JUDGMENT : - A.B. Srivasiava, J. In this petition, which is pending admission since 1987, counter and rejoinder affidavits have been exchanged, hence, it is being finally disposed of in accordance with Rules of Court after having learned counsel for the parties. 2. THE petitioner-tenants have by means of this petition, sought quashing of a judgment and order dated 2-12-1986 of the J. S. C. C., Azamgarh, decreeing the suit of the landlord-respondent No. 1 for ejectment and arrears of rent, and order dated 15-10-1987 of the 1st Additional District Judge, confirming the same in revision. It appears the petitioners' predecessor-in-title Raja Ram, was a tenant of 3 rooms and a Chabutara on Rs. 40 per month. In the year 1969 the landlord demolished two of the rooms and constructed a Katra and triad to demolish the 3rd room which was a shop and the Chabutara where upon a civil suit was filed by late Raja Ram, the tenant, for prohibitory and mandatory injunction, and possession. The said suit was decreed. In second appeal, however, the judgment was modified, the suit for re-construction of the demolished portion was set aside, and. vas maintained in respect of rest of the portion. 3. SUBSEQUENTLY, the landlord filed a S. C. C. suit in the court of the Judge Small Causes against the petitioners, alleging that rent was in arrears from 1-4-1969, which was not paid despite notice of demand and termination served on 25-3-1982. The defendants sent rent Rs. 11 which being less than the rent payable, was refused by the landlord. The suit was for ejectment, arrears of rent damages. 4. THE suit was contested by the petitioner with allegation that after the demolition of the two inner rooms, he remained a tenant only of the Shop No. 25-A, and has been paying rent @ Rs. 11 per month for the same, which was the rate for the other similar adjoining shops. THE petitioners are not defaulters having deposited the rent @ Rs. 11 per month under Section 30 of Act 13 of 1972 on account of refusal of the landlord, the notice is invalid. The learned J. S. C. C. held that the rate of rent is Rs. 40 per month and not Rs. THE petitioners are not defaulters having deposited the rent @ Rs. 11 per month under Section 30 of Act 13 of 1972 on account of refusal of the landlord, the notice is invalid. The learned J. S. C. C. held that the rate of rent is Rs. 40 per month and not Rs. 11 per month, as there is no provision in Act 13 of 1972 and the claim of the petitioners for reduction of rent on account of demolition of the two rooms is not sustainable under Act 13 of 1972, the petitioners have also committed default, and accordingly decreed the suit. The revisional court affirmed the same observing that it has no jurisdiction to interfere with the findings of fact. 5. THE main contention on behalf of the petitions and advanced by their learned counsel is that the courts below have acted against law in not considering the effect and impact of the petitioners having been dispossessed from a major part of their tenement on a account of demolition of the two rooms by the landlord. Under law it is contended, the petitioner-tenants are entitled to pay the rent proportionate to the part of the tenement which is now in their possession. 6. THE contention on the other hand on behalf of the respondents is that the petitioners not having pleaded any proportionate reduction in rent, the courts below were not called upon to decide such question. In Surendra Nath v. Stephen Court Limited, reported in AIR 1966 SC 1361 , the Supreme Court dealing with the principles applicable in the matter of suspension and apportionment of rent, has laid down as follows:- "the doctrine of suspension of rent should not be regarded as a rule of justice, equity and good conscience in India in all circumstances. The doctrine cannot be justified as a dependable rule to be adhered to notwithstanding hard cases. On the one hand it does not seem equitable that when a tenant enjoys a substantial portion of the property of the landlord, leased to him, without much inconvenience, he should not pay any compensation for the use of the property, in other words he should enjoy a wind fall. On the one hand it does not seem equitable that when a tenant enjoys a substantial portion of the property of the landlord, leased to him, without much inconvenience, he should not pay any compensation for the use of the property, in other words he should enjoy a wind fall. On the other hand it is unfair that if a tenant is not given possession of a substantial portion of the property, he should be asked to pay any compensation for the use of the property while he is taking appropriate measure for specific performance of the contract, it will depend of the circumstances of each case whether 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. Where, therefore, the landlord has failed to give possession of one out of the three bed rooms of the demised premises, the tenant is not entitled to suspend the payment of rent but he must pay a proportionate part of the rent. " 7. THE Supreme Court in the said case also disagreed with the view of the High Court rejecting the plea of apportionment of the rent, on the ground that the defendant had not taken a specific plea to this effect in the written statement. 8. WHAT has been observed in the matter of a landlord failing to give possession of a portion of the demised premises, is equally applicable to a case where the landlord has illegally and by force dispossessed the tenant, of a portion of demised premises and demolished. Consequently, the petitioner-tenants in this case were liable to pay only proportionate rent. What would be the proportionate rent of course, will have to decided by the Court. To say that for this purpose the petitioners should file a civil suit for declaration or make an application under the provisions of Act 13 of 1973 is not correct. Such question could be decided in a suit claiming rent. In the instant case the suit filed by the respondents being one for ejectment and arrears of rent and the petitioners having specifically pleaded the liability to pay only Rs. 11 per month, the same would amount to a claim for apportionment of rent, which the learned J. S. C. C. under law could not have declined to decide. In the instant case the suit filed by the respondents being one for ejectment and arrears of rent and the petitioners having specifically pleaded the liability to pay only Rs. 11 per month, the same would amount to a claim for apportionment of rent, which the learned J. S. C. C. under law could not have declined to decide. Simply because the petitioners at some stage during evidence stated that they were paying Rs. 11 per month by means of an agreement, it does not amount of depriving them of their right to seek apportionment of rent. The learned J. S. C. C. and for that matter the revisional court, therefore, committed a manifest error of law by not deciding the said question and mechanically up holding the claim of the respondent-landlord for rent @ Rs. 40 per month. 9. IT is true, the amount of Rs. 11 pleaded by the petitioner may not necessarily by the proper rent payable on apportionment and the court will have to decide the correct amount keeping in view the fact that one shop and Chabutara still remains with the petitioners. The question of default would also depend upon the amount so held to be payable by the J. S. C. C. 10. THE writ petition thus deserves to be allowed, the two impugned orders quashed, and the case remanded to the J. S. C. C. for decision a fresh in accordance with law. The writ petition is accordingly allowed. The impugned order and decree dated 2-12-1986 of the J. S. C. C. and dated 15-10-1987 of the learned Additional District Judge are hereby quashed. The case is remanded to the J. S. C. C. to hear and decide it afresh in accordance with law after framing an issue on the question of apportionment of rent after affording opportunity of such additional evidence and hearing, to the parties as may be necessary. It being a very old case, the J. S. C. C. shall disposed it of within 3 months from the date a certified copy of this order is presented before him. No order as to costs. Petition allowed.