UPENDRA NATH GARAI Vs. HARIHAR SAHA

JUDGEMENT

(1.) THIS Rule is directed against an order passed by the judge of the Court of Small Causes, Sealdah, decreeing in part the claim of the plaintiff petitioner for recovery of arrears of rent at the rate of Rs. 50 per mensem. The total claim, of the plaintiff was Rs. 400 being the alleged arrears for 8 months from Jaistha to Pous, 1350 B. S. The Defense of the defendant opposite-party was that the tenancy comprised three rooms and the plaintiff landlord pulled down the roof of two of the rooms in Bhadra, 1360 B. S. on the pretext of reconstructing the roof and as he did not reconstruct it, the opposite-party was virtually dispossessed from two of the rooms of the tenancy. He, therefore, pleaded suspension of rent. This plea was upheld with effect from Bhadra, 1360 B. S. and the learned judge passed a decree for a sum of Rs. 150 being arrears of rent for three months when the tenant opposite party was in undisturbed possession of the entire premises. The plaintiff landlord has challenged the propriety and legality of this order in revision.

(2.) MR. Das Gupta, appearing on behalf of the landlord petitioner, raised two-fold contentions before me. He submitted, in the first place, that even according to the allegations of the tenant opposite party this was a case of repair without which the premises would not be habitable and the remedy given to the tenant is contained in section 38 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 and as the tenant has been provided with a special statutory relief, he cannot be given any relief outside the statute by way of suspension of rent.

(3.) IN this connection I may give a brief analysis of section 38 of the above Act. There are three sub-sections in this section. Sub-section (1) empowers the tenant to move the Rent Controller for issuing a notice on the landlord requiring him to make such repairs as he is bound to make to the premises or to take any measures for the due maintenance of any essential supply or service. Sub-section (2) authorises the tenant himself to make the repairs or to take necessary measures for the due maintenance of an essential supply or service within an estimate to be fixed by the Controller on the failure of the landlord to do the same. This subsection also lays down the manner of deducting such expenses as may be incurred by the tenant from the rent of the premises. Sub-section (3) deals with repairs or measures of a comparatively important nature without which the premises would not be habitable or fit for use. I may quote this sub-section here in extensor: