k) of the Act makes it clear that if there is reasonable cause for not using the tenanted premises then a decree of eviction cannot be passed.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 67 of 1983

Decided On: 27.02.1997

 Gopal Dattaraya Chapahlkar  Vs. Govind Yeshwant Borkar and Ors.

Hon'ble Judges/Coram:
D.K. Deshmukh, J.

Citation: 1997 BomLR 52


1. By this petition filed under Article 227 of the Constitution of India, the petitioner who is a tenant of two rooms on the second floor of the residential premises, challenges the Order dated 30.10.1982 passed by the 10th Extra Assistant Judge, and Assistant Sessions Judge, Pune dismissing the Civil Appeal No. 128 of 1980 filed by the petitioner. By that order the Appellate Court confirmed the judgement and decree passed by the Additional Judge, Small Cause Court, Pune dated 14.11.1979 in Civil Suit No. 2163 of 1974 for eviction of the petitioner from the suit premises.

2. The facts giving rise to the present petition are that the respondents who are landlords and owners of the suit premises issued a notice dated 3.9.1973 terminating the tenancy of the petitioner on three grounds. First ground was that the petitioner-tenant was in arrears of rent for the period from 1.6.1961 to 30.9.73. Second ground was that the petitioner-tenant has secured suitable alternate accommodation at 802 Shivajinagar. Bhandarkar Road, Pune and the third ground was that he kept the suit premises closed for the period of six months, immediately preceding the date of filing of the Civil Suit. The notice dated 3.9.1973 was replied to by the petitioner by his reply dated 18.9.1973. The petitioner disputed his liability to pay the rent as demanded by the landlords in the notice dated 3.9.1973. On the basis of the Notice, Civil Suit No. 2163 of 1974 was filed by the landlord/respondents claiming a decree of eviction against the petitioner on the three grounds mentioned in the noticed. In the written statement, the petitioner contended that the suit premises are on 2nd floor of the building and the staircase by which the suit premises could be reached was damaged by flood water on 12th July, 1961. Due to the fact that the staircase was damaged so much that it was impossible to use it without carrying out extensive repairs, there was no way the petitioner-tenant could reach the suit premises and continue to occupy the same. The petitioner contended that he took steps necessary under the law for getting the premises and staircase repaired by the landlord and also by himself. However, the repairs were not permitted by the landlord. With the result the petitioner could not continue to occupy the suit premises. Therefore, the petitioner-tenant started living at 802 Shivajinagar, Bhandarkar Road, Pune as a temporary arrangement. He contended that the suit premises remained un-used because of the conduct of the plaintiff-landlord himself, namely, refusal to effect necessary repairs to the staircase and not allowing the petitioner also to carry out the repairs and therefore, no decree can be passed. The Trial Court, as stated above, decreed the suit on all the three grounds. The Appeal filed by the petitioner was also dismissed.

3. Shri Bhonsale, the learned Counsel appearing for the petitioner urged before me that the decree against the petitioner- tenant could not have been passed by the Courts below on all the three grounds. In the submission of Shri Bhonsale, the staircase through which the suit premises could be reached was damaged by the flood water. The petitioner's counsel, therefore, submits that in terms of provisions of Sub-section 1 of Section 23 of the Bombay Rent Act, it was the duty of the landlord to repair the staircase. But the landlord did not do so and therefore, the notice was issued to the landlord to permit the petitioner-tenant to carry out the repairs. However, the landlord did not permit the petitioner also to carry out the repairs of the staircase. The petitioner also moved the Authorities of the Pune Municipal Corporation for carrying out the repairs. However, when the Authorities of the Municipal Corporation approached the respondent -landlord he did not permit them to carry out the repairs. In the submission of Shri Bhonsale, thus it is an act of the landlord himself which prevented the tenant-petitioner from continuing to live and enjoy the suit premises and, therefore, his liability to pay rent was suspended. As liability to pay rent was suspended, for non payment of rent, a decree could not have been passed against the petitioner. He further contended that so far as Section 13(1)(k) is concerned, if the tenant does not use the suit premises for the period of 6 months, immediately preceding the date of filing of the suit without reasonable cause then only a decree of eviction can be passed against the tenant under Clause (k) of Sub-section (1) of Section 13 of the Bombay Rent Act. He submitted that in the present case the premises could not be used for the aforesaid reason. Therefore, there was a sufficient cause. Similarly, in so far as Clause (1) of Sub-section 1 of Section 13 is concerned, he submitted that if the tenant secures vacant possession of the suitable residence, then a decree of eviction can be passed against him. But if the tenant is forced to seek residential accommodation elsewhere due to conduct of the landlord which results in depriving the tenant of the enjoyment of the suit premises, then in the submission of Shri Bhonsale a decree of eviction cannot be passed against the tenant on that ground also. Shri Bhonsale relies on a judgement of the Supreme Court in the case of Surendra Nath Bibra v. Stephen Court Ltd. MANU/SC/0237/1966 : [1966]3SCR458 to contend that the liability of a tenant to pay rent is linked with his enjoyment of the demised premises. The moment this link snaps and when the tenant is deprived of the enjoyment of the demised premises, his liability to pay rent also ceases. In the submission of Shri Bhonsale, in the present case because of the conduct of the landlord himself, the tenant was deprived of the use and enjoyment of the demised premises. Therefore, the petitioner-tenant was under no liability to pay rent and hence he cannot be termed as defaulter.

