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First Appeal No. 41 of 1960, decided on 28th January 1963.

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S. 18-Non payment of rent-Tenant suffering partial ouster at instance of landlord-Whether and when entitled to claim total suspension of rent-Tenant sub-letting portions of demised premises to sub tenants-Sub-lessees subsequently, attorning directly to landlord over head of tenant-Tenant, under circumstance, cannot claim total immunity to pay rent.

5 C W N 353;11 CLJ 591;13CLJ115andILR24 Cal. 296 considered.

23 M L J 119 ref.

P L D 1952 Dacca 57 approved.

M. A. Saeed for Appellants.

S. Ali Raza for Respondent.

Dates of hearing: 16th, 17th and IM January 1963.

An interesting question of law arises in this first appeal. The question of law is whether there is a total suspension of liability on the part of the tenant to pay rent where he has suffered a partial ouster actual or constructive at the instance of the landlord.

2. The material facts are these. The predecessor-in-title of the defendants in this suit let out the first floor of the premises bearing No. 799/7 situated in Catholic Colony No. 2 at Karachi along with a garrage and two servants quarters to the plaintiff Phillips Mathews in the year 1947 at a monthly rent of Rs. 70. In or about the year 1949, the tenant Phillips Mathews sublet portions of these premises to three sub-tenants, namely, (i) Mathai, (ii) Ooman and (iii) Chandi. Dispute having arisen between the sub-tenants and the tenant Mathews with regard to the rate of monthly rent payable by the former they attorned directly in favour of the landlord over the head of Mathews. The first attornment took place by Mathews with effect from 1 st April 1953 and the other two sub-tenants followed suit in the year 1954. Mathews stopped paying any rent at all to his landlord, the late Mr. Lobo, whose successors-in-title are the present defendants, On 27-6-56 the landlord determined the tenancy of Mathews b5 a notice to quit and followed it up on 22-8-56 by an application under section 18 of the Karachi Small Causes Court Act for the possession of the premises on the ground that the tenant was not ready and willing to pay rent. This was ejectment application No. 379/56. On 18-11-56 the Chief Judge, Small Causes Court passed an order of possession in favour of the landlord but he directed that if the tenant Mathews paid the rateable amount of rent due by him within 6 months the order for possession will not be executed. On 12-3-59 Mathews filed a suit under section 24 of the said Act claiming that he was not liable to pay rent as the landlord had allowed the sub-tenants to attorn to him directly and that the latter's application under section 18 of the Act amounted to an act of trespass for which he was entitled to compensation. Under the provisions of the Karachi Small Causes Court Act if the suit under section 24 succeeds it supersedes the order of possession passed under section 19 of that Act. This suit (Civil Suit No. 724/59) was tried by the learned District Judge, Karachi who granted a decree in favour of the plaintiff Phillips Mathews, the tenant. The defendant landlords have come up in appeal to this Court.

3. The facts stated above are not in dispute, and at the hearing of this appeal it was agreed by the learned counsel of the parties that the question, upon the determination of which the result of this appeal must depend, is whether in the circumstances of the case the respondent-tenant was entitled to claim total suspension of rent by reason of the attornment by the three sub-tenants in favour of the landlord in respect of a part of the premises demised to the tenant Mathews. This was also the approach of the learned District Judge who observed that all the issues in the case hinge and depend upon the main issue No. 6' which he had framed as follows:

"Issue No. 6-Does the doctrine of suspension of rent apply in this case "

In fact, the expression "total suspension of rent" should have been used in this issue, because the landlord was claiming only the proportionate rent after adjusting the rent paid by the sub tenants.

4. The learned District Judge recognised the fact that the doctrine of suspension of rent does not find place in the Transfer of Property Act, but he held, and rightly so, that the doctrine applies on the principles of equity, justice and good conscience. Reliance was placed before the learned Judge on behalf of the plaintiff on several decisions of the Calcutta High Court, within whose territorial jurisdiction the principle referred to above seems to have been mainly applied. The learned District Judge quoted extracts from those decisions and relied upon them for the purposes of the finding which he eventually reached. These extracts may conveniently be reproduced :-

V Calcutta Weekly Notes 353

"The law does not require that there should be complete eviction of the lessee in order that he may be exempted from liability to pay rent."

