Vidyawati Bhargava v. Viii Addl. District Judge, Kanpur

S.P Mehrotra, J.:— This writ petition under Article 226 of the Constitution of India has been filed by the petitioners, inter-alia challenging the judgment and order dated 7.12.1981 (Annexure 3 to the writ petition) passed by the learned VIII Additional District Judge, Kanpur (Respondent No. 1) and the judgment and order dated 13.3.1978 (Annexure 2 to the writ petition) passed by the learned Additional Judge Small Causes Court, Kanpur (Respondent No. 2).

2. The dispute relates to a portion on the first floor of House No. 18/47. The Mall Kanpur. The said portion has hereinafter referred to as “the disputed accommodation.

3. It appears that the petitioners filed a suit for ejectment and arrears of rent etc. against Devendra Nath Saxena (hereinafter also referred to as “the defendant”), the predecessor-in-interest of the respondent No. 3/1 to 3/3. The said suit was registered as Suit No. 2689 of 1968.

4. It was, inter-alia, alleged by the petitioners in the said suit that the petitioners were the owners of the said house No. 18/47, The Mall Kanpur and the defendant in the suit was tenant in the disputed accommodation in the said house at a monthly rent of Rs. 52/- besides Bhumi and Bhawan Kar, and that the defendant in the suit without consent of the petitioners illegally sub-let a portion of the disputed accommodation to one Jawahar rendering himself liable for ejectment; and that the defendant in the suit fell in arrears of rent; and that a composite notice dated 25.6.1968 of demand of rent and of determination of tenancy was served upon the defendant in the suit on 26.7.1968 but the defendant did not comply with the notice, and instead, sent a reply with false and frivolous allegations.

5. The said suit was contested by the defendant (predecessor-in-interest of the respondent Nos. 3/1 to 3/3). It was, inter-alia, alleged by the defendant in the written statement that in October, 1954 a portion of the first floor accommodation was demolished thereby depriving the defendant of the valuable rights and amenities, and a further portion was got demolished through the agency of the Municipal Authority, Kanpur thereby depriving the defendant of a major portion of the accommodation and the defendant became liable to pay only a proportionate part of the rent and was not liable to pay the rent at the original contractual rate of Rs. 52/- per month. It was, inter-alia, further alleged that the petitioners were not entitled to rent at the rate of Rs. 52/- as they had illegally deprived the defendant of the use of major portion of the disputed accommodation and they were entitled to only proportionate rent which could in no case be in excess of the half of the agreed rent, that is Rs. 26/- per month only from the date when a part of the accommodation was got demolished; and that the defendant was not in arrears of rent. The allegation made by the petitioners regarding subletting was denied. It was, inter-alia, further stated by the defendant that the suit was barred by the U.P Act No. III of 1947 and section 106 of the Transfer of Property Act.

6. The said suit No. 2689 of 1968 was dismissed by the learned Judge, Small Causes Court, Kanpur by his judgment and order dated 9.10.1976 Thereupon, the petitioners filed a revision under section 25 of the Provincial Small Cause Courts Act, 1887 which was registered as Civil Revision No. 430 of 1976.

7. The learned Additional District Judge (Court No. 10), Kanpur by his judgment and order dated 5.5.1977 allowed the said revision No. 430 of 1976, set aside the judgment and decree dated 9.10.1976 passed by the learned Judge Small Causes Court, Kanpur and remitted the case to the trial court for fresh decision according to law. It was, inter-alia, observed in this judgment and order dated 5.5.1977 that the question of subletting was not pressed on behalf of the petitioners and the revision was pressed only on the question of default in payment of rent. This judgment and order dated 5.5.1977 has been filed as Annexure No. 1 to the writ petition.

8. After remand, the learned Additional Judge, Small Causes Court, Kanpur (Respondent No. 2) by his judgment and order dated 13.3.1978 again dismissed the said suit filed by the petitioners. It was, inter-alia, held that the petitioners-landlords got demolished the portion of the disputed accommodation through the agency of Municipal Authority, Kanpur, and that it could not be said that part of the property was demolished by some irresistible force; and that the provisions of section 108 Clause (e) of the Transfer of Property Act were not applicable in the present suit. It was, inter-alia, further held that admittedly, half portion of the disputed accommodation had been demolished and the defendant-tenant had been deprived of the amenities of the said portion which had been got demolished by the petitioners through Municipal Authority, Kanpur.

