The Judgment of the Court was delivered by

Vithayathil, J.:— The defendants are the appellants. The appeal is from the decision of M.S Menon, J., in Second Appeal No. 953 of 1952 of this Court and was filed with leave granted by him. The Division Bench before which the appeal came up for hearing referred it to a Full Bench by the following Order of Reference:

“The questions of law raised in this appeal are of great importance and far-reaching consequences. The decree that is sought to be enforced against the appellants is based on a compromise entered into between the defendants and the plaintiffs in O.S No. 191 of 1123 on the file of the District Munsiff's Court at Kotayam.

In execution the defendants claimed the benefits of the Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950. The decree-holders maintained that the undertakings embodied in the compromise petition amount to a waiver by these tenants of the benefits which they could have availed of under the Rent Control Order and that, therefore, they cannot now invoke the aid of that Order.

This contention was upheld in the decision appealed against and in doing so the decision of this Court in — ‘Sivarajan v. Official Receiver, Quilon District Court’, AIR 1953 Trav-C 205 (A) was followed. That decision in a way supports the decree-holders' contention. All the same, it cannot be denied that there is considerable force in the appellants' contention that the facts of that case are clearly distinguished from the facts of the present case.

It is also argued that even without any pronouncement on the questions of waiver and estoppel the decision in that case would be rested on the other aspects peculiar to that case. In the present case the questions of waiver and estoppel directly arise for decision. On these questions the view taken in AIR 1953 Trav.-C 205 (A) does not appear to be absolutely in favour of the extreme position contended for on behalf of the decree-holders.

It has only been stated that under certain circumstances there could be a waiver of special statutory rights conferred on particular class of persons for their own benefit. On behalf of the appellants the extreme position taken is that there could be no such waiver at all. Different aspects of this question have been considered in a series of decisions by Indian High Courts and also by English Courts. It cannot be said that there has been unanimity in the views as expressed in these decisions.

We think that it is very desirable that the different aspects of the points raised in this appeal are fully examined and an authoritative ruling given by a Full Bench of this Court on the question as to whether there could be a waiver of the rights conferred by the Buildings (Lease and Rent Control) Order and if so to what extent and under what circumstances. Accordingly we refer this case for decision by a Full Bench”.

Sd/- K. Pankaran, J.

Sd/- P.K Subramania Iyer, J.

2. The suit was instituted on 8-5-1123 by the original plaintiff, who is now dead, against defendant 1, the Managing Director of a company known as Punnan and Kurup (India) Ltd., for recovery of a building with arrears of rent. Defendant 2 — company — was subsequently impleaded in the suit. After the death of the original plaintiff, plaintiffs 2 to 4, her legal representatives, continued the suit. When the suit was instituted the Travancore Buildings Rent Control Order, 1122, was in force. It was alleged in the plaint that the plaintiff was entitled to recover possession of the building as she required it for her own residence as the rent was in default from Chingom 1123 onwards and as the defendant had denied the title of the plaintiff in the reply notice sent by him on 3-1-1123.

3. Defendant 1 contended that the plaintiff had no title to the building and to the property in which it was situated and that they had been sold to him by the original owner thereof. Defendant 2 — company — also raised the same contentions. The suit was subsequently compromised by the parties and a compromise petition was filed in Court on 25-7-1951. The defendants admitted the title of the plaintiffs to the building and its site. They also paid the rent due to the plaintiffs till the end of Karkatagom 1126.

4. The plaintiffs allowed the defendants to occupy the building for one year more from 1st Chingom 1127 on a monthly rent of Rs. 40/- the rent being payable before the 30th of every month. The defendants agreed to surrender possession of the building to the plaintiffs after 31st Karkatagam 1127 (15-8-1952). If the defendants failed to surrender possession within that date the plaintiffs could recover possession of the building by executing the decree.

5. The defendants also agreed to pay rent at the rate of Rs. 50/- a month from the date of the expiry of the term of one year. It was provided that if default was made in the payment of the rent for any one month the defendants would be liable to pay enhanced rent at the rate of Rs. 50/- a month from the date of default and also to surrender possession even before the expiry of the term. The defendants recognised the right of the plaintiffs to be in possession of the compound in which the building is situated. The suit was decreed in terms of the compromise.

6. After the expiry of the term of one year the plaintiffs applied for execution of the decree for recovery of possession of the building. Defendant 1 objected claiming benefit under the Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950. The Court held that the defendants were not entitled to the benefit under the Order for three reasons, viz., (1) the defendants have waived the benefit by agreeing, after the Order came into force, to surrender possession of the building after one year; (2) the defendants denied the title of the plaintiffs and, therefore, forfeited the benefit under the Order; and (3) the execution Court cannot go behind the decree which allowed recovery of possession of the building.

7. In appeal filed by defendant 1 the decision of the Munsiff was reversed by the District Judge who held that the defendants were entitled to the benefit, under the Order. Second Appeal No. 953 of 1952 was preferred by the plaintiffs from the decision of the District Judge. M.S Menon, J. allowed the Second Appeal following the decision in — AIR 1953 Trav-C 205 (A) and granted leave to appeal from his decision.

8. The main question for decision in the appeal is whether the defendants have waived the benefits under the Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950. But, before going into that question, it is necessary to consider certain other arguments advanced both on behalf of the appellants and on behalf of the respondents.

