P K ROY Vs. BIMALA MUKHERJEE

JUDGEMENT

(1.) THE landlord opposite party instituted a suit for recovery of possession of the flat held by the defendant petitioner as a tenant at a monthly rent of Rs. 450/- according to English calendar, on ground of default in payment of rent since March, 1973. The defendant petitioner on entering appearance filed a petition under section 17 (1) of the West Bengal premises Tenancy Act and has been depositing current rent or damages equivalent to rent every month. The petitioner also filed an application under section 17 (2) of the Act raising a dispute as to the amount of rent payable by him in view of the deliberate total stoppage of water in the tenanted premises by the landlord since January, 1973 and prayed for determination of the amount of rent payable by him. By order No. 19 dated May 19, 1975, the learned Munsif rejected the petitioner's prayer for stay of hearing of the petition under section 17 (2) of the act till the decision in the proceeding pending before the Rent Controller for stoppage of water. The court also rejected by order No. 20 of same date the application of the defendant petitioner for adducing evidence in support of his application under section 17 (2) on the ground that there is no scope for determination of question of suspension of rent in such application. In regard to the petition under section 17 (2), the court noticed that there was no dispute about the rate of rent and that the petitioner was in arrears from March, 1973. It was held that there is no provision in the Act or in the Transfer of Property Act providing for suspension or abatement of rent by the tenant where his landlord interferes with amenities like supply of water. It was accordingly held further that the petitioner had no right to withhold payment of rent when there is no dispute regarding the rate of rent when or the amount payable. The petition under section 17 (2) was accordingly rejected.

(2.) BY the same order some other applications, filed by the petitioner under section 17 (2a) (a) were disposed of and in this Rule we are not concerned with the same. The petitioner has obtained this Rule challenging the propriety of the order rejecting his application under section 17 (2) of the Act as also his other application for adducing evidence in support thereof.

(3.) MR. Lahiri, learned advocate appearing for the petitioner, submitted that the learned Munsif was in error in thinking that in an application under section 17 (2) of the Act, the tenant is not entitled to plead suspension of rent at least partially when by a deliberate or tortious act the landlord suspends an essential amenity. In support, he relied on an unreported decision of A. C. Gupta, J. of this court (as his Lordship then was) in c. R. No. 99 of 1970 (K. P. Moulik v. Sm. Harimanjuri Dassi) decided on May 31, 1971. In that case, it was found that the landlord had deliberately disconnected electricity where rent was inclusive of electricity and supply of filtered water, which was an amenity with the tenancy, was also subsequently discontinued. There was also no dispute that the tenant was admittedly in arrear. His Lordship observed: