Calcutta High Court (Appellete Side)
Swapan Kumar Bhadra vs Aniruddha Ghosh on 20 February, 2019
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE BEFORE:
The Hon'ble Justice SAHIDULLAH MUNSHI C.O. No.1677 of 2018 SWAPAN KUMAR BHADRA ... Petitioner
- Versus-
ANIRUDDHA GHOSH ... Opposite Party Mr. Sarathi Dasgupta, Mr. Arijit Basu ... For the petitioner Mr. Sourav Sen, Ms. Sayani Bhattacharya ... For the opposite party Heard on : 07.12.2018, 11.01.2019 & 16.01.2019. Judgment on : February 20, 2019. Sahidullah Munshi, J.:-
This revisional application is directed against order no. 71 dated February 20, 2018 passed by the learned Civil Judge, (Junior Division), 4th Court at Alipore, South 24-Parganas in Ejectment Suit No.207 of 2010, thereby rejecting the defendant/petitioner's application under Section 7(2) read with Section 7(2A) of the West Bengal Premises Tenancy Act, 1997 (hereinafter to be referred to as the 'said Act'), praying for suspension of rent on the ground of non-supply of water into the tenanted premises. The opposite party filed a suit for ejectment being Ejectment Suit No.207 of 2010 against the defendant/petitioner. In the said suit the defendant/petitioner filed an application under Section 7(2) read with Section 7(2A) of the said Act and prayed before the learned Court below to adjudicate and/or determine as to whether there are arrears of rent payable by the defendant and in the event any arrears were found, the defendant might be allowed to recollect the same by easy monthly instalments and also to adjudicate whether defendant is entitled to abatement of rent in the facts and circumstances pleaded before the Court. In the application under Section 7(2) read with Section 7(2A) of the said Act the petitioner made out a case that according to the tenancy agreement, the landlord agreed to supply water to the suit premises but due to mechanical device operated by the landlord, regular normal water supply was disrupted at the instance of the landlord, as a result, the petitioner/defendant had to take water through 'Bhari' at the cost of Rs.350/- per month and, therefore, proportionate amount of rent should be suspended accordingly. To such an application the plaintiff/landlord filed an objection and in paragraph 9 of the said objection the plaintiff has stated that - "... there was a settlement between the late Mr. Ghosh and defendant that the water supply from the overhead tank will be stopped and the defendant will get direct water supply from the Municipal tap water in the ground floor." The settlement was done in or about 1995 and there was no protest or objection raised by the defendant during the lifetime of the previous landlord, Mr. Ghosh, who died on 11.02.2005. The plaintiff/landlord further stated in paragraph 9 that this objector further denies that there was no sufferings by the defendant related to the water problems as alleged by the defendant on the reason that there was no scarcity of water in the suit property as he was provided direct water supply from the K.M.C. and this system is continuing since 1995-96."
The defendant/petitioner appeared before the Court and allowed him to be cross-examined by the plaintiff. But the plaintiff did not appear in the box and never gave any opportunity to the defendant to examine him. The learned Judge, on consideration of the documents exhibited in the proceeding and taking into consideration of the evidence on record, observed on the basis of the report of the Advocate Commissioner that the mechanical device had been newly installed on the North-Western portion of the courtyard on the supply line of the K.M.C. water which leads to the underground reservoir. The supply of K.M.C. water is totally controlled by the said stop-clock/device and the same is under direct control and operation of the plaintiff. Learned Court observed that it is the duty of the defendant to prove his own petition and cannot succeed on the weakness of the plaintiff. According to the learned Judge, since it is the case made out by the defendant that he has paid Rs.350/- per month to the 'Bhari', it is the duty of the defendant/petitioner to prove the said fact and unless that is proved, he cannot claim abatement, although, on the evidence and other facts discussed in the impugned judgment the learned Court has accepted that there has been disruption of water supply.