9. Learned counsel for the appellants contended that, under the terms of the compromise a fresh tenancy was created by the parties and that the claims in respect of that tenancy can be enforced only by means of a separate suit and not in execution. Plaintiffs claimed two reliefs in the suit; one for recovery of arrears of rent and the other for eviction. Rent due till the date of the compromise was paid by the defendants and the claim for eviction was given up by the plaintiffs.

10. It was, therefore, contended that the provision in the compromise decree relating to the new tenancy for a further term of one year is not one that relates to the suit and that the execution Court cannot execute that portion of the decree. Reference was made to O. 23 R. 3 of the CPC, which reads:

“Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suits”. In support of his position, learned counsel relied on the decisions in — ‘Balesar Misir v. Tekesar Misir’, AIR 1939 All 454 (B) and ‘Dhan Mia v. Jamila Khatun’, AIR 1952 Assam 21 (C). In the former case it was held that only that portion of the compromise decree which is confined to the subject matter of the suit can be enforced in execution and that any agreement as to matters extraneous to the suit can be enforced only by means of a separate suit. In the latter case, the suit was for recovery of arrears of rent and for eviction.

11. The suit was compromised by the parties and under the terms of the compromise the defendant was allowed to continue as a tenant for a further period of three years on payment of rent at a particular rate and he agreed to surrender possession of the holding after the expiry of the term. As the defendant refused to surrender possession after the expiry of the term the plaintiff sought to recover possession of the holding by executing the decree. The defendant contended that the agreement regarding fresh tenancy did not relate to the suit and that the plaintiff could enforce his claim under that agreement only by means of a fresh suit. This contention was accepted by the High Court.

12. We do not think that these decisions apply to the facts of the present case. Here, one of the reliefs claimed in the suit was recovery of possession of the building. The compromise decree allowed recovery of possession of the building after the expiry of a term of one year. It cannot, therefore, be said that portion of the decree is not one that relates to the suit.

13. The fact that the defendants agreed to pay rent at a higher rate during the period they were allowed to continue in possession of the building I cannot affect the question. In — AIR 1939 All 454 (B) the compromise contained an agreement for exchange of properties not covered by the suit and that agreement was embodied in the decree. It was clearly an agreement that did not relate to the suit.

14. In AIR 1952 Assam 21 (C), the compromise only contained the terms of a fresh agreement of tenancy for a period of three years and did not authorise the plaintiff to recover possession of the holding after the expiry of that term by executing the decree. Consequently the decree did not provide for recovery of possession of the holding after the expiry of the term.

15. In the present case the compromise decree expressly provides for recovery of possession of the building after the expiry of a period of one year. It has also to be observed that this is a contention that was not raised by the defendants either in the Courts below or before the Judge who heard the Second Appeal. Nor is this ground taken in the memorandum of appeal.

16. On behalf of the respondents it was argued that after the date of the compromise decree the defendants were only in the position of licensees and not tenants and that, therefore, they are not entitled to the benefit under the Buildings (Lease and Rent Control) Order.

17. According to learned counsel for the respondents, under the terms of the compromise the defendants were only permitted to occupy the building for a limited period and it would not amount to creation of a tenancy. Reliance was placed on the decisions in ‘Ramjibhai Virpal v. Gordhandas Manganlal’, AIR 1954 Bom 370 (D) and ‘Sheodhari Rai v. Suraj Prasad Singh’, AIR 1954 SC 753 (E). This also is a contention that was not raised in the Courts below.

18. The distinction between a lease and a licence has been considered by this Court in — ‘Ouseph v. Kunjathu’, AIR 1951 Trav-C 189 (F), ‘Venkiteswara v. Padmavathi Ammal’, AIR 1953 Trav-C 582 (G) and in S.A No. 296 of 1953 (TC)(H). In AIR 1951 Trav-C 189 (F) it was held that the question whether an agreement created a lease or a licence would depend upon the construction of the agreement, that if upon such construction it is seen that there was an intention to transfer an interest in the property, the transaction would be a lease and that, if there was no such intention, the transaction would be only a licence.

19. To the same effect is the decision in AIR 1953 Trav-C 582 (G). In S.A No. 296 of 1953 (TC)(H) it was held that the distinguishing feature of a lease is that the lessee will have exclusive possession of the property while in the case of a licence the licensee is only given the right to use the property in a certain way and on certain terms and that, while in the case of a lease there is a transfer of the right to enjoy the property which amounts to transfer of an interest in the property, in the case of a licence there is no transfer of any interest in the property. Lease is defined in Section 105 of the Transfer of Property Act as follows:

“A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crop, service or any other thing of value, to be rendered periodically or on specified occasions, to the transferor by the transferee who accepts the transfer on such terms”.

20. Licence is defined in Section 52 of the Easements Act as follows:

“Where one person agrees to another or to a definite number of other persons; a right to do, or continue to do, in or upon the immovable property of the grantor, something which, would in the absence of such right be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence.

The question whether the position of the defendants after the date of the compromise decree was that of tenants or of licensees will have to be decided upon the construction of the terms of the compromise in the light of the above definitions.

21. Under the compromise the defendants were given the right to be in possession of the building for a period of one year from 1st Chingom 1127. The defendants undertook to pay a monthly rent of Rs. 40/- for that period. If default was made in the payment of the rent the plaintiffs could recover possession of the building even before the expiry of the term with enhanced rent at the rate of Rs. 50/- a month.

