ASHRAF ALI Vs. ARMAN KHAN

JUDGEMENT

(1.) This appeal turns on a provision for renewal contained in a lease. The lease provides for a demise for a period of nine years at a rent which is more than the rent which the landlord the raiyat, is entitled to exact from the under-raiyat under the Bengal Tenancy Act. The lease ends with this stipulation that the landlord will execute a fresh kabuliyat on the expiry of the period and the question that now arises is whether the tenant is entitled to a renewal by virtue of that provision. The two lower Courts decided that he was entitled to a renewal and Mr. Justice Newbould has agreed with their conclusion and this Letters Patent Appeal is against the decision of Mr. Justice Newbould. Now what is stated is this that it was a term of the renewal that the tenant should observe all the provisions of the lease and that inasmuch as he has declined to pay rent at the higher rate reserved in the lease and thus has broken one of the covenants he is not entitled to a renewal at the expiration of the period. The Bengal Tenancy Act does not make a provision for a higher rate of rent than what the Act allows illegal but it provides that the higher rent cannot be enforced against a tenant. It seems to me that the tenant has observed all the provisions of the lease that he is by law bound to observe and the mere fact that he has declined to pay rent at a rate which he is not bound to pay by virtue of the provisions of the Tenancy Act does not, in my opinion, disentitle him from obtaining the renewal which he now claims. The Tenancy Act was enacted amongst other things for the protection of the tenant and I think that it would be a dangerous principle if the landlord by indirect means of this nature were in a position to exact or try to exact a higher rate of rent from the tenant than the law allows and I can well imagine that it would be a great inducement to a tenant to pay a higher rate of rent than he is bound to pay under the law if he is sure that by so doing at the end of his term he will secure a renewal of his tenancy for another period and that he cannot otherwise obtain a renewal.

(2.) I think that for the reasons I have indicated the decision of Mr. Justice Newbould is correct and that this Letters Patent Appeal should be dismissed. My learned brother takes a different view but under the circumstances in accordance with the practice of this Court the appeal is dismissed and with costs. Cuming, J.

(3.) This is an appeal against the decree of my learned brother Mr. Justice Newbould dismissing an appeal against the decision of the Additional District Judge of Noakhali which affirmed the decision of the First Munsif of Lakhipur. The facts are these: The plaintiff is a raiyat and the defendant is an under-raiyat. They entered into an agreement whereby the plaintiff covenanted to let his land to the defendant for nine years. The defendant agreed to pay the landlord rent at higher rate than was recoverable under Section 48 of the Bengal Tenancy Act and the tenant agreed that if he did not pay rent at that rate he was liable to be ejected without notice.