Learned Advocate appearing on behalf of the defendant/petitioner has relied on the following decisions:
• Surendra Nath Bibra - Vs. - Stephen Court Limited reported in AIR 1966 SC 1361;
• P.K. Koy - Vs. - Sm. Bimala Mukherjee reported in 1976 CHN 666. In Surendra Nath Bibra (supra) it was defendant's case that relying on the representation and assurance of the plaintiff that three bedrooms, two bathrooms etc. would be available to the defendant in Flat No. 17 he executed a lease on April 30, 1956, for a period of 21 years, but the plaintiff put him in possession only of two bed rooms and not three, and according to him, in the circumstances he was entitled to suspend the rent altogether.
This decision, however, is not on the fact in issue in our case. More so, in the said decision the Hon'ble Apex Court held that it would be unfair if a tenant is not given possession of a substantial portion of property letting out to him, he should be asked to pay any compensation for the use of the property while he is taking appropriate measures for specific performance of the contract. The Hon'ble Apex Court held it will depend on the circumstances of each case where a tenant would be entitled to suspend payment of the rent or whether he should be held liable to pay proportionate part of the rent. Ultimate conclusion of the Hon'ble Apex Court is "On the facts of this case we are of the opinion that the tenant is not entitled to suspend the payment of rent but he must pay a proportionate part of the rent." Therefore, the decision does not apply in the present case.
In P.K. Koy (supra) the fact involved is like this: The landlord/opposite party instituted a suit for recovery of possession of a flat held by the defendant/petitioner as a tenant on ground of default in payment of rent. The defendant entered appearance and filed an objection under Section 17(1) of the West Bengal Premises Tenancy Act, 1997 and started depositing current rent or damages equivalent to rent every month. 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 deliberate total stoppage of water in the tenanted premises by the landlord and prayed for determining the amount of rent payable by him.
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 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 determining the question of suspension of rent in such application. The defendant/petitioner filed a revision and obtained a 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. On consideration of various facts the Court held that-
"Learned Munsif was in error in thinking that such question relating to suspension of proportionate abatement of rent are outside the scope of Section 17(2) of the West Bengal Premises Tenancy Act. The provisions of the said Act are only supplemental to the general law and its provisions apply in modification of the general law only when there is any provision to that effect. Considering of the pleas of suspension of rent under general law has not been excluded by the Act...."
This Court, to some extent, supports the contention of the petitioner regarding suspension of rent in a case where even partially the tenant's enjoyment to the suit property was suspended and/or interfered with by the landlord, even though there is no physical eviction from the suit property. This decision, however, supports the proposition advanced by the petitioner regarding suspension and/or abatement of proportionate rent, where the tenant is deprived of enjoyment of the suit premises but the amount so to be determined depends upon the evidence on record. The suspension so pleaded can get support proportionate to the suspension of enjoyment of the suit premises at the instance of the landlord not for any fault of the tenant.
It is undisputed that the pleading which the plaintiff has made in his objection to the defendant/petitioner's application for suspension of rent, is merely on affidavit but the plaintiff, in order to controvert the stand taken by the defendant, has not deposed before the Court, nor did he allow himself to be cross-examined by the defendant. Although, a plea has been taken that by virtue of a settlement it was agreed by the defendant that he will draw water directly from Corporation supply line, not from the overhead tank but this fact has not been proved by the plaintiff. Once the petitioner/defendant has discharged his initial burden that he is not getting water supply in his tenanted premises evident from the report of the Advocate Commissioner, initial onus should be deemed to have been discharged by the defendant/petitioner and such onus shifts upon the plaintiff to prove that the statement which has been made by the defendant in his application that he took water through 'Bhari' is a false and concocted story. Therefore, the defence taken by the plaintiff as against the petitioner's application remains uncontroverted. Whether the amount which has been spent by the petitioner is the correct figure mentioned in his application or not, requires proof but when the plaintiff keeping himself away from the witness box did not offer himself to be examined cannot doubt the same. At the same time it is undisputed that the defendant, while on the box, was thoroughly cross- examined by the plaintiff and he never gave any suggestion that the statement of the defendant regarding drawing of water through 'Bhari' is false. If no suggestion is given the presumption must be drawn adversely against the plaintiff and that has rightly been observed by the learned Court below. Therefore, the observation made by the learned Court below that the defendant has to prove his case no doubt true but in the facts and circumstances, particularly, in the context of the provision of shifting of onus within the meaning of Section 101 to Section 103 of the Evidence Act, the observation so made by the learned Court below appears to be not correct. Therefore, in my view, the learned Court below ought to have held that the petitioner/defendant was able to discharge his initial burden of proof and once that initial onus was satisfactorily discharged, the onus shifts to the plaintiff to prove by giving evidence that whatever the defendant pleaded in his application were all false. Having not done so, it cannot be held that the defendant/petitioner could not prove his case.
Looking at the pendency of the ejectment suit since the year 2007, I am not inclined to send the matter back on remand to allow the parties to litigate for another few years. In such a case it is desirable that Court should try to expedite the hearing of the case particularly when it is evident from record that it is the plaintiff's allegation that by filing such applications, the defendant wants to frustrate the plaintiff's claim. Therefore, it is necessary to determine the amount of rent to be suspended.
Now the question comes what should be the quantum of abatement? From the evidence of the defendant it appears that he has admitted on the day of his cross-examination, that is, 20th November, 2017 that "near about 5-6 years back I shifted to my newly residential house" which means that from 2011 onwards the tenant had not been residing in the suit premises. In the next paragraph the defendant further admitted that "it is a fact that I shifted my family partially before 8-9 years ago and thereafter, I shifted my family 6 years back in the newly residential house." This suggests that the tenant was in partial occupation of the tenanted premises since 2008.
Therefore, in my view, the learned Court below ought to have held that the tenant was not entitled to any abatement since 2011 onwards but he was entitled to abatement from 2000 onwards inasmuch as it appears from Exhibit-3 that first complaint was made before the Corporation on 25th October, 2000, although, such a complaint was made and as it appears from the order dated 25th October, 2000 issued by the Executive Engineer, Water Supply Department, Kolkata Municipal Corporation (page 75 of the petition) that there was no normal supply to the tenant, although, supply to the premises was found to be normal. However, the defendant could not prove this letter inasmuch as the author of the letter was not called before the Court to give evidence. Therefore, the most logical conclusion would be the day when the application under Section 7(2) of the said Act was filed before the Court will be reckoned for the purpose of suspension of rent for non-supply of water to the tenanted premises and it will continue till 2011. The application was presented before the Court on 30th June, 2011. Therefore, from June 2011 to December 2011 should be the period for which the proportionate rent should be considered to be suspended for, the tenant could not enjoy the tenanted premises for no fault on his part. I arrive at this conclusion that the tenant is entitled to the abatement for the reason that the plea taken by the defendant for the first time before the Court in June, 2011 and that he was not getting water supply in his tenanted premises and in defence the plaintiff in paragraph 9 of his objection (Annexure-D at page 32) pleaded that there was a settlement that supply would be stopped to the defendant. Although, this is not directly proved but because of the absence of the plaintiff on the box this will be deemed to have been proved. And what should be deemed to have been proved cannot exceed the period for which it has been claimed. Since the claim before the Court only in June 2011 he cannot maintain the claim nor can the Court consider the claim prior to the said period.
In my view, the defendant is entitled to abatement of rent from June, 2011 to December, 2011 and since no suggestion was given by the plaintiff during cross-examination of the defendant with regard to the amount of expenses towards drawing of water through 'Bhari' I am constrained to hold that the amount claimed by the defendant to have been paid towards drawing of water from 'Bhari' is Rs.350/- per month. Therefore, the tenant is entitled to the abatement of rent from June, 2011, to December, 2011, that is, Rs.2,100/- only.
The said amount of Rs.2,100/- should be adjusted against the total rent paid by the tenant.
Revisional application is disposed of.
Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities.
(Sahidullah Munshi, J.)