BANSI SAH Vs. KRISHNA CHANDRA

JUDGEMENT

(1.) These four second appeals arise out of three suits for rent & one title suit. The Cts. below dealt with the four suits, & the first appeal arising therefrom, by one judgment. We have also heard the four appeals together, as they raise a common question of law & fact, & the present judgment will govern all the four appeals.

(2.) The relevant facts are the following. In the three suits for rent, the applts. were the defts. & in the title suit the applts. were the pltfs. The suits related to a pucca, one storeyed, brick-built house with the premises thereof, bearing holding No. 126 in ward No. 3 of the Muzaffarpur Municipality. The aforesaid house & premises were leased for a term of ten years by means of registered lease dated 31-1-1928, at a monthly rental of Rs. 75. The lease was in favour of one Jagdish Chandra Mitra, who got possession, started an ice factory in the building & premises & paid the stipulated rent per month. In July 1930, Jagdish Chandra Mitra transferred his leasehold interest to the present applts. who also came in possession, & continued to work the ice factory on payment of the stipulated rent. Sometime after, they fell in arrears of rent & had some financial difficulty in running the ice factory. On 10-1-1935, they executed a mortge. bond for Rs. 4000 in favour of the resps., a part of the consideration of which went towards the payment of arrears of rent up to December 1934. On 15-1-1934, the great earthquake of Bihar took place, and the case of the applts. was that the buildings suffered serious damage & part of it fell down as a result of the earthquake shock. According to the contract, as embodied in the lease of 1928 the lessor (that is, the resp.) was to make all repairs of bigger dimensions other than petty repairs & white washing". The case of the applts. was that the lessor had failed to effect necessary repairs even after notice in 1939. It appears that after 1934 rent was not amicably paid, & the resps. had to bring suits for arrears of rent. Two such suits were brought, previews to the present suits, in which decrees were obtained by the resps. The money suits out of which three of the appeals have arisen related to three different periods from March 1939 May 1942, for which the resps. claimed arrears of rent at Rs. 73 per month plus interest thereon In these three suits various defences were taken by the present applts., some of which are no longer of any importance. One of the defences was that the applts. were entitled to a set off of Rs. 1268-13-0 on account of certain acts done by them, such as the filling up of some (SIC) land by the deposit of engine ash, supply of ice, etc. Another defence was that there was a verbal agreement between the parties that the rent would be reduced to Rs. 50 a month on account of the damage dorm by the earthquake. A third defence was to the effect that the present applts. had suffered loss as a result of the failure to effect repairs, &, therefore, the Ct. should fix a proper rent for the building & premises. The first two defences are no longer of any importance, because of the findings arrived at by the Cos. below, and learned counsel for the applts. has frankly conceded that he is no in a position to press them at this stage. It is the third defence, embodied in a supplementary written statement, which is of importance in these appeals. As I shall have serious comments to make about the nature of this defence, I had better quote the words of the written statement, so far as the third defence is concerned :

(3.) The learned Munsif who dealt with the four suits in the first instance came to the following findings. Firstly, he found that no such major damage was caused to the building or premises, as would require to be repaired by the lessor under the terms of the lease. Secondly, he found that assuming that there was such damage, it was not open to the applts. to ask for either reduction or abatement of year, or assessment of fair & equitable rent. The learned Munsif pointed out that admittedly the provisions of the T. P. Act applied, & under those provisions it was not open to the applts. to ask for either reduction of rent or assessment of fair & equitable rent. On these main findings, the learned Munsif decreed the three money suits in which rent had been claimed, & dismissed the title suit of the applts. Appeals were preferred to the learned Dist. J. who was not satisfied with the finding of the learned Munsif that no major damage was (SIC) He thought that further evidence should be taken on the point of damage, & an attempt should be made to assess the amount of damage, if any, He did not definitely express himself on the question if a reduction of rent should be given in the circumstances, but left that question to be agitated in the Ct. below. He passed an order of remand for the purpose of taking fresh evidence on the questions mentioned above. Against this order of remand, applns. in revn. were filed to this Ct. which were disposed of by Ray J. in his order dated 9-5-1946. So set aside the order of remand, & recast one of the issues, namely, issue 5; in the following way : "Are the pltfs. of the title suit entitled to get any abatement of rent originally contracted for, &, if so, at what rate" It was made clear, however, that no opinion was expressed on the question if the applts. were in law entitled to any suspension or abatement of rent. It was also made clear that no fresh evidence was to be given, & the question of the right to any abatement of rent was to be considered on the evidence already given. The cases then went back to the first Ct. of appeal, & were dealt with by the Addl. Dist. J. who, by his judgment dated 31-1-1947, affirmed the findings of the learned Munsif that no major damage was caused & further, that the applts. were not entitled to any reduction or abatement of rent.