Kantilal Popatilal vs Dharamshi Zinabhai

This appln is preferred by the original pltf, & it arises under Saurashtra Govt. Ordinance No. LXI (61) of 1948, adapting The Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 (No. LVII (57) of 1947).

The question is whether a tenant, who is governed by this Act, can contract himself out of the provisions of the Act, by waiving certain benefits conferred on him by the Act. The material condition in the rent note was that the tenant agreed to vacate the premises whenever the landlord asked him to do so. The tenant further agreed not to rely on the provisions of the Rent Act in his favour, whenever the landlord asked him to vacate if he required the premises for his own use. The landlord filed the present suit for eviction on the ground that he required the premises for his own use.

Both the lower Cts. have held that the landlord is not entitled to recover possession, because taking all the circumstances of the case into consideration, there would be greater hardship to the tenant if he has to vacate than to the landlord, if the tenant is not evicted under provisions of Section 13(2), Rent Act. It is further held that the conditions in the rent note, agreed to by the tenant, do not estop him from relying on the provisions of Section 13 of the Act inasmuch as they would apply even in spite of a contract to the contrary. In coming to that decision, the lower appellate Ct has relied on a decision of this Ct. in ''S.A. No. 88 of 1949 Narandas Raghavji v. Vithaldas Odhavji'', decided on 22-12-1949.

The landlord has filed the present revn appln & the only ground, which is pressed by Mr. Mankad on his behalf, is that the lower appellate Ct was wrong in holding that the tenant was entitled to the benefits of the provisions of Section 13. Rent Act, in spite of his having waived them in the rent note. In our view the decision of the lower Ct is correct. Section 12(1) says that

A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready & willing to pay, the amount of the standard rent & permitted increases, if any, & observes & performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act.

The last words "in so far as they are consistent with the provisions of this Act" are very material. They did not occur in Section 9(1) of the previous Act which corresponded to the present Section 12(1). Section 9(1) only provided that

The landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready & willing to pay, rent to the full extent allowable by this part & performs the other conditions of the tenancy.

It may also be noted that both the Sections do not open with the words ''Subject to a contract to the contrary''. Not only that, but in Section 12(1) of the present Act, the words which have been added to Section 9(1) of the previous Act, clearly show an intention on the part of the Legislature that the tenant was bound to perform only those conditions of the tenancy which were consistent with the provisions of the Act. In other words, even if he had agreed to any conditions which might be inconsistent with the provisions of the Act, he could still claim the benefit of Section 13, if those conditions are inconsistent with the provisions of that section. The addition in Section 13 seems to have been made following the language used in the English Statute & there on account of the words "in so far as they are consistent with the provisions of this Act", it has been held that a clause in the lease that the tenant agrees to give up possession at the end of the term of his tenancy is invalid, & that although the tenant has contracted to give up possession or has himself given notice to quit, the Ct may not make an order for the recovery of possession unless the case falls within the provisions of the Tenancy Act see.... Halsbury''s Laws of England p. 329, para 392. It therefore appears to us that the addition of these words by the Legislature in Section 12(1) of the present Act are significant & shows an intention to give the tenants the benefits of the provisions of the Act in spite of any contract to the contrary. We have adopted the same principle in our previous decision, ''Civ. S.A. No. 88 of 1949''.

Mr. Manad relies on a decision of the Madras H.C. reported in S. Raja Ghetty and Others Vs. Jagannathadas Govindas and Others, . There it is held that

Every one has right to waive & to agree to waive the advantage of a law or rule made solely for the benefits & protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy.

In that case the lease expressly provided that if the rent remained unpaid for two tenancy months after it became payable, the landlord would be entitled to re-enter upon the demised premises, & it was held that the Madras Act XV (15) of 1946 did not apply as the parties had expressly entered into a contract inconsistent with it, & their right should, therefore, be governed by their express contract. We do not know whether in the Tenancy Law which was applicable to the facts of the Madras case, there was a provision similar to the one which we have in Section 12(1), or whether the provision there was similar to that in Section 9(1) of our old Act. We do not think, therefore, that the decision of the Madras H.C. is against the view which we have taken. On the other hand, we find a recent decision of the Bombay H.C. reported in Gurupadappa Shivlingappa Vs. Akbar Sayad Budan Kadri, , which adopts the same view as we have taken here. In that case, instead of a rent note, there was a consent decree between the parties in which the tenant admitted that he was a monthly tenant, & agreed to deliver possession of the premises on a certain date, & to pay rent every month till the expiry of that period. In spite of these provisions in the consent decree, it was held that they were no bar to the application of the statutory provisions of the Act in Section 13, & that if the Ct. held that the tenant was entitled to the benefit of those provisions, the landlord can not evict the tenant in spite of his having agreed to do so in the consent decree.

Mr. Mankad also relies on a decision of the Bombay H.C. reported in D.N. Cooper Vs. Shiavax Cowasji Cambata, . It is there laid down that

a Court of Law would not permit the sanctity of obligations or of contracts to be interfered with unless the statute in express terms permits a violation of that sanctity.

As we stated above Section 12(1) of the present Act is different from Section 9(1) of the previous Act, inasmuch as the words "in so far as they are consistent with the provisions of this Act" are inserted in Section 12(1), as they were not included in Section 9(1) of the previous Act. In the Bombay case D.N. Cooper Vs. Shiavax Cowasji Cambata, the Ct. was dealing with a case of sub-tenancy u/s 12, & reading Sections 9 & 10 together, it held that there was no bar to the parties having agreed to their rights being governed in a particular manner, & that Section 10 did not deal with contracts between the landlord & tenants as regards subletting. It dealt with the law as it then stood between the landlord & the tenant. That decision therefore does not apply to the facts of the present case. Here we are governed by Section 12(1), & we have to ignore any conditions in the rent note which are Inconsistent with the provisions of this Act. In our view, the condition that the tenant was to deliver possession of the property whenever the landlord required him to do so is a condition which is inconsistent with those mentioned in Section 13 of the Act, under which it is made obligatory for the Ct. to enquire whether the landlord reasonably requires the premises for his own use, & whether greater hardship would be caused to the tenant if the eviction order is made than to the landlord if it is not made. For these reasons, we are of the opinion that on the finding of both the lower Cts. that there would be greater hardship to the tenant than to the landlord, the decision to which they have arrived at is correct & must be confirmed. The appln. is, therefore, dismissed with costs.