9. It was further held that the defendant-tenant tried for making construction and filed the suit but could not construct the portion due to resistance of the petitioners. It was, inter-alia, further held that more than half portion of the disputed accommodation had been demolished which showed that actually the defendant-tenant was liable to pay rent at the rate of Rs. 26/- per month only because half portion had already been demolished at the instance of the petitioners-landlords for no fault of the defendant-tenant. On a consideration of the evidence including the receipts filed on behalf of the petitioners-landlords, it was further held that it could not be said that the defendant-tenant admitted the rent at the rate of Rs. 52/- per month even after the demolition of half portion; and that there was no question of remitting rent at the rate of Rs. 52/- per month after the said demolition as the defendant-tenant was continuously pressing to settle the matter and to settle the revised rent. It was, inter-alia, further held that the defendant-tenant was liable to pay rent at the rate of Rs. 26/- per month which he had already paid. In fact, before the learned Additional Judge, Small Causes Court, Kanpur, the learned counsel for the petitioners-landlords admitted that if the court came to the conclusion that the defendant-tenant was liable to pay rent at the rate of Rs. 26/- per month only then there was no default in payment of rent by the defendant-tenant.

10. Against the said judgment and order dated 13.3.1978 passed by the learned Additional Judge Small Causes Court, Kanpur (Respondent No. 2), the petitioners-landlords filed a revision being S.C.C Revision No. 170 of 1978.

11. By the judgment and order dated 7.12.1981, the learned VIII Additional District Judge, Kanpur (Respondent No. 1) dismissed the said S.C.C Revision No. 170 of 1978 filed by the petitioners-landlords. It was, inter-alia, held by the respondent No. 1 that the revisional court in its earlier judgment and order dated 5.5.1977 had left the entire matter open, and, therefore, the learned trial court could go into all aspects of the evidence to see whether the demolition was made by the Municipal Authority, Kanpur at the instance of the landlords. The respondent No. 1 agreed with the findings of fact recorded by the respondent No. 2 that the demolition, though made by the Municipal Authority, Kanpur, was made at the instance of the petitioners-landlords, and, therefore, in law, it was a case in which the petitioner-landlords were entitled to receive only a proportionate rent. It was, inter-alia, further observed by the respondent No. 1 that the demolition, in the circumstances of the present case, would be deemed to be the act of the petitioners-landlords, and the defendant-tenant would be deemed to have been evicted from the portion demolished. The respondent No. 1, inter-alia, further held that it could not be said that the defendant-tenant agreed to pay rent at the same rate, even after the demolition, nor was it the case of the petitioners-landlords that a fresh agreement had been arrived at between the parties after the demolition; and that the finding recorded by the respondent No. 2 that the defendant-tenant was liable to pay a proportionate rent at the rate of Rs. 26/- per month could not be said to be wrong. It was further observed that it was not disputed that if the rent was calculated at the rate of Rs. 26/- per month then the defendant-tenant would not be in arrears. Hence, it was held that there was no default in payment of rent within the meaning of section 3(1) of the U.P Act No. III of 1947.

12. By the order dated 13.8.2001, service of notice on the respondents in the present writ petition was held to be sufficient.

13. I have heard Sri S.N Mishra, learned counsel for the petitioners.

14. Sri Mishra submitted that by the judgment and order dated 5.5.1977, only limited questions were remanded to the trial court. He further submitted that the trial court was required to consider the counter-foils of receipts, which had not been considered earlier by the trial court.

15. Sri Mishra further submitted that the learned Additional District Judge, Kanpur in the said judgment and order dated 5.5.1977 recorded findings that a portion of the disputed accommodation was demolished by the Municipal Authority, Kanpur and there was no evidence that it had been done due to some mechanism of the petitioners-landlords. These findings, according to Sri Mishra, became final, and it was not open to the trial court after remand to go into these questions. Sri Mishra further submitted that the learned Additional District Judge, Kanpur in the said judgment and order dated 5.5.1977 held section 108(e) of the Transfer of Property Act to be applicable, and this finding also became final, and it was not open to the trial court to consider this question.

