J. K. Mehra, J. ( 1 ) THIS is an application for direction to the defendantsto pay rent/damages for use and occupation of the premises, which was let out bythe plaintiff, H. U. F. to defendant No. 1. ( 2 ) IN the suit the plaintiff has alleged that the premises in dispute were let outto defendant No. l and that defendant no. 4 who is its Managing Director anddefendants 2 and 3, who are the Directors of defendant No. l had guaranteed thepayment of rent. It is further stated that at the time of institution of the suit theagreed rate of rent was Rs. 35000. 00 per month. Plaintiff has alleged that thedefendants had not been paying any rent. ( 3 ) THE position taken up by the defendants is that though defendant No. 1was the tenant initially, but subsequently at the time of renewal of the lease deedthe tenancy was transferred to defendants 3 and 4 and that defendant No. 1 is not liable to pay rent for the premises in dispute. The case of defendant No. 2 is also thatinitially the premises were let out to defendant No. 1 which was later on transferredto the name of defendants 3 and 4 who are the Director and Managing Directorrespectively of the company. The fact that defendants 3 and 4 were initially thesurety was not challenged at the bar before me. The defendants 3 and 4 have notdisputed the rate of rent but had pleaded further that the plaintiff is not entitledto rent as it had failed to carry out essential repairs which had to be carried out bydefendants 3 and 4 at their costs which cost the said defendants Rs. 1,67,000. 00. These defendants have further urged at the Bar that on the said account of failureof the plaintiff to carry out such repairs, there is abatement of rent and no orderfor payment can be passed against defendants Nos. 3 and 4. On furtherclarification, sought by Court on this plea to ascertain whether they claim totalabatement or partial, the Counsel claimed abatement to the extent beyondrs. 26,000. 00 p. m. , i. e. , the abatement claimed is @ Rs. 9,000. 00 p. m. The plaintiffhas, however, denied that there was any transfer of tenancy in favour ofdefendants 3 and 4 and he has alleged that subsequent leases are forgeries and hasasked for the production of the originals. 26,000. 00 p. m. , i. e. , the abatement claimed is @ Rs. 9,000. 00 p. m. The plaintiffhas, however, denied that there was any transfer of tenancy in favour ofdefendants 3 and 4 and he has alleged that subsequent leases are forgeries and hasasked for the production of the originals. Plaintiff maintains that the defendantno. l is the principal party liable for the rent while defendants 2 to 4 are liable assureties. In this case, the fact that the premises were let out by the plaintiff at therate of Rs. 35000. 00 per month is not in dispute. In the present case identity of thelandlord is not in dispute, while it is contended by the plaintiff that defendantno. l is the tenant and defendants 2 to 4 stood guarantee for the payment of the rentwhereas the plea of the defendants is that defendant No. 1 had ceased to be a tenantas on the expiry of the term of the first lease deed dated 1. 11. 89 on 1. 5. 91whereafter the tenancy was changed tothcnamcsofdefcndants3and4whohadbecome the tenants under the subsequent leases. Similar is the stand taken bydefendant No. 2. It is stated in the written statement of the defendants thatdefendants 2 and 3 are the directors of defendant No. 1, defendant No. 4 is themanaging Director and that the rent that was being paid was @ Rs. 34500. 00although defendants 3 and 4 have denied that the plaintiffs are the owners of theproperty. I find from the documents submitted by the defendants 3 and 4 beingphotocopies of the alleged lease deeds produced by the said defendants Nos. 3 and 4 and whereunder they are claiming to have become the tenants that the saidplaintiff HUF is shown as the landlord. As such, this plea of defendants Nos. 3 and4, prima facie, is lacking in bonafides. It is further to be noticed that Mr. Ashokchopra is clearly stated to be the Karta of the plaintiff HUF in the said lease deedrelied upon by defendants Nos. 3 and 4. The denial in the written statement isclearly belied by the documents produced by the said defendants. ( 4 ) COMING to the liability and the question of power of Court to order thepayment or deposit of rent has been challenged on the ground that no such ordercan be made in any of the litigations between the landlord and the defendants. The denial in the written statement isclearly belied by the documents produced by the said defendants. ( 4 ) COMING to the liability and the question of power of Court to order thepayment or deposit of rent has been challenged on the ground that no such ordercan be made in any of the litigations between the landlord and the defendants. Inthe light of the facts set out above, I am in no doubt that there is no dispute aboutthe liability of defendants No. 3 and 4 whether in their capacity as tenants ortenants by holding over or as guarantors which can be decided on merits of the suitafter evidence is lead by both plaintiff and the defendants. ( 5 ) THE question of passing orders for payment of the amount equal to the renthas come up for decision before various courts. Counsel for the defendants hadrelied upon the decision of this Court in the case of