An agreement for enhanced rent is valid and enforceable even under the Madras Buildings (Lease and Rent) Control Act (XXV of 1949), if the fair rent has not been fixed by the Rent Controller.

( 1 ) THESE second appeals have been referred to a bench by our learned brother umamaheswaram, J. Second Appeal No. 1226 of 1954 arises out of a suit filed for the recovery of Rs. 4,575 claimed by the landlord as arrears of rent due from 1-7-1950 to 31-11-1952 at the rate of Rs. 175 per mensem. The plaintiff-landlord stated that the defendants Nos. 2 to 4 who formed a partnership carrying on business under the name and style of Sri Krishna Ice Parlour and Bakery took the suit premises on rent. It would appear that the rent fixed originally was Rs. 80 per month and this continued till 30-11-1948 when there was an agreement to pay a higher rent, namely, Rs. 125. The rent was Being paid at this rate from 1-12-1948 to 30-6-1950. On 1-7-1950 there was a further agreement to pay a higher rent, namely, Rs. 175 per month. The plaintiffs case is that the defendant paid the rent till 30-6-1950 and failed to pay subsequently. He, therefore, claimed the arrears of rent on the basis of the increased rent at rs. 175. The defendants 1 and 4 filed a joint written statement and denied that they had agreed to pay the rent at the rate of Rs. 175 per mensem. It was stated that the rent was exorbitant and the plaintiff was entitled to recover only at the rate of Rs. 80 per month, and it was also urged that the claim to a higher rent was contrary to the provisions of the Madras Buildings (Lear and Rent) control Act and, therefore, such an agreement was not enforceable. Defendant No. 3 also pleaded the same defence to the suit. Although the courts below held that the agreement to pay the enhanced rent was proved, but with regard to the question as to whether the claim for the enhanced rent was against the provisions of the Madras Buildings (Lease and Rent) Control Act, the trial court held that the right of the plaintiff to claim a higher rent had come into effect even before the Madras Buildings (Lease and Rent) Control Act of 1946 and the Act could not affect the plaintiffs right to recover. The lower appellate court, however, came to the conclusion that so long as the fair rent had not been fixed there was nothing in the House Rent Control Act to debar the landlord to claim the enhanced rent under an agreement come to between himself and the tenant. The tenant has now come up in appeal.

( 2 ) THE agreement to pay the enhanced tent having been found to have been established by both the courts below, the question cannot be canvassed here. Therefore, the only point that arises for consideration here is as to whether the agreement between the landlord and the tenant for an enhanced rent offended section 6 of the Madras Buildings (Lease and Rent) Control Act of 1946 or 1949 as amended in 1951.

( 3 ) RELYING upon a decision of the Madras High Court of Govinda Raja Chari, J. , in A. Moses Pillai v. M. K. Govindan, 1948-1 Mad LJ 51: (AIR 1948 Mad 346) (A), it was argued on behalf of the appellants counsel that the provisions of section 6 of the Rent Control Act would apply despite the fact that the parties had contracted otherwise, The argument was that Section 6, Sub-section (2) of the Act was peremptory and imperative and it was not open to the landlord or the tenant to enter into a contract in violation of the above provisions. The facts of the aforesaid case were that the tenant in that case had executed a rent chit to say that the tenancy would last for a year first and that during that period a sum of Rs. 40 would be paid every month. There was a further stipulation to say that, if possession of the house was not delivered as agreed to within the prescribed period, the tenant would pay a rent of Rs. 45 that is to say (an increased rent of Rs. 5) until possession was given. It was contended in that case that the excess of the sum of Rs. 5, the enhanced rent, could not be recovered from the tenants that stipulation was unenforceable in view of Clause 7 (a) of the Madras Rent Control Order of 1941. The learned judge while interpreting the above clause

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