16. Having considered the submissions of Sri Mishra and having perused the judgment and order dated 5.5.1977 I am of the view that the submissions made by Sri Mishra cannot be accepted. So far as the question of counter-foils is concerned, the learned Additional District Judge, Kanpur in the said judgment and order dated 5.5.1977 clearly held that none of the counter-foils in the receipt books had been proved, and, therefore, the trial court could not take notice of the counter-foils, and thus, the trial court did not commit any mistake in not considering the documentary evidence of the petitioners-landlords. Thus, the submission of Sri Mishra that the case was remanded for consideration of the counter-foils filed by the petitioners-landlords, is not correct.

17. As regards the question of demolition of a portion of the disputed accommodation, and the payment of rent by the defendant-tenant at the rate of Rs. 52/- per month even after the demolition in 1954, and the applicability of section 108(e) of the Transfer of Property Act, the learned Additional District Judge, Kanpur in the said judgment and order dated 5.5.1977 considered various rival aspects of the said questions. However, no conclusive findings can be said to have been recorded on these questions in the said judgment and order dated 5.5.1977, as is also evident from the fact that the learned Additional District Judge, Kanpur by the said judgment and order set aside the said judgment and decree of the Judge, Small Causes Court, Kanpur dated 9.10.1976 and remanded the case to the trial court for fresh decision according to law. Hence, the respondent No. 1 rightly held that the entire case was remanded to the trial court and the trial court could go into all aspects.

18. Sri Mishra then submitted that section 108 Clause (e) of the Transfer of Property Act was applicable to the present case. To appreciate this contention of Sri Mishra, it will be pertinent to reproduce section 108 Clause (e) of the Transfer of Property Act—

“108. Rights and liabilities of lessor and lessee.— In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased………….

(e) if by fire, tempest or flood, or violence of an army or of a mob or other irresistible force, any material part of the property by wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void:

Provided that, if the injury be occasioned by the wrongful act or default of the lessee, he shall not be entitled to avail himself of the benefit of this provision…………………………………………………………”

19. Sri Mishra submitted that as the demolition had been done by the Municipal Authority, Kanpur, it would amount to demolition by “irresistible force”, and as such section 108 Clause (e) of the Transfer of Property Act was applicable to the present case.

20. This contention of Sri Mishra appears to be correct.

21. On a consideration of evidence on record, the courts below have recorded categorical findings of fact that though the demolition of the portion of the disputed accommodation had been done by the Municipal Authority, Kanpur, but the same had been done at the instance of the petitioners-landlords. This finding of fact does not call for any interference in exercise of writ jurisdiction under Article 226 of the Constitution of India.

22. Keeping in view this finding of fact that it was the petitioners-landlords who got the portion of the disputed accommodation demolished through the agency of the Municipal Authority, Kanpur, the question arises as to whether in such circumstances, it can be said that it had been demolished by some “irresistible force” as contemplated under section 108 Clause (e) of the Transfer of Property Act.

23. In order to get an answer to this question, let us refer to section 108(e) of the Transfer of Property Act again.

24. As noted above, it lays down that if any material part of the property is wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let on account of the following then the lease shall be void at the option of the lessee:

(a) Fire,

(b) Tempest,

(c) Flood,

(d) Violence of an army or of a mob,

(e) Other irresistible force.

25. However, if the injury is occasioned by the wrongful act or default of the lessee, then he shall not be entitled to avail himself of the benefit of this provision.

26. A perusal of section 108(e) of the Transfer of Property Act thus shows that this provision has been enacted for the benefit of the lessee. The lessee has been given option to declare the lease void in case the conditions laid down in section 108(e) of the Transfer of Property Act are fulfilled.

27. Causes for the destruction of the material part of the building as mentioned in section 108(e) of the Transfer of Property Act, may be fire, tempest or flood, violence of an army or of a mob or other irresistible force.

28. Coming to the present case, the demolition of the portion of the disputed accommodation had not been caused by fire, or by tempest or flood, or by violence of an army or of a mob. In fact, the demolition had been done by the Municipal Authority, Kanpur at the instance of the petitioners-landlords.

29. In my opinion, this demolition of the portion of the disputed accommodation done by the Municipal Authority, Kanpur at the instance of the petitioners-landlords, would be demolition by “irresistible force” as contemplated under section 108(e) of the Transfer of Property Act. The Municipal Authority, Kanpur had been constituted under statute of legislature, and the demolition had been done by the Municipal Authority, Kanpur in exercise of its statutory powers. Therefore, the demolition of the portion of the disputed accommodation by the Municipal Authority, Kanpur, would amount to demolition by “irresistible force” so far as the defendant/lessee was concerned, and it was hardly material for the defendant/lessee whether the Municipal Authority, Kanpur had demolished the said portion on its own or at the instance of the petitioner-landlords.