Brig. S. S. Suri (AVSM) (Retd) v. R. Chander Shekhar reported as 1994 (1) Apex Decisions (Delhi) 98 (Paras 1 ). I am unable to appreciate as to how this ruling helps thedefendants because it has been clearly held in the said case that an order fordeposit of rent can be passed by the Court in fair exercise of its judicial discretion. The Court in that case has examined the provisions of 0rder 39 Rule 10 Civil Procedure Code whichreads as under:- "where the subject matter of a suit is money or some other thing capable ofdeliver and any party thereto admits that he holds such money or other thingas a trustee for another party, or that it belongs or is due to another party,the Court may order the same to be deposited in Court or delivered to suchlast named party with or without security, subject to the further direction of the Court. "and also Order 12 Rule 1 Civil Procedure Code and Section 151 Civil Procedure Code can be invoked to cover allsuch cases. The Court had clearly held in that case that the Court can in a case ofthis kind in fair exercise of its judicial discretion order for deposit of moneypending the decision of the suit. ( 6 ) FROM the copies of the lease deeds produced by the defendants the rateof rent is clearly stated as Rs. 35000. 00. per month. The Court had clearly held in that case that the Court can in a case ofthis kind in fair exercise of its judicial discretion order for deposit of moneypending the decision of the suit. ( 6 ) FROM the copies of the lease deeds produced by the defendants the rateof rent is clearly stated as Rs. 35000. 00. per month. There is no mention about anysuch condition of lack of repairs of the premises which would render it incapableof enjoyment nor is dispossession of any part of the premises alleged. Theabatement of rent could be considered only if the premises had been renderedincapable of enjoyment. There is no such plca urged before me that the entirepremises had become incapable of enjoyment and in any event it does not standto reason that if the premises had been rendered incapable of enjoyment why didthe defendants renew the lease and continue in occupation thereof. The questionfurther remains thatdefendantsno. 3and4 are claiming to have spent Rs. 1,67,000. 00- on repairs to the premises which fact is disputed by the plaintiff. In my opinionthis is a matter which can be decided only on evidence, but it clearly establishes thatit could at best be a case of non-repair on the part of the landlord. I am not satisfiedthat there is case made out for payment of rent. The rent does not abate merelybecause the premises require rcpairs. Counsel for defendants 3 and 4 has citedabhoya Charan Sen and Others v. Hem Chandra Pal and Others, reported as AIR1929 Calcutta 568, and Dhirendra Nath Roy and Others v. Bhabatarini Debi andothers, reported as AIR 1929 Calcutta 395, which to my mind, have no applicationto the facts of the present casc as in those cases,the question for consideration wasthat the tenant had been deprived of possession/occupation of the part of thewhole land in dispute and in those circumstances, the Court had come to theconclusion that the landlord had dispossessed the tenant from a part of thepremises when rent was fixed for the whole. However, acontrary view has beenexpressed on tenancies in Bengal itself in Ram Laldutt Sarkar v. Dhirendra Nathroy, reported as AIR 1943 P. C. 24. No such condition prevails in the present casewhere the defendants are definitely enjoying the use and occupation of thepremises in dispute. However, acontrary view has beenexpressed on tenancies in Bengal itself in Ram Laldutt Sarkar v. Dhirendra Nathroy, reported as AIR 1943 P. C. 24. No such condition prevails in the present casewhere the defendants are definitely enjoying the use and occupation of thepremises in dispute. The law in this behalf has been settled by the Hon blesupreme Court in Surendra Nath Bibra v. Stephen Court Limited,reported as AIR1966 S. C. 1361 wherein 1943 P. C. 24 (supra) has been explained and laid downwhere out of three bedrooms, only two were handed over to tenant. The tenantis not entitled to suspend rent, but must pay proportionately. A mere breach of thecondition to repair does not give rise to abatement of rent and this view findssupport also from the cases of Bansi Shah and Others v. Krishan Chandra andothers, reported as AIR 1951 Pat 508 and Phelps and Co. v. Shalimar Paints,reported as 1980 0 RLR 646 . ( 7 ) SINCE the question as to whether the defendants 3 and 4 are entitled toadjustment of Rs. 1,67,000. 00is yet to bedetermined, I direct that for the present theamount equal to the rent upto date minus Rs. 1,67,000. 00 be deposited in this Courtby defendants No. 3 and 4 without prejudice to the rights and contentions of theparties. The said defendants are further directed that they should continue todeposit every month Rs. 35000. 00 which is the admitted rate of rent in this Courtwithout prejudice to the rights and contentions of either party. The plaintiff shallhave a right to withdraw the same. The amount deposited by defendants No. 3 and4 and its withdrawal by the plaintiff shall be subject to the final judgment of thiscourt. Payment of arrears be made within six weeks from the date of the order. ( 8 ) LIST the suit on 20/09/1994 for framing of issues.