Right of landlord to receive fair rent which is in excess of contractual rent.

The Chief Justice.-I agree that the application should be dismissed. I only wish to add a few words on the point raised by Dr. John purporting to rely upon the decision in Raja Chetty v. Jagannathadas Govindas1 to which I was a party. I do not think that the doctrine of contracting out of the statute can possibly be of any help to Dr. John in this case for two reasons which are, in my opinion, conclusive. The first reason is that the lease in his client’s favour was executed on 22nd June, 1946, i.e., before the passing of Madras Act XV of 1946. On the date of the execution of the lease, the landlord had no right under the Rent Control Order then in force to apply to the Controller for fixation of a fair rent. It is only the tenant who could approach the Controller for that relief. Obviously, a person cannot be said to have abandoned a right by reason of an agreement when on the date of that agreement the law did not confer on him that right. I must confess that this aspect was overlooked during the course of the arguments. The second of the reasons is that it is nobody’s case that the parties were aware of the fair rent for the building and that what was fixed under the contract was less than the fair rent, but nevertheless, it was agreed that the landlord should not approach the Controller for fixation of a fair rent. In Raja Chetty’s case1, the lease was executed long after the commencement of Madras Act XV of 1946, and the parties were aware that under section 7 of the Act, default in payment or tender of rent for one month would entitle the landlord to pray for eviction. In spite of this provision the landlord chose to agree not to evict the tenant until and unless there were arrears of rent for two consecutive months. The facts of the present case are completely different.

If there had been a fixation of fair rent by the Controller before the execution of the lease in favour of the petitioner at a higher figure and in spite of that the landlord entered into an agreement accepting a lower rent, then, undoubtedly he would be bound by that contract; but that is not the case here.

Speaking for myself, I would expect the Controller in most cases to hold that the rent deliberately agreed to by the landlord would not be less than the fair rent, but surely, there might be cases in which the facts and circumstances indicate that the agreed rent is not the fair rent. Both the Controller and the appellate authority have found in this case that the fair rent is higher than the agreed rent. That finding of fact is binding on us.

Though it is not necessary for the disposal of this application, I would like to say something about the doubt expressed by my learned brother whether the decision in Raja Chetty’s case1, would impliedly lead to the conclusion that the tenant can also contract himself out of the benefits conferred on him by the Act by taking a lease after the Act containing terms and conditions which operate to curtail the rights and privileges conferred upon him by the Act. There was no doubt in our mind that he could not. I would be prepared to go the length of holding that it would be against public policy and the spirit of the Act. The provisions of section 6 embody the principle that the tenant can be saved from the terms of an express agreement when such terms are to his detriment. But I fail to see why in the absence of a specific prohibition and when there is no offence against public policy, a landlord should not waive a benefit conferred on him by the Act; why, for instance, he should not agree that he would not take out an application for eviction unless there is default in payment of rent for two or three consecutive months.

Viswanatha Sastri, J.-The Madras Buildings (Lease and Rent Control) Act (XV of 1946), hereinafter referred to as “The Act,” embodies a compromise between two well-recognised and occasionally conflicting principles, namely, the freedom of citizens to enter into contracts and the duty of the