22. We have no doubt that these terms amount to creation of a lease arrangement. There is a transfer of the right to be in possession of the building for a period of one year. The consideration for the transfer is the agreement by the defendants to make periodical payment of rent at a particular rate. These terms are consistent with the definition of lease as contained in Section 105 of the Transfer of Property Act.

23. We do not think that the compromise only amounted to the granting of a permission to the defendants by the plaintiffs to use the building in a certain way and on certain terms while the plaintiffs themselves retained its possession and control. In fact what was done by the parties was to extend the original lease arrangement for a further term of one year with some altered terms. The term “tenant” is defined thus in the Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950:

“Tenant means any person by whom or on whose account rent is payable for a building and includes a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a building by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter house or of rents for shops has been farmed out or leased by a municipal council”.

24. We have no doubt that the defendants in this case come within the definition of the term.

25. The decision in AIR 1954 Bom 370 (D) referred to by learned counsel for the respondents does help him to some extent. In that case when the landlord sued to eject the tenant of a building the latter resisted the claim. Ultimately the suit was compromised and a decree was passed in terms of the compromise. The decree provided that the defendants should vacate the building within two years and also pay a particular amount every month as mesne profits.

26. The decree also gave the plaintiff the right to recover possession of the building even before the expiry of the term in case the defendant failed to pay mesne profits for three months. Upon a construction of the terms of the decree the learned Judges held that although the defendant had the right to be in exclusive possession of the building for a particular period there was no transfer of any interest in property in his favour, that the defendant was free to vacate the building before the expiry of the term, that the agreement was for paying mesne profits and not rent and that for these reasons it could not be said that the transaction was a lease within the definition of Section 105 of the Transfer of Property Act.

27. The learned Judges were of opinion that merely because the defendant had the right to be in exclusive possession of the building for a particular period the transaction would not amount to a lease, if the other requirements of the section were not satisfied. Gajendragadkar, J. who wrote the leading judgment in the case discussed the question with reference to English cases, and observed:

“It may be stated, with respect, that the tendency of recent decisions, appears to widen the scope of the licencee's rights and to hold that if a licencee is also given the right to exclusive occupation for a stated period, this right does not convert the licence into a lease but merely adds certain contractual rights to the licence”.

28. Reference was made to ‘Booker v. Palmer’, 1942-2 All ER 674 (I); ‘Marcroft Wagons Ltd. v. Smith’, 1951-2 KB 496 (J) and ‘Errington v. Errington and Woods’, 1952-1 All ER 149 (K). In the last case Denning, L.J after referring to several English decisions laid down the following proposition:

“The result of all these cases is that, although a person who is let into exclusive possession is ‘prima facie’ to be considered to be a tenant nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy. Words alone may not suffice.

Parties cannot turn a tenancy into a licence merely by calling it one. But if the circumstances and the conduct of the parties show that all that was intended was that the occupier should be granted a personal privilege with no interest in the land he will be held only to be a licensee’.

As a result of the discussion of the case law on the point, Gajendragadkar, J. came to the following conclusion:

“It would thus be seen that the trend of recent English decisions is to cast a serious doubt on the correctness of the broad proposition that exclusive possession necessarily and in every case negatives the presence of licence and establishes the presence of a lease”.

29. The learned Judge, however, observed that it was not

“always safe to seek for guidance from English decisions on matters where we are governed by the provisions of a statute”.

30. The learned Judge also observed that it could not be said that the defendant was a mere licencee. This is how the learned Judge described the position of the defendant.

“This exclusive possession gives him rights which are larger than those of a licencee technically so-called under the provisions of Section 52 of the Easements Act, but which are less than those of a lessee properly so-called under the provisions of Section 105 of the Transfer of Property Act”.

31. The following passage in the judgment gives the reasons that induced the learned Judge to come to the above conclusion:

“I must, therefore, hold that the scheme of agreement, the absence of any words indicating demise as such, the emphasis on the defendant's undertaking to vacate on or before the specified date, the use of the words “mesne profits”, liberty left to the defendant to vacate as soon as he liked, coupled with the; circumstances under which the contract came to be made, lead to the inference that the document does not evidence the creation of a lease-hold right; it only enabled the defendant to remain in possession of the property permissively at the latest until 22-10-1949”.

32. The other learned Judge, Vyas, J. who agreed with the view of Gajendragadkar, J. relied on the same circumstances. The decision of the case depended upon the construction of the terms of compromise decree and the circumstances under which the compromise was entered into. As stated already, the question whether a transaction amounts to a lease or only to a licence depends primarily upon the construction of the terms of the agreement.

33. The terms of the compromise decree in the Bombay case are not exactly the same as those of the present case. Here, the defendants undertook to pay rent and not “mesne profits” for the period they were allowed to occupy the building.

34. The other decision relied on by learned counsel for the respondents, viz., AIR 1954 SC 758 (E) has no application to the present case. What was held in that case was that the mere fact that the defendants — 1st party in the case were paying rent for the lands to the superior landlords was not inconsistent with their being in permissive occupation of the lands under an amicable arrangement with the defendants — 2nd party without there being any relationship of landlord and tenant between the two sets of defendants. It was not a case of the persons in possession, paying rent to those who claimed to be their landlords.

35. For the reasons already stated, we are unable to accept the argument of learned counsel for the respondents that the relationship that subsisted between the plaintiffs and the defendants after the date of the compromise decree was not that of landlord and tenant and that the Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950, will not apply to the case.