XI Calcutta Law Journal 591

"The doctrine of suspension of the entire rent by reason of even of partial eviction, does recognise the position that the landlord may properly be deprived of the whole rent, even though the tenant has been in occupation of a portion of the lands of the tenancy. This doctrine may be applied in the case of reclamation leases."

XIII Calcutta Law Journal 115

"Where there is a partial eviction of a tenant by reason of interference by the landlord with the enjoyment of a substantial portion of the lands of the tenancy, the entire rent is suspended during the whole period for which the eviction has continued in operation."

I L R XXIV Calcutta 296

"Where the act of a landlord is not a mere trespass, but something of a graver character, interfering substantially with the enjoyment, by the tenant, of the demised property, the tenant is entitled to a suspension of rent during such inter ference, even though there may not be actual eviction.

If such interference be committed in respect of even a portion of the property, there should be no apportionment of rent where the whole rent is equally chargeable upon every part of the land demised.

But if the interference is in respect of only a certain portion of the demised property the rent for which is separately assessed, there should be apportionment."

5. On behalf of the defendant-landlords reliance was placed before the learned District Judge mainly upon two cases. These are reported in 23 M L J 119 and P L D 1952 Dacca 57. The latter decision is by a Bench of the Dacca High Court consisting of Justice Shababuddin and Amiruddin, J., as they then were. In the Madras case the view taken was that non-delivery of possession of the premises was not a good answer to a suit for rent and actual or constructive eviction of the tenant from the entire holding was a good plea in answer to a suit for rent by the landlord. It was, however, held that partial eviction, that is, eviction from a part of the holding was no answer to a suit for rent to the extent of the portion in the enjoyment of the tenant. The learned District Judge has not dealt with this case but he produced the relevant extracts from the judgment of the Dacca High Court which contained the ratio of the decision and has attempted to distinguish it from the present case. The quotation from the decision of the Dacca High Court may be conveniently reproduced

"The doctrine of suspension of rent can only be applied in this country as a principle of equity, justice and good conscience, and as such its application will be made to cases irrespective of the fact as to whether it is a case of lump rental or of rent of so much per bigha.

Where beyond proving that he was dispossessed of about two thirds of the land of the tenancy and of the better quality of land, the tenant-defendant did not show or attempt to show that by the reason of his dispossession the beneficial. enjoyment of the portion of the land left in his possession was interfered with, and he failed to avail himself of the ordinary remedy available to him under the law.

Held, it was not a fit case in which the doctrine of suspension of rent should be applied.

From the mere fact of a compact block of land, two -thirds having taken away leaving only inferior land for the cultivation of the tenant, there may not be an inference that the practical effect of the deprivation was to interfere with the land left."

The learned District Judge distinguished the present case mainly upon the ground that the tenancy in the present case was in respect of a residential premises while the tenancy in the Dacca case was agricultural. He also observed that the tenancy in this case was indivisible; that the whole of the premises had been let out to the plaintiff and on the facts and the circumstances of this case there was a clear interference by the landlord with the due enjoyment of the premises demised. He further observed that the subject-matter of the present tenancy as well as the rent was indivisible and any interference by the landlord such as happened in this case by accepting attornment from the sub tenants, amounted to interference with the due enjoyment of the premises demised. In view of this conclusion he held that the tenant was justified in refusing to pay any rent to the defendant in view of the doctrine of suspension of rent and, therefore, the defendant (landlord) was not entitled to the possession of the premises and his application under section 18 must be deemed to be an act of trespass. He accordingly decreed the plaintiff's suit which would have the effect of superseding the order of possession passed by the Chief Judge, Small Causes Court under section 18.

