GEORGE OAKES LTD Vs. CHIEF JUDGE, SMALL CAUSES COURT

JUDGEMENT

(1.) 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. Jagannathdas Govindas, : AIR1950Mad284 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 [15] 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 thetenant who could approach the Controller for that relief. Obviously, a person cannot be said to hive abandoned a rigut by reason of aa 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 fair rent. In Raja Chetti's case, : AIR1950Mad284 , the lease was executed long after the commencement of Madras Act XV [15] of 1946 and the parties were aware that under Section 1 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.

(2.) 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.

(3.) 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 Chetti's case. : AIR1950Mad284 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 anexpress 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 consacutive months. Yiswanatha Sastri, J.