36. Another argument advanced on behalf of the respondents was that the defendants forfeited the benefit under the Buildings (Lease and Rent Control) Order by reason of their denial of the title of the plaintiffs to the building in question. Clause 9(1) of the Order reads:

“A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this clause:

Provided that nothing contained in this clause shall apply to a tenant whose landlord is Government:

Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is ‘bona fide’ and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this clause notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded”.

37. Sub-clause (2) gives the landlord right to apply to the Rent Controller for eviction of the tenant if certain contingencies happen, and one of such contingencies is that mentioned in sub-cl. (2)(vi) which is to the following effect:

“that the tenant has denied the title of the landlord or claimed a right of permanent tenancy and that such denial or claim was not ‘bona fide’”.

38. The wording of sub-cl. (2) shows that the landlord is bound to apply to the Controller if he wants to evict the tenant for any of the reasons mentioned in the sub-clause. The wording is “A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf”.

39. In this case, no application was made by the plaintiffs to the Controller either for a decision on the question whether the denial of the plaintiffs' title by the defendants was ‘bona fide’ or not, as provided in proviso 2 to cl 9(1) or for an order under sub-cl. (2)(vi) for evicting the defendants on the ground that they denied the title of the plaintiffs and that such denial was not ‘bona fide’.

40. It was, however, argued for the respondents that the Rent Control Order that should apply to the case is the one that was in force when the suit was instituted, namely, the Travancore Rent Control Order, 1122, and that under cl. 6 of that Order no decision by the Controller on the question whether the denial of the title of the landlord by the tenant was ‘bona fide’ or not was necessary for a decree being given for eviction on the grounds of denial of the landlord's title. Clause 6(1) was to the following effect:

“A tenant in possession of a building shall not be evicted therefrom whether in execution of a decree or otherwise and whether before or after termination of the tenancy except in accordance with the provisions of this clause:

Provided that nothing contained in this clause shall apply to cases where the tenant denies the title of the landlord to the building or claims right of permanent tenancy in the building so long as such denial or claim is put forward”.

41. There was also no provision in that Order similar to the one contained in sub-cl. (2)(vi) of the Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950. But the Order that will apply to the case is the Order of 1950 which was in force when the defendants were sought to be evicted and not the one that was in force when the suit was instituted.

42. The date of the institution of the suit is not material so far as this question is concerned. Notwithstanding anything contained in the Rent Control Order the Court can pass a decree for eviction, and the question whether the tenant is entitled to the benefit under the Order will arise only when he is sought to be evicted in pursuance of the decree.

43. Clause 6(1) of the Order of 1122 and cl. 9(1) of the Order of 1950 would apply to a case in which there is a decree for eviction. The clauses provide that notwithstanding such a decree the tenant will not be liable to be evicted except in certain specified cases.

44. That the Rent Control Order does not affect the jurisdiction of the civil Court to pass a decree for eviction of a tenant has been held by this Court in — ‘Bharat Insurance Co. Ltd. v. Bivathu’, AIR 1953 Trav-C 577 (L) following three decisions of the Cochin High Court, i.e, ‘Varunny v. Ouseph’, 1122 Cochin LR 252 (M), ‘Eastern Trading Company Ltd. v. Abdul Wahab and Co.’, 1122 Cochin LR 436 (N), and ‘Abdul Kader Yosuff v. Abdul Karim Mohamed’, 1122 Cochin LR 477 (O), the decision of the Travancore High Court in — ‘Chandrasekharan Nair v. Rowther’, 1947 Trav LR 813 (P) and that of the Madras High Court in — ‘Muhammad Unny v. Melepurakkal Unniri’, AIR 1949 Mad 765 (Q).

45. To the same effect is the decision of this Court in — ‘Jagajeevan v. Asma Bibi’, AIR 1953 Trav-C 541 (R). It follows from this that it is the Travancore-Cochin Buildings (Lease and Rent Control) Order. 1950, which was in force when the defendants were sought to be evicted, that should apply to the case.

46. That Order requires that before a tenant is sought to be evicted on the ground of denial of title of the landlord there should be a decision of the Rent Controller that the denial was not bona fide before the civil Court can pass a decree for eviction on that ground or there should be an order by the Rent Controller for eviction of the tenant on that ground.

47. Since the plaintiffs in this case did not apply to the Rent Controller for a decision on the question as provided in cl. 9(1) or for an order of 1 eviction under sub-cl. (2)(vi) they are not entitled to contend that the defendants are liable to be evicted on the ground of their denial of the plaintiff's title.

48. Yet another argument advanced on behalf of the respondents was that the execution Court cannot question the correctness of the decree which allows eviction of the defendants and is bound to execute that decree. We do not think that this argument has any force in view of the mandatory provision contained in cl. 9(1) of the Buildings (Lease and Rent Control) Order, 1950.

49. This is not a case of the execution Court questioning the correctness of the decree. It is a case of the Statute prohibiting the Court from executing a decree for eviction except in accordance with the provisions of the Statute. Learned counsel for the respondents relied on the decision of the Madhya Bharat High Court in — ‘Jalan Singh v. Fida Hussain’, AIR 1954 Madh B 89 (S).

50. In that case the contention raised by the defendant was that the compromise decree which allowed eviction was opposed to the provisions of the Madhya Bharat Sthan Niyantran Vidhan (Samvat 2006), an Act similar to the Buildings (Lease and Rent Control) Order of Travancore-Cochin. The High Court held that the execution Court was not competent to go into the question whether the compromise decree was one passed according to law.