30. Therefore, section 108(e) of the Transfer of Property Act was applicable to the present case. The conclusions of the learned courts below to the contrary, were not correct.

31. Certain judicial decisions may be noticed in this connection.

32. In Dr. Kundan Lal v. Shamshad Ahmad . AIR 1966 All 225. a portion of the shop in the tenancy of the appellant was demolished by the Municipal Board in September, 1956 and the rest of it demolished in September, 1958, Relying upon section 108(e) of the Transfer of Property Act it was held by a learned single Judge of this Court that the appellant did not exercise his option under the said section 108(e) of treating the lease as void after the shop had been demolished. Therefore, it was held, the lease subsisted for the benefit of both parties and the landlord was entitled to claim rent.

33. In George J. Ovungal v. Peter . AIR 1991 Kerala 55., the super-structure of a shop-room under tenancy was demolished allegedly by Municipal Authorities. It was laid down as follows (paragraph 26 of the said AIR)—

“26. ……………………………………………..Even after the destruction of the superstructure of the shop room the tenant is entitled to continue in possession of the land upon which the superstructure of the shop room stood before its destruction; as part of the property demised subject to all the rights and liabilities as a tenant, since the landlord-tenant relationship between the plaintiff and defendant continues to exist. The tenant may be bound to pay the rent under the lease. He may be entitled to exercise an option to give up tenancy under section 108(e) of the T.P Act. So also it may be open to the landlord to claim rent or exercise any other right as landlord of the property including a right to terminate the lease with reference to the part of the demised property even now remaining, namely, the land which formed the floor of the shop room………………………….”

34. In Rahim Bux v. Mohammad Shafi . 1970 ALJ 199., the facts were as follows:

“The plaintiff was a tenant of a shop which was a part of a big building. The building including the shop was owned by the defendants/landlords. A notice was issued to the defendants/landlords by the Municipal Board, Lucknow under section 263(1) of the U.P Municipalities Act. In pursuance of the said notice, the defendants/landlords demolished the entire building including the shop in dispute on 4.4.1958 The plaintiff/tenant filed a suit for injunction on 17.4.1958 restraining the defendants/landlords from interfering with his possession over the said premises, and in the alternative, for a decree for possession”

35. The trial court dismissed the suit. The lower appellate court, however, allowed the appeal of the plaintiff/tenant, and decreed the suit for possession and injunction.

36. The defendants/landlords filed Second Appeal which was dismissed by a learned Single Judge of this Court.

37. In the Second Appeal, it was contended before the learned Single Judge that after the shop had been demolished the lease became void under the provisions of section 108(e) of the Transfer of Property Act. The learned Single Judge held as follows (paragraph 4 of the said ALJ)—

“4. ………………………….This contention is not acceptable. In the first place the demolition of a building by the landlord, even though in pursuance of a notice under section 263(1) of the U.P Municipalities Act, cannot be said to be a destruction of the premises by an irresistible force within the meaning of the said clause of section 108. In the second place the option to a void the lease under this clause rests with the tenant and not with the landlord.”

38. The facts of this Rahim Bux case are distinguishable from the facts of the present case. In Rahim Bux case, the demolition of the building including the shop in dispute had been done by the defendants/landlords themselves in pursuance of a notice of the Municipal Authorities. The demolition had not been done by the Municipal Authorities themselves. Therefore, it could not be said that the demolition had been caused by “irresistible force.”

39. On the other hand, in the present case, the demolition of the portion of the disputed accommodation had been done by the Municipal Authority, Kanpur itself in exercise of its statutory powers. Therefore, this was demolition by “irresistible force” as contemplated under section 108(e) of the Transfer of Property Act, and said provision was applicable to the present case as already held above.

40. The next question which arises is as to whether the defendant/lessee exercised his option to declare the lease void under section 108(e) of the Transfer of Property Act.

41. It is established on the record that the demolition of the portion of the disputed accommodation took place in 1954. The defendant/tenant continued to remain in occupation of the undemolished portion of the disputed accommodation even thereafter.

42. The defendant/tenant thus did not exercise his option to declare the lease void, and, therefore, the lease in favour of the defendant/tenant continued.