4. Shri Pandit, the learned Counsel appearing for the respondents contended that though the respondent-landlord did not perform his statutory duty under Section 23(1) of the Bombay Rent Act to repair the suit premises, it was open to the petitioner-tenant to repair the premises under Sub-section 2 of Section 23 of the Act. Shri Pandit, relying on the judgement of the Calcutta High Court in the case of Jatindra Kumar Dass v. Dhirailal Vrajlal Kanakia MANU/WB/0023/1975 : AIR1975Cal123 submits that though the repairs are not carried on by the landlord, the liability of the tenant to pay the rent is not suspended.

5. It is a common ground before me that the staircase used for reaching the suit premises was damaged by the flood water. It is also an admitted position that the damage to the staircase was extensive that nobody could have used it without carrying out extensive repairs to the staircase. It is also not disputed that the only way to reach the suit premises which are on the second floor was by using that staircase. It is also not disputed before me that though the staircase was damaged, the landlord took no steps to repair the staircase. In paragraph 17 of the deposition the landlord has stated that "the defendant had by letters on several occasions requested me to repair the staircase. One such letter is dated, 22.1.1962. Witness reads the copy produced on record vide Exh. 85. Witness read the notice Exh. 86 and admits to have received a notice. I did not repair the staircase. Witness read O.C. of the letter dated 24.7.1963 said to have been sent by the defendant to the defendant when asked to state whether he received such a letter, he says I shall have to search for it. Witness read over Exh. 50 an inland letter written by him to the defendant. He now admits that he did not permit the defendant-tenant to repair the staircase at his cost".

6. It is further clear from the record that the tenant had also moved the Authorities of the Pune Municipal Corporation to have the staircase repaired. The Authorities approached the respondent-landlord but due to his adamant attitude, the Authorities of the Pune Municipal Corporation also could not carry out repairs. It is to be seen here that Section 23 casts a duty on the landlord to repair the tenanted premises. In case the landlord neglects to repair the premises then Sub-section 2 of Section 23 permits the tenant to carry out the repairs and to deduct the amount spent for repairs from the amount of rent. In the present case, the tenant called upon the landlord to carry out repairs, but the landlord did not do so. The tenant offered to carry out the repairs himself but the landlord says in his deposition that he did not permit the tenant to do so. The tenant tried to repair the staircase through an intervention of the Authorities of the Pune Municipal Corporation but the landlord frustrated that attempt also. It thus becomes clear that because of the attitude adopted by the landlord and not for any fault on the part of the tenant, the tenant was deprived of the use and enjoyment of the entire demised premises. It is to be seen that the Supreme Court in its Judgement in Surendra Nath Bibra's case in paragraph 7 has observed thus :-

We are unable to agree with Mr. Chatterjee that the decision of the Privy Council in Ram Lal Dutt's case MANU/PR/0007/1942 can be distinguished on the ground urged by him. It is no doubt true that the Privy Council was concerned with an agricultural tenancy but the Privy Council decided the appeal on a matter of principle, the principle being that the doctrine enunciated in Neale v. Mackenize (1836) 150 ER 635 should not be regarded as a rule of Justice, equity and good conscience in India in all circumstances. It is interesting to note that the subject matter of the lease in (1836) 150 ER 635, was a dwelling house and land attached to it, and it was eight acres of the land which was attached to the house that the tenant had been kept out of possession. Be that as it may, in our opinion, the doctrine laid down in (1836) 150 ER 635, is too inflexible and cannot be applied to all cases. As observed by Sir George Rankin, the doctrine cannot be justified as a dependable rule to be adhered to notwithstanding hard cases. On the one hand it does not seem equitable that when a tenant enjoys a substantial portion of the property of the landlord, leased to him, without much inconvenience, he should not pay any compensation for the use of the property in other words, to borrow the language of 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 the 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 a proportionate part of the rent.