51. But in the Madhya Bharat Act there is no provision similar to the one contained in cl. 9(1) of the Travancore-Cochin Order prohibiting eviction of tenants in execution of decrees. The question that came up for decision before the Madhya Bharat High Court was whether the execution Court could question the correctness of the decree and not whether it was prohibited from executing the decree by reason of a statutory provision. That decision is, therefore, of no assistance to the respondents.

52. The main question for decision in the appeal is, as stated already, whether the defendants must be deemed to have waived the benefit under the Travancore-Cochin Buildings (Lease and Rent Control) Order. 1950. The question of waiver does not really arise for consideration in this case in view of the mandatory provision contained in Cl. 9(1) of the Order which is to the effect that a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of the clause. The decree may be a decree passed after contest, or one passed ex parte, or a consent or compromise decree.

53. Whatever may be the nature of the decree, eviction of a tenant in execution of the decree is prohibited under the clause except in certain specified cases. Since the provision contained in the clause is mandatory, and consent and compromise decrees are not exempted from the ambit of the clause, the Court is debarred from evicting tenants in execution of compromise or consent decrees also except in accordance with the provisions of the clause.

54. It is a case of the Court having no jurisdiction to execute the decree for eviction by reason of the statutory prohibition and, therefore there is no scope for the application of the doctrine of waiver. “Consent cannot give jurisdiction and, therefore, any statutory objection which goes to the jurisdiction does not admit of waiver.” (Maxwell, Edn. 10, p. 392).

55. A similar question came up for consideration before the Court of Appeal in — ‘Barton v. Pincham’, 1921-2 KB 291 (T). Section 5, sub-s. (1), Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, provided:

“No order or judgment for the recovery of possession of any dwelling house to which this Act applies, or for the ejectment of a tenant therefrom shall be made or given unless

(a) any rent lawfully due from the tenant has not been paid, or any other obligation of the tenancy (whether under the contract of tenancy or under this Act) so far as the same is consistent with the provisions of this Act has been broken or not performed; or

(c) the tenant has given notice to quit and in consequence of that notice the landlord has contracted to sell or let the dwelling house or has taken any other steps as a result of which he would, in the opinion of the Court, be seriously prejudiced if he could not obtain possession.

56. The landlord of a house to which the above enactment applied, wishing to sell the house with vacant possession, made an agreement in writing with his tenant that in consideration of a present payment the tenant should give notice to quit and should peaceably yield up possession on a certain day. The landlord made the payment and the tenant gave the notice to quit; but when the day arrived the tenant refused to give up possession.

57. The landlord brought an action for possession. No evidence was given that he had, otherwise than as aforesaid, contracted to sell or let the house or taken any other steps as a result of which he would be seriously prejudiced if he could not obtain possession. It was held that the jurisdiction of the court to make an order for possession: was restricted by the Act and that if the conditions upon which alone an order could be made were not fulfilled, an order could not be made ‘in invitum’ notwithstanding any agreement of the parties to the contrary. Bankes, L.J, observed:

“In my opinion. S. 5 is an instance of a case where the Legislature has in clear and unmistakable language restricted the jurisdiction of the court, and where no agreement between the parties can give the court a jurisdiction which the Legislature has said it is not to exercise.”

58. Scrutton, L.J, said:

“A tenant who agrees in the contract of tenancy to give up possession on a named day does not contract out of the Act, and the agreement does not prevent the provisions of the Act from applying, and it is difficult to see why an agreement of the same effect made after the contract of tenancy should have any better result.” Atkin, L.J, observed:

“The section appears to me to limit definitely the jurisdiction of the courts in making ejectment orders in the cases of premises to which the Act applies Parties cannot by agreement give the courts jurisdiction which the Legislature has enacted they are not to have.”

59. In ‘Griffiths v. Davies’, 1943-1 KB 618 (U). Lord Greene M.R said:

“I do not think I need refer at length to authority for the proposition that a statutory prohibition or direction cannot be over-ridden or defeated by a previous judgment between the parties. If authority for that purpose were required, it is to be found in Lord Shaw's speech in the House of Lords in — ‘Bradshaw v. M'Mullan’, 1920-2 IR 412 (V), a statement of the law which is again referred to in the judgment of the Privy Council in — ‘Maritime Electric Co. Ltd. v. General Dairies Ltd.’, AIR 1937 PC 114 (W). It is a principle which manifestly is right, quite apart from authority.”

60. The question was discussed again in — ‘Brown v. Draper’, 1944-1 KB 309 (X). In that case the tenant of a house who was entitled to the protection of the Rent Restrictions Act, after occupying it for some months, left it owing to disputes with his wife, but allowed his wife and child to occupy it and to use his furniture and continued to pay the rent.

61. Having received notice to quit, he stopped paying the rent, but did not revoke his leave to the wife to reside in the house; nor did he remove his furniture. The landlord later brought proceedings against the wife for trespass, and at the hearing the husband, who was not a party to the proceedings, gave evidence that he had no interest in the house.

62. The Court held that the husband was still in possession of the house, that the only way he could be deprived of the protection of the Rent Restrictions Acts was by his going out of possession or by his having an order for recovery of possession made against him, and that he could not contract to give up his right to claim the protection of the Acts. Lord Greene, M.R observed:

“A tenant remaining in possession cannot lawfully contract not to avail himself of the protection which the Acts gave him, if and when the landlord takes proceedings against him to recover possession. If he wishes to place himself outside the protection of the Acts without putting the landlord to the necessity of taking proceedings, his proper course is to deliver up possession.