43. The question, which now crops up is as to whether the defendant/tenant would continued to remain liable to pay the same rent as it was for the entire disputed accommodation (namely, Rs. 52/- per month), or he would be liable to pay only proportionate rent in respect of the undemolished portion of the disputed accommodation.

44. Sri Mishra, learned counsel for the petitioners-landlords referred to the statement of DW-1, a copy whereof is annexed as Annexure-4 to the writ petition. In cross-examination, DW-1 stated that the portion of the disputed accommodation had been demolished in 1954, and even after 1954, the rent was paid at the rate of Rs. 52/- per month, and that no suit was filed for reduction of rent. Sri Mishra contended that in view of this statement of DW-1, it would be deemed that a fresh contract of tenancy came into existence, and the defendant-tenant was liable to pay rent at the rate of 52/- in regard to undemolished portion of the disputed accommodation.

45. Having considered the submission of Sri Mishra, I find myself unable to agree with the same. In the statement, DW-1 did not say that any fresh contract of tenancy had been entered into with the petitioners-landlords in regard to the undemolished portion of the disputed accommodation. The learned courts below have considered in detail the entire evidence on record and have also observed that the defendant-tenant had filed a suit for injunction. On a consideration of the entire evidence, the learned courts below have concluded that no fresh contract of tenancy came into existence, nor could it be said that the defendant/tenant agreed to pay rent at the same rate, even after the demolition. It was pointed out that it was not the case of the petitioners-landlords that a fresh agreement had been arrived at between the parties after the demolition. These findings of fact recorded by the learned courts below do not call for any interference with under Article 226 of the Constitution of India. The evidence of DW-1 will have to be read in the light of and along with other evidence on record, and the findings of fact are to be recorded on a consideration of the entire evidence on record. Once such findings of fact have been recorded by the learned courts below, and there is no illegality or perversity in such findings of fact, no interference is called for with such findings in the exercise of writ jurisdiction under Article 226 of the Constitution of India.

46. As no fresh agreement was arrived at between the parties after demolition in 1954, the question posed above regarding quantum of rent after demolition will have to be considered in the light of the judicial decisions.

47. In Gopalji Maharaj v. Shiam Lal . AIR 39 1952 All 125., a learned Single Judge of this Court laid down as follows (Paragraph 13 of the said AIR)—

“13. I, therefore, consider myself free to decide the question myself. To start with, there seems to be no juridical basis for a distinction between cases in which the lessee was never put in possession of a portion of the leased lands by the lessor and those in which he was subsequently dispossessed by the lessor from that portion, the rent being assumed to be a lump sum in both the classes of cases. The question from its very nature being one of justice, equity and good conscience, I cannot conceive that a different rule should apply where the lessee was subsequently ousted. Even their Lordships of the Privy Council left no doubt on the point towards the end of their judgment in the observation which I have last quoted. In spite of the rent being a lump sum, in the sense that it is not stated in the lease as being apportionable with reference to particular sections of the leased premises, if it is possible for the Court to determine the proportionate rent of a particular portion, there seems to be no reason why the lessee should not be held liable to pay the same. Any view to the contrary would, in my opinion, be against the elementary rules of justice and equity. I have not been able to discover any rule or principle on which the respondent's contention to the contrary can be entertained for a moment. I, therefore, hold that the lower appellate court was wrong in disagreeing with the trial court's view that the plaintiff was entitled to a proportionate amount of the rent.”

48. In Nar Singh Das Agarwal v. State of Rajasthan . 1965 ALJ 1019., a Division Bench of this Court laid down as follows (page 1025 of the said ALJ)—

“So far as our own High Court is concerned, in Gopalji Maharaj v. Shiam Lal, Mustaq Ahmad, J. clearly held that where a lessee is put in possession of the leased premises but it subsequently evicted by the lessor from a portion of the premises the lessee is liable to pay rent for the premises in his possession in spite of the rent being a lump sum. We are of opinion that the view expressed by Mushtaq Ahmad, J. in the above case is in accord with the law laid down by their Lordships of the Privy Council in Ram Lal Dutt's case and we find ourselves in complete agreement with it.”

49. From these decisions, it is evident that even if a lessee is evicted from a portion of the disputed accommodation, his liability to pay rent would not come to an end unless he exercises his option under section 108 Clause (e) of the Transfer of Property Act. However, in such a case, lessee will be liable to pay rent in respect of the portion, which remains in his possession after the demolition. In other words, the lessee will be liable to pay only proportionate rent in respect of the undemolished portion of the tenanted accommodation.

