Das, J.:— 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, & the case of the applts. was that the building 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, previous 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 to May 1942, for which the resps. claimed arrears of rent at Rs. 75 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 parti 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 done 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 fiadings arrived at by the Cts. below, and learned counsel for the applts. has frankly conceded that he is not 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:

“That after the rent-claimed building with its machinery therein was seriously damaged by the last earthquake of January 1934, & for non-repair of the said building by the pltfs. thereafter, these petnrs. could not run the ice factory & start their business of manufacture of ice when in January 1935, apltf. 1 promised to repair the said building, & further, to advance some amount for starting the business if these defts. would agree to execute a mtge bond for consideration of Rs. 4000 including rent of the said damaged & fallen building for the period from January to December 1934, to which bait these defts. agreed, having been in a very embarrassed financial condition, but since after execution of the said bond in January 1935 the pltfs. have not effected any repair whatsoever to the rent claimed building in spite of repeated requests with the result that these defts. have suffered much loss for not being able to make the best use of machineries for manufacture of ice due to the serious damage of the building.

That the pits, themselves verbally agreed to reduce the rent to Rs. 50 p.m, & got the same recorded in the last municipal assessment, but when this plea of reduction was taken in the Money Suit No. 86/39 this Ct. was pleased to disallow the reduction on the ground of verbal agreement, & as such these defts. submit that under Section 108 of the Transfer of Property Act, the pltfs. are not entitled to any rent, but to such proper rent which the Ct. fixes after taking into consideration the circumstances stated above.”

I have quoted above the supplementary written statement filed in one of the suits, viz. Money Suit No. 95 of 1940. In the other two suits also, there was a similar defence; for example, in Money Suit No. 140 of 1941, para. 11 of the written statement reads as follows:

“That the pltf. is not entitled to get any rent of the house under its present condition, & the detts. are ready to pay the pltf. proper rent which the Ct. fixes after taking into consideration all the circumstances set forth above.”

In the title suit which the applts. had brought, they stated the above mentioned facts & then claimed the following relief:

“That it be adjudicated that the defts. are, under the circumstances set forth in the above paras, of this plaint, entitled to Rs. 10 p.m from 16-1-1934 as fair & reasonable rent of the holding & not at the rate of Rs. 75 as they claim”.

By the suit as framed the applts. did not ask for anything else, except the adjudication mentioned above which, in effect, was nothing more than an assessment of fair & reasonable rent.

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 rent, or assessment of fair & equitable rent. The learned Munsif pointed out that admittedly the provisions of the Transfer of Property 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. Appeah were preferred to the learned Dist. J. who was not satisfied with the finding of the learned Munsif that no major damage was done. 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 could 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 Bay in his order dated 9-5-1946. He 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.

