An agreement between a landlord and tenant for a rent different from the then prevailing rent is not void under the provisions of the Madras Buildings (Lease and Rent Control) Act (XVIII of 1960), so long as the fair rent has not been fixed for the premises under the provisions of the Act.

JUDGMENT :- This Second Appeal has been filed, by the defendant in a suit for recovery of a sum of Rs. 2,562-50 as arrears of rent due in respect of the defendant's tenancy of a building.

2. The defendant has been a tenant of the building in question, except for two upstairs rooms, for a number of years, running a coffee and meals hotel in the premises. It is the common case of the parties that the agreed rent till 8th February, 1960, was Rs. 112-50 per month. There is evidence on record that, in the middle of 1959 itself, the plaintiff had been seeking to evict the defendant and had been refusing to receive the rent at the rate of Rs. 112-50 per month. The plaintiff would have it that it was not his intention to get an enhanced rent, but to secure vacant possession of the building for the purpose of repairs and improvements.

It is the plaintiffs case that, on 8th February, 1960, there was an agreement between him and the defendant at the intercession of one Natesan Pillai, P. W. 2 in this case whereunder the defendant agreed to pay rent at the rate of Rs. 200 per mensem from 1st of Masi, 1960, that notwithstanding this agreement, the defendant failed to pay the agreed rent of Rs. 200 even in the first month and that he sent only a Bank draft for Rs. 112-50. The plaintiff returned this draft for Rs. 112-50 sent for Masi 1960, protesting against the conduct of the defendant in sending that amount only. This protest letter has not been produced by the defendant. On the refusal of the plaintiff to accept rent at Rs. 112-50 per month, the defendant paid the rents into the Karur Vysia Bank Ltd., without any reference to the plaintiff. For about a year after this rejection we find no correspondence between the parties.

On the plaintiff issuing a notice in February, 1961, the defendant, along with his reply notice Exhibit A-2, sent a draft for Rs. 1,350/- being the accumulated rent at Rs. 112-50 per month which had been put into the Bank. The plaintiff accepted this draft for Rs. 1,350 without prejudice to his contention and the defendant continued to send rent at Rs. 112-50 per month thereafter. The plaintiff accepted the subsequent rents also of course without prejudice to his claim. This suit was instituted on 5th February, 1963, claiming the balance of rent on the basis that the agreed rent was Rs. 200/- per mensem. Proceedings for eviction were also started under the Madras Buildings (Lease and Rent Control) Act, on the

basis that there was wilful default in the payment of the balance of rent.

3. The defendant denied any agreement on 8th February, 1960, to pay rent from 1st Masi, 1960 at the rate of Rs. 200 per mensem. He would state that he never agreed to pay rent at Rs. 200 per month unequivocally as alleged, and that there was no concluded agreement in this regard, much less a completed contract. There is no denial that there were talks on 8th February, 1960, between the plaintiff and the defendant. Nor is there any denial of the intercession of Natesan Pillai, P. W. 2, in the matter. According to the defendant, he wanted the two upstairs rooms also to be made available to him and his case is that he did not accept to a rent of Rs. 200 per month, as such without reference to the two upstairs rooms. In the written statement it is stated that the defendant expressly informed the plaintiff that the question of paying enhanced rent will arise only after the tenants occupying the two upstairs rooms vacated and the rooms were given delivery to the defendant. It is the defendant's case that everything was kept in suspense and the plaintiff proposed to take suitable steps to have the tenants in the upstairs rooms evicted outside or through Court.

4. From the records it is seen, and it is the finding of the Courts below, that the plaintiff had asked for arrears of rent prior to 1960 at Rs. 175 per month, but that the matter was settled between the parties on 8th February, 1960, the defendant agreeing to pay, along with the arrears of rent,

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