6. We have heard Mr. Muhammadali Saeed for the appellant and Mr. Ali Raza for the respondent and we have come to the conclusion that the judgment of the learned District Judge cannot be sustained. The doctrine of the suspension of rent is applicable only upon the grounds of justice, equity and good conscience, and the question that we have asked ourselves is whether in the circumstances of the present case the tenant respondent can claim in equity, justice and good conscience a total immunity with regard to the payment of rent to the landlord. Let us examine the facts. It was the respondent himself who had sublet portions of the premises demised to him to the three sub tenants. This happened as far back as 1949 and there was no question of any interference of the enjoyment by him of the portion of the premises retained, and had it not been for the fact that dispute about rate of rent arose between him and his sub-tenants, there might, in all probability, have been no, trouble at all. It is true that upon such difference having arisen, the sub-tenants attorned to the landlord over the head of the tenant from whom they had taken their portions on sub-lease. But can it, from these premises, be effectively urged that by virtue of such attornment the tenant can refuse to pay any rent at all to the landlord even though he continues to enjoy the portion in his possession upon the ground that there has been a constructive partial eviction. It would be noted that even in those decisions of the Calcutta High Court which have been cited by the learned District Judge there are observations which go to show that there must be substantial interference with the enjoyment of the tenant by the fact of his partial eviction by the landlord in order that the principle of suspension of rent can become applicable. But i f it was intended to be laid down that merely because the rent was in a lump sum or that the holding was not distinctly divisible as such, there must, in case of every partial eviction of the tenant, result a total immunity of the tenant from paying any rent at all, though he continues to enjoy the portion in his premises, then with respect we must disagree. We do not see how such a result can be achieved upon the basis of justice, equity and good conscience. The correct principle, if we may say so with respect, was applied by their Lordships of the Dacca High Court in the case cited above. The ratio of that decision is that notwith standing the partial eviction of a tenant if such eviction does not impair the enjoyment by the tenant of the residue and of which he continues in possession, he would not be entitled to claim total suspension of rent. In that case the tenant had been dispossessed of the 2/3rd of the land demised to him. This portion was of better quality and the 1/3rd left with the tenant was of inferior quality, but the tenant did not show or attempt to show that by the reason of his dispossession the beneficial enjoyment of the portion of -land left in his possession was interfered with. Upon these facts the tenant was held to be liable to pay rateable rent.

7. We agree with the learned District Judge that cases of tenancy in respect of agricultural land may be distinguishable from the cases arising out of tenancy in respect of residential premises. For instance, if a landlord forces himself into a part of a residential premises let out by him on rent or he causes partial dispossession by putting in somebody else into the premises demised to the tenant, the tenant may be justified in a given case to refuse to pay any rent at all, but this he can only do if he proves that such partial eviction has impaired the beneficial use by him of the portion left in his possession. If on the other hand the tenant continues to make use of such portion, he cannot, merely upon proof of such partial eviction, claim total immunity from payment of any rent at all. In the present case, it was the tenant himself who let out the portions in question to the sub-tenants. He made no attempt to prove that by the attornment of the sub-tenants to the landlord his beneficial use of the remaining portion had been impaired. In fact, such an attempt would have been futile in the circumstances of this case. Mr. Ali Raza, his learned counsel, urged before us that at the time when these premises were sublet, the tenant was riot married and now he has got married and bona fide needs the premises which had been sublet by him and in respect of which the landlord has accepted attornment from the sub-tenants. Well, if that is so, it was open to the tenant to take steps for the eviction of the sub-tenants. He could have also instituted a claim for damages against the landlord if such a claim could validly be made. These remedies were open to him under the law, but as far as his claim for total immunity to pay any rent is concerned it could only have been available to him if he could have established that the beneficial enjoyment of the residue had been materially impaired. This, as we have pointed out, could not have been done in the circumstances of the present case in view of the fact that he had himself had sublet the portions in question.

8. It was next urged by Mr. Ali Raza that the rent in this case was indivisible and the Chief Judge, Small Causes Court was not justified in apportioning the liability of the respondent at the rate of Rs. 40 per month. The learned Chief Judge, Small Causes Court did so upon the basis of what was being received by the landlord from the sub-tenants which was the same amount which the tenant himself had received from the sub-tenants before the latter attorned to the landlord. But be that as it may, this argument losses all its force because it was not the case of the tenant that he was not liable to pay Rs. 40 per month. His case was that he was not liable to pay any rent at all. In these circumstances the order of the Chief Judge, Small Causes Court for possession was justified. On the refusal of the tenant to pay any rent at all the landlord was entitled to an order for possession and the tenant's suit under section 24 was bound to fail.

9. No other point was urged before us and in view of the conclusion that we have reached we allow this appeal and set aside the judgment and decree passed by the learned District Judge with the result that the order for possession passed in favour of the landlord under section 18 of the Karachi Small Causes Court Act shall hold the field. The appellant will have his costs in this Court as well as in the Court below from the respondent.

K. B. A.

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