50. In Dr. Kundan Lal v. Shamshad Ahmad, (supra), a learned Single Judge of this Court laid down as follows (Paragraph 4 of the said AIR):

“4. It would thus appear that in case of the destruction of the leased accommodation through no fault of the landlord, the tenant can avoid payment of rent only if he declares the lease void under section 108(e) of the Transfer of Property Act, but if he fails to do so, the lease will subsist for the benefit of both parties and the landlord is entitled to claim rent. The tenant may have his other remedies, if any, such as damages for breach of covenant to repair. But he cannot claim that the destruction of the building has deprived him of its possession and with hold rent from the landlord.”

51. This decision again shows that if the lessee is evicted from a portion of the disputed accommodation, and he does not exercise his option to declare the lease void under section 108(e) of the Transfer of Property Act, then his liability to pay rent to the landlord would not come to an end.

52. There cannot thus be any dispute regarding this legal position that even if a lessee is evicted from a portion of the disputed accommodation, his liability to pay rent would not come to an end unless he exercises his option under section 108(e) of the Transfer of Property Act. However, the question which would arise in such a case would be regarding quantum of rent, that is, whether the lessee would continue to remain liable to pay the same rent as it was for the entire tenanted accommodation prior to demolition, or he would be liable to pay only proportionate rent in respect of undemolished portion.

53. As noted above, the decisions in Gopalji Maharaj (supra) and in Nar Singh Das Agarwal (supra) show that in such a situation, the lessee would be liable to pay only a proportionate rent in respect of the undemolished portion.

54. Sri Mishra, learned counsel for the petitioner, however, referred to the following passage in the decision of the learned Single Judge in Dr. Kundan Lal case (supra) (paragraph 3 of the said AIR):

“3. Learned counsel for the appellant argued that a tenant must be deemed to have been ousted whenever the accommodation is totally destroyed. I cannot agree. No authority was cited by learned counsel in support of his contention. If the total destruction or demolition of an accommodation automatically results in the ouster of the tenant, there was no need for enacting clause (e) of section 108 of the Transfer of Property Act. It runs thus:

“(e) if by fire, tempest or flood, or violence of an army or of a mob or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void.”

This clause is based on the principle of frustration of contract, and was enacted to safeguard the rights of the tenant in case of the total destruction of the property leased to him. It gives him the right to escape his liability as a tenant by declaring the lease void. It follows that if the tenant does not exercise the option under clause (e) that is, does not invoke the doctrine of frustration the lease shall continue for the benefit of both the parties. There appears to be no other provision under the Transfer of Property Act—and none was cited at the bar—providing for a reduction of rent in case of partial destruction of the leased property or for total suspension in case of its complete destruction. The position under the English Law is the same…………”

55. Although the learned Single Judge in the aforesaid passage, inter-alia, observed that there was no provision under the Transfer of Property Act providing for a reduction of rent in case of partial destruction of the leased property, but the learned Single Judge did not lay down that there cannot be reduction of the rent in case of partial destruction of the leased property. In fact, if that were so, the judgment of the learned Single Judge would be contrary to the Division Bench decision in Nar Singh Das Agarwal (supra).

56. Applying the aforesaid legal position to the present case, as the defendant-tenant did not exercise his option to declare the lease void, he was liable to pay rent even after demolition of the portion of the disputed accommodation, but his liability was only for proportionate rent. The courts below on a consideration of the evidence have recorded finding of fact that more than half portion of the disputed accommodation had been demolished, and as such, proportionate rent would be Rs. 26/- per month. No interference is called for with the said findings of fact recorded by the courts below.

57. It is admitted position that if the defendant-tenant was liable to pay rent at the rate of Rs. 26/- per month since demolition of the portion of the disputed accommodation in 1954, there was no default in payment of rent by the defendant-tenant. As such, in view of the finding that the defendant-tenant was liable to pay Rs. 26/- per month as rent, there was no default in payment of rent of the defendant-tenant. The suit filed by the petitioners-landlords was thus rightly dismissed.

58. In view the aforesaid discussion, the writ petition filed by the petitioners lacks merit and the same is liable to be dismissed. The writ petition is accordingly dismissed. However, in the circumstances of the case, there will no order as to costs.

Petition Dismissed.