4. Mr. S.N Basu appearing for the applts. has contested both the aforesaid findings. The finding that no major damage which required to be repaired by the lessor, was caused is a finding of fact binding in second appeal. Mr. Basu has contended that the final Ct. of fact has dealt with the question of damage in a very summary way, without considering all the relevant evidence in the record, & has further misdirected himself as to the real issue between the parties. He has pointed out that both the Cts. below were influenced by the fact that the ice factory continued to run in spite of the damage, & from, this an unwarranted inference was drawn that no major damage was caused to the building. Mr. Basu has contended that the real point was not whether the ice factory continued in spite of the damage, but whether there was such major damage to the building as had to be repaired by the lessor under the terms of the lease, & if the failure to effect such repair had caused loss to the applts. Mr. Basu has further submitted that in the three suits for rent the applts. as defts. were entitled to claim by way of equitable set off of such compensation as they were entitled to claim for a breach of the covenant as to repairs by the lessor. He has contended that this was the real nature of the defence in the three suits for rent, & the Cts. below have missed this important aspect of the case, which has vitiated the findings arrived at by them. If one were to follow the logical process, one should first consider the question of fact if there was any such damage to the building as had to be repaired by the lessor under the terms of the lease, then would come the further question what relief, if any, would the applts. be entitled to for the failure of the lessor to effect repairs. On the question of damige to the building learned counsel for the applts. has drawn our attention to the inspection notes of the Circle Officer of Industries, North Bihar Circle, dated 29-1-1934 (Ex. A), & the local inquiry report of the Pleader Comr in the light of the said inspection notes. The final of fact referred to the said inspection notes & said that though some damage was caused, the factory continued to run. He further expressed the view that the inspection notes of the Circle Officer had reference to the regulations laid down & the conditions to be satisfied before a factory is allowed to run under the Indian Factories Act. He then said that the extent of the damage had been exaggerated by the applts. I musts say that there is no clear finding by the final Ct. of fact that no such damage had occurred which required to be repaired by the lessor under the terms of the lease. The learned Munsif dealt with this matter at greater length, & held that some slight damage was done to the building, but no major damage, & the slight damage was repaired by labourers employed by the reaps. The learned Munsif did not, however, specifically consider those parts of the inspection notes which said that a portion of the southern wall & certain brick pillars had fallen down & also some walls had gone out of the plumb line. The enquiry report of the pleader Comr supported these findings of the Circle Officer. Therefore, the finding of fact arrived at by the learned Munsif is also open to the criticism that he failed to consider relevant & material evidence in the record as to the extent of the damage to the building. This brings me to the next question which is the most important in these appeals—as to what relief, if any, the applts. are entitled to, assuming that there was such damage to the building as had to be repaired by the lessor under the terms of the lease. While dealing with this question, it would be convenient to deal with the title suit separately from the suits for rent. In an earlier part of this judgment I have quoted in extenso the relief which the applts. had claimed in the title suit. It seems clear to me that the title suit as framed was for an assessment of fair & equitable rent in the shape of a declaration that a fair & reasonable rent would be Rs. 10 p.m from 16-1-1934. In my opinion, the applts. were not entitled to such a declaration even if there had been such damage to the building as had to be repaired by the lessor under the terms of the lease. Admittedly, the provisions of the Transfer of Property Act, governed the lease, & there has been some argument before us if the lessee had any other right except that mentioned in Cl. (f) of Section 108 of the Transfer of Property Act. That clause says that if the lessor neglects to make within a reasonable time after notice, any repairs which he is bound to make to the property, the lessee may make the same himself, & deduct the expense of such repairs with interest from the rent, or otherwise recover it from the lessor. Admittedly the lessee did not make any repairs himself; nor did he spend any money on such repairs. Therefore, the question of deducting the expenses of such repairs from the rent or otherwise recovering it from the lessor does not arise. Learned counsel for the resps. has contended before us that the right given under Cl. (f) of S. 108 was the only right which the lessee had. Learned counsel for the applts., on the contrary, has contended that other remedies open to the lessee, for example, claiming compensation for any loss suffered as a result of a breach of contract under Section 73 of the Contract Act, are still available to the lessee. In Zeebunnissa Begum v. Mrs. H.B Danagher, 59 Mad. 942 : (A.I.R (23) 1936 Mad. 564), Varadachariar J. (as he then was) put the matter thus at p. 955 of the report:

“Before passing on to the next argument, I may also paint out that in respect of the covenant to repair, no question of specific performance can arise, see Woodfall on Landlord & Tenant, p. 769. The remedy of the tenant in the event of a breach of the covenant can only be either by way of a deduction from the rent or by way of a claim for damages or reimbursement of money spent.”

In my opinion, the lessee can claim damages against the lessor for a breach of his obligations. In Hewitt v. Rowlands, (1924) 93 L.J.K.B 729, the question of assessing damages in favour of a tenant for failure of the landlord to effect repairs, which under the agreement the landlord had undertaken to do, arose, & one of the questions was if the tenant's right to recover damages depended on his expending money for doing the repairs which the landlord ought to have done. It was pointed out that there was no difference in principle between the liability of a landlord in respect of his covenant to repair & that of a tenant on his covenant to repair, & it was not a condition precedent to the tenant's right to recover damages against his landlord for breach of covenant to repair, that the tenant should have actually expended money in doing the repairs which the landlord ought to have done. There is, therefore, authority for the view contended for by Mr. Basu. But the question still is—is the title suit brought by the applts. a suit claiming damages for failure to effect repairs or is it a suit for assessment of fair & equitable rent? It seems clear to me, on a perusal of the plaint, that the applts. were not claiming damages by way of compensation for any loss which they had suffered as a result of a breach of the landlord's covenant to repair. In the plaint itself it was clearly, stated that what the-applts wanted was the determination of fair & equitable rent. A subsequent petn. for amendment of the plaint which” was filed on 24-2-1942, made the position still more clear. This petn., stated:

“That the pltfs. have filed the suit for fixing Rs. 10 p.m as fair & reasonable rent of holding No. 497 of Ward No. 2 of Muzaffarpur Municipality belonging to the defts. on the grounds that the building collapsed & very badly cricked & damaged by the last earthquake of 15-1-1934, & since then no repairs were undertaken by the defts. up to date.”

Surely, a claim of this nature is not a claim for damages as contemplated under Section 73 of the Contract Act. I am not looking at the matter from the view of any technical rules of pleading in a case for compensation for loss or damage the pltfs. ought to say what loss, pecuniary or otherwise, they have suffered. Merely saying that there was some damage to the building which had to be repaired by the landlord but which did not in any way interfere with the work of the ice factory, & without stating what loss, pecuniary or otherwise, the pltfs. suffered cannot, in my opinion, be the foundation for a claim for damages or even for abatement of rent by way of damages. It is obvious that the Ct. could not mike a contract for the parties & fix a fair & reasonable rent from 10-1-1934. As a matter of fact, rent at the stipulated rate of Rs. 75 p.m had been paid after 1934, either amicably or had been realised by means of suits. Under the provisions of the Transfer of Property Act, the applts., were not entitled to the relief which they asked for in their title suit & that suit was rightly dismissed by the Cts. below, even on the assumption that there was such damage to the building as required to be repaired by the landlord. In view of the argument raised by Mr. Basu, I have examined the evidence given on behalf of the applts. There is nothing in that evidence to show what loss, pecuniary or otherwise, the applts. had suffered by reason of the failure to effect repairs by the landlord. All that the evidence sought to prove was that some damage had taken place which was not repaired by the landlords. Nothing was stated as to what loss, pecuniary or otherwise, the applts. had suffered, & the only claim which they made was for a fixation of fair & equitable rent. Such a relief was not available to the applts.

5. Turning now to the three suits for rent, the contention of Mr. Basu is that his clients are entitled to claim compensation or damage for a breach of the landlords' covenant as to repairs, by way of an equitable set off against the claim for rent. Here, again, the trouble is that was not the nature of the defence put forward, & I do not think it is open to the applts. to make out a different case in second appeal. I took the trouble of quoting the written statement in extenso. What was really claimed was that there was a verbal agreement for reduction of rent; but when the verbal agreement was not accepted, the plea taken was that the Ct.; should fix a proper rent. There was no suggestion that the applts. were entitled to claim compensation or damages for the loss which they had suffered & that such compensation or damages should be set off against the claim for rent. As in the title suit, so also in the suits for rent, nothing was stated about the loss, pecuniary or otherwise, which the applts. had suffered. This difficulty was realized when the applns. in revn. were heard by this Ct. against the order of remand first passed by the Dist. J. It was apparently then contended that what the applts. asked for was abatement of tent. Mr. S.N Basu has argued before us that what his clients want is abatement of rent by way of compensation or damages. He has relied on two decisions in support of his claim that such abatement is permissible under the law. The first decision is one of the Punjab Chief Ct. in Naidar Mal v. B. Borrooah & Co., 23 I.C 358 : (A.I.R (1) 1914 Lah. 186). The Transfer of Property Act does not apply to the Punjab, & there was no discussion of the legal position in the decision referred to above. It was however, found in that case as follows:

“It is very clearly proved that as a result of this neglect serious damage occurred in the rains & at the time when the defts-resps. stopped paying rent, there were, besides the original four roofless rooms, other rooms which had fallen in or had become dangerous & otherwise useless.”

Therefore, the case was really one of partial eviction or deprivation, where the lessor, by his failure to effect repairs, had failed to put the lessee in full possession of the property demised. In such a case the question of proportionate abatement of rent undoubtedly arose. The lessor is not entitled to rent unless & until he has fulfilled his obligation to put the lessee in possession of the land leased to him. If the lessor has put the lessee in possession of only a portion of the property leased, the lessee will be entitled to, in some cases, suspension of the whole rent & in some other cases to a reduction or abatement of rent. The decision in Naidar Hal's case, 23 I.C 358 : (A.I.R (1) 1914 Lah. 186), therefore, proceeded on a principle different from the one which is sought to be applied in the cases before us. In the cases before us, there was no partial eviction or deprivation, as a result of the failure of the landlord to effect repairs. The applts. continued to be in possession of the whole property, & gave no evidence of any loss, pecuniary or otherwise. I fail to see how in such circumstances the applts. can have any abatement of rent. The other decision in Bennett v. Ireland, (1859) 28 L.J.Q.B 48 : (113 R.R 657) depended on its peculiar facts. That was a case in which there was an agreement that the deft. would pay the rent in the manner stipulated, damage by fire excepted. A fire destroyed part of the building. Lord Campbell C.J observed as follows:

“There must be an abatement of rent in respect of such part of the premises as, by reason of the fire the tenant can no longer enjoy, & during the time that he is deprived of the use of this part.”

Therefore, that was also a case in which there was partial deprivation, that is the tenant could not enjoy a part of the building which had been destroyed by fire. In none of the cases before us was it even alleged that there was partial deprivation or eviction & the tenant could not enjoy a part of the building because of the failure to effect repairs. If, therefore, we treat the defence in the three suits for rent as a claim for abatement of rent, as appears to have been done when the applns. in revn. were heard against the order of remand, my conclusion is that the applts. were not entitled to any abatement of rent originally contracted for. Issue 5 as recast must, in my opinion, be answered in the negative.

6. The question was also raised before us if the applts. had to pay court-fees on a claim for damages by way of an equitable set off, & furthermore, how such damages should be as sessed. The question of assessing damages in favour of a tenant who has spent nothing on repairs, is not free from difficulty, as would appear from the observations made in Hewitt v. Rowlands, (1924) 93 L.J.K.B 729. Where a lessee's covenant to deliver up the premises in good repair is broken at the end of the term, the measure of damages on strict principle should be the amount by which the value of the reversion is diminished; but as a practical measure, the reasonable cost of putting the premises into the state of repair in which they ought to have been left has sometimes been taken to be the measure of damages. In the case of a breach during the term, the measure is generally the diminution in the value of the reversion. These are, however, questions which do not call for decision by us. It is sufficient to state that the defence which the applts. had put forward in the three suits for rent was really a claim for assessment of fair & equitable rent which the applts. were not entitled to claim under the provisions of the Transfer of Property Act. If, however, that defence is taken to be a claim for abatement of rent, then also the applts. were not entitled to any abatement of rent in the absence of any evidence that they had been deprived of the use of a portion of the premises or had suffered loss, pecuniary or otherwise, by reason of the failure of the landlords to effect such repairs as they were under the terms of the lease bound to do.

7. This result may be unfortunate for the applts. but they are themselves to blame for this result. They brought a title suit in which they made a claim to which they were not entitled under the law. In the suits for rent they put up defences which could not be established & again made a claim for assessment of fair rent which was not open to them to claim, under the provisions of the Transfer of Property Act. If they claimed compensation or damages for a breach of the landlord's covenant as to repairs, they should have stated what loss or damage they had suffered for which they claimed compensation. This they did not do at any earlier stage, & the question has been raised for the first time in these second appeals. Even when these cases came to this Ct. on applns. in revn. against the order of remand, the claim was treated to be one for abatement of rent only. If I had held that the applts. were entitled to abatement of rent by way of damages, I might feel inclined to remand these cases again in view of the rather unsatisfactory nature of the-finding arrived at by the final Ct. of fact on the question of the extent of damage caused to the building by the earthquake of 1934. But, in my judgment, the applts. are not entitled to claim abatement of rent & no usefull purpose will be served by another order of ibmand & unless the applts. are allowed to amend their pleadings & given an opportunity of adducing fresh evidence as to the loss which they had suffered there could not be a decree in these cases for compensation or damages. It would be, I think, unfair to the resps. to allow the applts. to amend their pleadings & give them an opportunity of adducing fresh evidence.

8. The applns. in revn. against the order of remand were heard in the presence of the parties, & the order of this Ct. refusing an opportunity to give fresh evidence is binding on the applts.

9. For the reasons given above, I would dismiss these appeals with costs.

10. Nageshwar Prasad, J.:— I agree.

R.G.I

11. Appeals dismissed.