HARISHCHANDRA Vs. BHONRILAL

JUDGEMENT

(1.) THIS is a Civil Second Appeal in a suit for ejectment and arrears of rent. The case of the plaintiff-respondents Bhonrilal and Damodar as laid in the plaint is that on 6th June, 1951, they had given certain rooms in their house on lease to the defendant-appellant Harish Chandra on monthly rent of Rs. 17/8/- according to Hindu calendar. The defendant-appellant did not pay rent from 3. 3. 54 to 26. 12. 1954 and the plaintiff had to file a suit for the recovery thereof and that suit was dismissed on the payment of the entire amount of rent due with costs on 10. 1. 1955. Thereafter, the defendant-appellant filed a suit for fixation of standard rent in the court of the Munsiff, Jaipur East which was dismissed on 23. 1. 1956 but on appeal by the defendant-appellant the plaintiff-respondents agreed to the fixation of standard rent at Rs. 15/- per mensem and the appellate court ordered fixation of rent at that rate from 7. 1. 1955. During the course of the pendency of the suit for the fixation of standard rent, the defendant appellant had deposited Rs. 80/- in the court of the Munsiff, Jaipur East. It is further alleged that the defendant-appellant did not pay rent from Pos Sudi 2, Sambat 2011 corresponding to 26. 12. 1954 to Kartik Sudi 1, Sambat 2014, corresponding to 9. 10. 1957 for 35 months at Rs. 15/- per mensem. The plaintiff-respondents served a notice on 6. 9. 1959 determining the lease and asking the defendant-appellant to quit. They claimed a decree for ejectment and also for Rs. 525/- as arrears of rent. The defendant-appellant admitted the tenancy and also the fact that standard rent was fixed at Rs. 15/- per mensem. He, however, controverted the contention of the plaintiffs that rent for 35 months was due. His contention is that rent for 34 months was due from 7. 1. 55 to 7. 11. 57. He pleaded that he had sent money order for Rs. 235/- to the plaintiff-respondents but it was refused. He also pleaded that the plaintiff-respondents had stopped the facility granted to him as part of the lease of taking water from the tap fixed in that house in May, 1955 and for this the defendant-appellant had to take action against the plaintiff under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, in the court of the City Magistrate, Jaipur, who ordered the restoration of this facility to the defendant-appellant on 24. 4. 1957 and this order was upheld by the Additional Collector, Jaipur City in the appeal filed by the plaintiff-respondents. According to the defendant-appellant on account of the stoppage of this facility, he had to bring water from the municipal tap and on that account he suffered damages to the extent of Rs, 528/- which he was entitled to set off against the claim for rent. Alternatively, it is pleaded that the stoppage of facility of drawing water has disturbed the peaceful and full enjoyment of the property demised by the defendant-appellant and for this reason, the entire rent from May, 1955 should be deemed to have been suspended. The trial court decided on 4. 11. 1959 that his plea for damages could be examined only if he filed a counterclaim tor the same. The defendant-appellant thereupon filed a counter-claim for the recovery of Rs. 528/- as damages, as alleged hereinbefore and also for grant of relief for suspension of rent. In the counter-claim the plaintiff claimed a decree for Rs. 528/- and also tor a permanent injunction that the plaintiff should restore the facility of water from the tap fixed in the house of the plaintiff. In reply to this counter-claim, the plaintiff-respondents; pleaded that the facility for drawing water had no relation with the lease and for this the defendant-appellant had to pay separately Rs. 1/8/- per mensem. It was further pleaded that this facility was withdrawn when the defen-dant-appellant did not pay the dues for grant of that facility for six months. It was also pleaded that the defendant did not suffer any damages on account of the withdrawal of the facility of taking water from the tap.

(2.) BOTH the claim of the plaintiff and the counter claim ' of the defendant were consolidated and were tried together. The suit of the plaintiff-respondents tor ejectment was dismissed on the ground that the defendant-appellant was not a defaulter within the meaning of sec. 13 (l) (a) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The suit for arrears of rent was dismissed on the ground that the defendant-appellant was entitled to immunity from payment of rent as there had been substantial interference by the plaintiff-respondents with the enjoyment of the demised property, and on that account there had been constructive eviction of the defendant-appellant from the demised property as water supply which was one of the essential services for the enjoyment of the tenancy was illegally withdrawn by the plaintiff-respondents. The defendant-appellants' suit for damages was dismissed on the ground that the defendant-appellant could not be allowed damages as he had already been granted relief of suspension of the entire rent, Taking this view of the matter, the suit of the plaintiffs was dismissed with costs by the trial court and a decree was passed in favour of the defendant by ordering that the defendant would not be liable to pay rent from 7. 1. 1955 so long as the plaintiffs did not supply water from the tap and the rent shall stand suspended till then. A mandatory injunction was also issued against the plaintiffs directing them to restore water connection. The counter-claim of the defendant was dismissed.