Applicability of the provisions of Sections 5 and 6.

The suit out of which this revision petition arises was for a sum of money said to be the excess rent which the petitioner had agreed to pay to the respondent in accordance with a rent chit executed by him. The agreement was that the petitioner should pay Rs. 9 per month as rent for the premises from 1st July, 1947, till 30th June, 1949, and vacate the premises thereafter. If, on the other hand, he continued to remain on the premises, a higher rent at the rate of Rs. 14 per mensem was to be paid. The present suit is for recovery of the difference in rent from 1st July, 1949 to 12th January, 1951, at the rate of Rs. 5 per mensem. The defendant contested the suit on the ground that the agreement was null and void and was against the provisions of the Madras Buildings (Lease and Rent Control) Act,. 1946, and therefore the agreement could not be enforced. There is a further contention that since the plaintiff had received without protest the rent at the rate of Rs. 9 per mensem even after 1st July, 1949, he had waived the claim for the increased rent. The lower Court rejected both these contentions and decreed the suit. The question for consideration is whether the agreement pleaded can be enforced or not.

In Moses Pillai v. Govindan1, Govindarajachari, J., in construing clause 7(a) of the Madras House Rent Control Order, which was one of the predecessors of the present Act, held that the language of clause 7(a) of that order is peremptory and permits an increase in rent only where some addition, improvement or alteration such as is described in that clause has been carried out at the landlord’s expense . after the fixation of the rent. In that case also there was an agreement dated 4th February, 1942, which provided that the tenancy shall be for a period of one year from that date and during the period the rent was fixed at Rs. 40 per month. After the expiry of the period the tenant was to deliver possession of the house to . the landlord but if he failed to deliver possession then the tenant agreed to pay a rent at the rate of Rs. 45 per mensem till possession was delivered over to the landlord. The landlord filed a suit to recover the higher rate of rent and it was contended that the stipulation for the payment of increased rent was not enforceable. Accepting that contention the learned Judge held that the provisions of clause 7 (a) of the order would apply even though the parties had contracted to the contrary. The result was that the landlord was held entitled only to the lower rate of rent as agreed to. It is contended for the petitioner that this decision would apply even under the present Act, because under section 6 a landlord is not entitled to claim anything in excess of the fair rent. Section 6 runs as follows:-

“6. When the Controller has determined the fair rent of a building-

(a) the landlord shall not claim or receive any premium or other like sum in addition to fair rent or any rent in excess of such fair rent, but the landlord may stipulate for, and receive as advance an amount not exceding one month’s rent;

(b) any agreement for the payment of any sum in addition to rent or of rent in excess of such fair rent except in cases falling under section 5 or clause (a) of this section shall be null and void in respect of such addition or excess and shall be construed as if it were an agreement for payment of the fair rent;.......”

Learned counsel for the respondent wants to escape from the effects of this section by saying that such an agreement can be declared null and void only where the fair rent of the building has been fixed under section 4 of the Act, and an increase in such fair rent has been allowed under se’ction 5 of the Act. Section 4 deals with the determination of fair rent on an application by the tenant or the landlord; and how the same has to be arrived at is set forth in detail in that section. Section 5 lays down that when the fair rent of a building has been fixed under section 4, no further in