Unless and until he does so, he is under the shelter of the Acts, whether or not he so desires. No contract, and a ‘fortiori’, no mere statement of his wishes or intentions, can deprive him of the statutory protection. Were the landlord now to take proceedings against the husband to recover possession, the husband could, in our opinion, say that he had changed his mind and that he now wished to avail himself of the protection of the Acts.”

63. This case and ‘1921-2 KB 291 (T)’, were followed by Asquith, L.J, in — ‘Welch v. Nagy’, 1950-1 KB 455 (Y). His Lordship quoted with approval the following observation of Lord Thankerton in — ‘Stone (J. & F.) Lighting and Radio Ltd. v. Levitt’, 1947 AC 209 (Z):

“It is idle to suggest that either estoppel or ‘res judicata’ can give the court a jurisdiction under the Rent Restriction Acts, which the Statute says, it is not to have.”

64. His Lordship further observed:

“In my view the parties cannot, by describing (whether by accident or design) what is in fact an unfurnished tenancy as a furnished or substantially furnished one, alter the fact that the furniture is actually the tenant's and that such a tenancy cannot be a furnished or substantially furnished one.

To treat the tenant here as estopped from denying that the tenancy is unfurnished, when it is in fact unfurnished, is to confer on the courts by the act of one of the parties a jurisdiction (namely, an untramelled power to make orders for possession of premises in fact unfurnished) which Parliament has said that the courts shall not have ………………

Just as in general, parties are not competent to contract out of the protection of the Acts see — ‘Barton v. Fincham’, (T) and — ‘Brown v. Draper’, where the true facts attracted that, protection, so here the tenant cannot, in my view, be estopped from proving the true facts, where those facts attract that protection.”

65. This observation of Asquith, L.J, was quoted with approval by Bucknill, L.J, in — ‘Solle v. Butcher (x)’, 1950-1 KB 671 (Z1). In that case it was held that no rule of estoppel could oust the jurisdiction of the court to decide whether the rent claimed in respect of a dwelling house was sanctioned by the provisions of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920.

66. In — ‘Punamchand Mohta v. S. Mukerjee’, Matter No. 69 of 1951, D/- 10-5-1951 (Cal)(Z2), Bose, J. considered the question with reference to the West Bengal Premises Rent Control Act, 17 of 1950. The learned Judge said:

“In construing the Rent Restrictions Act, 1923, the Court of Appeal in England in the case of 1943-1 KB 623 (U), has held that the principle of estoppel “does not apply where to give effect to it would be to go counter to some statutory direction or prohibition.

The whole scheme of the Act is to prevent a tenant from coming to any agreement or doing anything which shall increase the standard rent in such a way that his conduct or agreement will have any effect whatsoever on that figure. See also 1950-1 KB 671 (Z1).”

67. In — ‘Gurupadappa v. Akbar Sayed’, AIR 1950 Bom 252 (Z3), the plaintiff filed a suit for eviction of the defendant from certain premises on the allegation that the tenancy has been, terminated. The defendant resisted the suit. During the pendency of the suit, the parties entered into a compromise by which the defendant agreed to surrender possession of the premises before 31-1-1948.

68. On the expiry of the term the defendant refused to surrender possession and the plaintiff sought to evict him by executing the decree.. Shah, J. held that since the consent decree created a fresh contractual relationship of landlord and tenant the defendant was entitled to the rights and privileges of a tenant under the Bombay Rents, Hotel and Lodging House Rates Control Act, LVII of 1947, and that he was not liable to surrender possession in spite of the terms of the decree. The learned Judge observed:

“A statutory provision may, either expressly or by implication, prevent execution of a decree according to its term; and the executing court would have no jurisdiction to execute such a decree according to its directions. This is a decree passed with the consent of the parties which created contractual relationship between the plaintiff and the defendant, and I see nothing in the terms of Section 12 of the Bombay Act, LVII of 1947, which prohibits a tenant whose rights arise under a consent decree from obtaining the benefit of that Act.”

69. Reference may also be made to the decision of the Madras High Court in — ‘Moses Pillai v. Govindan’, AIR 1948 Mad 346 (Z4). Govindarajachari, J. in construing Cl. 7(a), Madras House Rent Control Order, held that the language of the clause was peremptory and permitted an increase in rent only if certain conditions were satisfied. In that case also there was an agreement between the parties under which the tenant undertook to surrender possession after a period of one year and to pay rent at a particular rate during that period and at a higher rate after the expiry of the period.

70. The learned Judge held that the provisions of cl. 7(a) would apply even though the parties had contracted to the contrary. To the same effect is the decision of the Madras High Court in — ‘Venkiteswara v. Mohomed Mohibulla’, AIR 1953 Mad 705 (Z5).

71. It will thus be seen that in view of the mandatory provision contained in cl. 9(1) of the Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950, the question of waiver does not really arise for consideration in this case. We will, however, consider the question since it has been dealt with in AIR 1953 Trav-C. 205 (A), which was followed by M.S Menon, J. and since the appeal was referred to a Full Bench for an authoritative ruling on the question.

72. It may at the outset be stated that the compromise petition filed by the parties does not say that the defendants agreed to give up their rights under the Buildings (Lease and Rent Control) Order. There is no reference to the Lease and Rent Control Order at all in the compromise petition.