(emphasis supplied)

Thus it becomes clear from the observations of the Supreme Court quoted above, that the liability of the tenant to pay rent is linked to his enjoyment of the demised premises. In the present case the tenant-petitioner has been deprived of the enjoyment of the entire premises only due to the conduct and attitude of the landlord and therefore, in my opinion, the tenant's liability to pay the entire rent would stand suspended from the date from which he became unable to use and enjoy the tenanted premises. Bare perusal of Section 13(1)(k) of the Act makes it clear that if there is reasonable cause for not using the tenanted premises then a decree of eviction cannot be passed. In the present case there was definitely a reasonable cause for the tenant not to use the tenanted premises in the circumstances referred to above. So far as a decree under Clause (1) of Section 13(1) is concerned it contemplates the tenant to secure suitable residence. Section 13(1)(1) contemplates a voluntary act on the part of the tenant. When the tenant is forced to shift his residence and especially when the conduct of the landlord himself is responsible for forcing the tenant to shift his residence in my opinion, the landlord would not be entitled to seek decree of eviction against the tenant under Clause 13(1)(1) of the Act. In my opinion, the Courts below have neither appreciated the evidence on record properly nor they have applied law properly. So far as the judgment of the Calcutta High Court in the case of Jatindra Kumar Dass relied on by the learned Counsel for the respondents is concerned, in my opinion, the judgement does not consider the Judgement of the Supreme Court in Surendra Nath Bibra 's case referred to above. In any case the perusal of paragraph IS of that Judgement shows that ultimately the Court in that case found that there is no liability on the landlord to repair the tenanted premises and therefore, the tenant was not justified in suspending the payment of rent.

6. The learned Counsel for the respondents by relying on the provisions of Section 10(D) of the Act, contended that the tenant had a remedy of getting the premises repaired. But in my opinion, it is not the question of tenant's having a remedy to get the premises repaired. The question is. the landlord entitled to a decree of eviction against the tenant. The tenant is deprived of the enjoyment of the property by a conduct which is attributable directly to the landlord and therefore there occurs suspension of the liability of the tenant to pay the rent. In my opinion, the tenant had done all within his powers, namely, issuing notice to the landlord to carry out repairs, offering to carry out repairs himself and moving the authorities of the Pune Municipal Corporation. But it is only because of the adamant attitude adopted by the landlord, that repairs could not be carried out. At this stage, now the landlord cannot turn around and say that despite his refusal and his attitude, the tenant could have on his own done the repairs. In my opinions the Courts below were not justified in passing the decree of eviction against the petitioner-tenant. It is to be seen that Section 23(1) casts a duty on the landlord to keep the premises in good and tenantable repair. The landlord committed breach of this statutory duty imposed on him. Sub-section 2 of Section 23. enables the tenant to carry out the repairs, after giving notice to the landlord, The tenant in this case, issued necessary notice to the landlord and then wanted to carry out the repairs, but the landlord did not permit him to do so. This attitude was adopted by the landlord, obviously, to force the tenant to leave the suit premises. Now, in my opinion, to pass a decree in favour of the landlord, on the ground that the tenant has not paid rent for the period during which he could not have occupied the suit premises and also on the ground that he did not continue In occupy the premises and sought shelter elsewhere, would amount to allowing the landlord to take advantage of his own wrong.

7. In the result, therefore, the petition succeeds and is allowed. The orders of both the Courts below, namely, the Order dated 30.10.1982 passed by the 10th Exira Assistant Judge and Assistant Sessions Judge. Pune in Civil Appeal No. 128 of 1980 and the judgement and decree dated 14.11.1979 passed by the Additional Judge, Small Cause Court. Pune in Civil Suit No. 2163 of 1974 are quashed and set aside. The respondents to pay the cost of the petition to the petitioner.

Certified copy expedited.


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