73. The defendants only agreed to surrender possession of the building after the expiry of one year although under cl. 9(1) of the Lease and Rent Control Order they were not liable to be evicted from the building except in accordance with the provisions of that clause. It may be that the defendants thought that notwithstanding their consent to surrender possession of the building and the decree for eviction that would be passed in the case, they could claim the benefit under the Lease and Rent Control Order.

74. Assuming, however, that the agreement to surrender possession amounts to an agreement not to claim the benefit under the Lease and Rent Control Order, it has to be considered whether the defendants are estopped from claiming that benefit by reason of the agreement.

75. In AIR 1953 Trav-C. 205 (A), the facts were these; The interim receiver appointed by court in insolvency proceedings leased a property with a building thereon for a period of one year. The lessee undertook to surrender possession after the expiry of the period. The lease was after the Travancore-Cochin Buildings (Lease and Rent Control) Order 1950 came into force.

76. Since the lessee refused to surrender possession of the holding after the expiry of the term, the court directed the receiver to recover possession of the same. The lessee contended that the receiver had no power to recover possession from him except by means of a suit and that he was entitled to the benefit under the Buildings (Lease and Rent Control) Order. This contention was repelled by the Insolvency Court and also by the High Court.

77. The High Court held that the lease in question would not come within the purview of the Buildings (Lease and Rent Control) Order. Again, there was a prior order for eviction passed in the case which the lessee had acquiesced in. In the circumstances, it was not necessary for the Court to decide the question of waiver. The learned Judges, however, considered the question and Sankaran, J. observed:

“The object underlying this enactment. (Lease and Rent Control Order 1950) is obviously to regulate the letting out of residential and non-residential buildings and to control the rent that may be levied in respect of such buildings, situated within certain specified areas. To that extent it can be said that this measure was enacted as a matter of public policy.

78. But it has to be remembered that the measure is enacted to benefit only a limited class-of persons dealing with residential and non-residential buildings in particular localities. Such benefits are conferred largely on the tenants in occupation of such buildings though some benefits are conferred on the owners of such buildings as well.

79. It is only where the landlord and the tenant, fail to come to an agreement that either party may seek the benefit and the help conferred by-this enactment. The provisions made to prevent unreasonable eviction of the tenants who are in occupation or use of the buildings taken on rent and also the levy of indiscriminate and unconscionable rates of rent, are undoubtedly intended solely for the benefit and protection of these, individuals in their private capacity.

80. It is up to them to take advantage of such, benefits and protection or to waive them altogether. To give up such benefits and protection, cannot in any sense be said to be illegal or immoral or offending any public right or public-policy. The principle is well settled that everyone has the right to waive and agree to waive the advantage of a law or rule made solely for the benefit and protection of individuals in their private capacity, provided that such waiver does-not result in any infringement of any public right or public policy.

81. A waiver may be by course of conduct or by expressly contracting out of the law provided, for the benefit or protection of the individual. Where the enactment contains an express prohibition against contracting out of it, no question, of waiver can arise. These principles have gained judicial recognition. In — ‘Sobo Square Syndicate Ltd. v. Pollard & Co.’, 1940 Ch 638 (Z6) it was stated that;

‘Where in an Act there is no express prohibition against contracting out of it is necessary to consider whether the Act is one which, is intended to deal with private rights only, or whether it is an Act which is intended, as a matter of public policy, to have a more extensive operation.’

“The Madras High Court had occasion to consider the same question in a more recent case, namely, — ‘Raja Chetty v. Jagannathadas’, AIR 1950 Mad 284 (Z7). That was a case under the Madras Buildings Lease and Rent Control Order of 1946 and there it was ruled that the Act was intended solely for the benefit and protection of the individuals in their private capacity and as such it was open to any such individual to waive such benefits by contracting out of the Act.”

82. Reference was also made to the decision of the Travancore High Court in — ‘Kolappa Pillai v. Savarimuthu Dhasien’, 1943 Trav LR 409 (Z8), and of this Court in — ‘Narayanan Reddiar v. M.N Pattar’, A.S No. 876 of 1120 D/- 19-12-1949 (Z9), in which cases it was held that a debtor could waive the benefits conferred on him under the Travancore Debt Relief Act.

83. In AIR 1950 Mad 284 (Z7), the lease deed provided that if rent remained unpaid for two tenancy months after it became payable the landlord would be entitled to re-enter upon the demised premises. The lease was entered into after the Madras Buildings Lease and Rent Control Act, XV of 1946, came into force.

84. Under S. 7(2)(i) of that Act, the landlord could evict the tenant if default was made in the payment of rent for one month. The High Court held that the Act would not apply since the parties had expressly entered into a contract inconsistent with its provisions and that their rights would be governed by the contract. Rajamannar, C.J said:

“After giving the question our careful consideration we have come to the conclusion that she provisions of Madras Act XV of 1946 would not apply to the lease in question. In coming to this conclusion we have been impressed by the fact that the lease was entered into long after the Act had come into force and it must be presumed that the parties knew of its provisions.

This Act was primarily intended to prevent unreasonable eviction of tenants and to regulate the letting of residential and non-residential buildings and to control the rents of such buildings. Though most of the provisions of the Act are obviously those intended to safeguard the rights of tenants, there are provisions which, so far as they go, are in favour of the landlord also.

Now, section 7(2)(i) is one of such provisions which gives the right to the landlord to pray for the eviction of the tenant on default of due payment of rent. Under that provision in a case where the rent is payable every month, even a default in payment of the rent for one month entitled the landlord to apply for eviction of the tenant. This provision certainly is made for the benefit of the landlord.

It is a well-established principle of law that everyone has a right to waive and to agree to waive the advantages of a law or rule made, solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy.” (Maxwell, 9th Edition P. 389). There is no express prohibition against contracting out of it.

Though we realise that the Act was passed in accordance with a general policy, we cannot say that policy would be violated if a contract is entered into between a landlord and tenant giving the tenant larger rights and greater privileges than those conferred on him by the Act. In the present case though under S. 7(2)(i) of the Act the landlord may be entitled to apply for eviction even when there was default of a month's rent, the lease deed expressly provides that it is only if the rent remains unpaid for two tenancy months alter the same became payable that the landlord is entitled to re-enter upon title demised premises.

In the absence of authority that it is not permissible for the parties to contract themselves out of the provisions of this Act we hold that they agreed to be governed by the terms and conditions which may be inconsistent with some of the provisions of the Act.”

85. This decision came up for consideration before the Madras High Court in — ‘George Oakes Ltd. v. Chief Judge Sm. C.C Madras, AIR 1951 Mad 222 (Z10). that case was decided by Rajamannar, C.J and Viswanatha Sastri, J. Rajamanmar, C.J observed thus about the decision in AIR 1950 Mad 284 (Z7):

“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 AIR 1950 Mad 284 (Z7) 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.

86. There was no doubt in our mind that he could not. I would be prepared to go the length to 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 the benefit conferred on him by the Act.”

87. Viswanatha Sastri, J., said:

“There are, no doubt, enactments conferring benefits on citizens, which benefits they can waive, without offending any rule of public policy as pointed out by my Lord in the judgment in AIR 1950 Mad 284 (Z7). I am unable to apply the doctrine of waiver by reference to a legal presumption that a landlord must be aware of the provisions of Act 15 of 1946.

I am equally unable to accept the contention that the mere insertion of terms and conditions in a lease executed after the Act, securing to the landlord rights of a more restricted character than those conferred upon him by the Act, operates in itself as waiver by the landlord of the statutory rights conferred upon him by sections 4 and 7 of the Act.

Logically speaking, the argument based on waiver could be advanced against a tenant who has taken a lease after the Act, containing terms and conditions which operate to curtail the rights and privileges conferred upon him by the Act. But sections 6 and 7 of the Act prevent a tenant from contracting out of the terms of those sections and depriving himself of the right to insist on a fair rent and the right to continue in possession even though the stipulated term has expired.

Further, section 16(1) of the Act makes the transgression of section 6 and the exaction of a rent in excess of the rent fixed as fair rent by the Controller an offence punishable with imprisonment. I, therefore, doubt whether the learned Judges who decided — ‘Raja Chetty v. Jagannathadas’, (Z7) would have held in such circumstances that the tenant had validly contracted himself out of the right to a fair rent and immunity from eviction conferred on him by the Act.”

88. The provisions of section 7(1) of the Madras Buildings Lease and Rent Control Act of 1946 are the same as those of clause 9(1) of the Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950.

89. The question again came up for consideration before the Madras High Court in — ‘Ramalingom v. Gurumurthi Reddi’, 1954-2 Mad LJ 752 (Z11), a case decided by Govinda Menon and Chandra Reddy, JJ. In that case also the tenant agreed after the coming into force of the Madras Buildings Lease and Rent Control Act, 25 of 1946, to surrender possession of the holding after the expiry of a period of one year.

90. The question that arose for decision was whether the tenant could contract himself out of the rights conferred on him by the Act. Chandra Reddy, J., referred to the earlier decisions of the Madras High Court, viz., AIR 1950 Mad 284 (Z7) and AIR 1951 Mad 222 (Z10), and observed:

“On a reading of the provisions of sections 6 and 7 of the Act and from the pronouncement in — ‘George Oakes Ltd. v. Chief Judge, Sm. C.C Madras’, (Z10), the conclusion we have reached is that a tenant cannot contract himself out of the rights conferred on him by the Act and that he could take advantage of the provisions of the Act notwithstanding that the lease was for a specified period”

91. In the light of the interpretation given to the decision in AIR 1950 Mad 284 (Z7). by Rajamannar, C.J, in AIR 1951 Mad 222 (Z10). and of the decision in 1954-2 Mad LJ 752 (Z11), the decision in AIR 1950 Mad 284 (Z7), cannot be regarded as an authority for the position that a tenant can contract himself out of the rights conferred on him under cl. 9(1) of the Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950.

92. As stated already, in AIR 1953 Trav-C 205 (A) it was not necessary to decide this question. The effect of the mandatory provision contained in cl. 9(1) of the Buildings (Lease and Rent Control) Order was not also considered in that case.

93. The principle relating to contracting out of a Statute is stated thus by Maxwell:

“Another maxim which sanctions the non-observance of a statutory provision is that, ‘cuilibet licet renuntiare juri pro se introducto’. Everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy.

Where in an Act there is no express prohibition against contracting out of it, it is necessary to consider whether the Act is one which is intended to deal with private rights only or whether it is an Act which is intended, as a matter of public policy, to have a more extensive operation.” (10th Edition — page 388).

94. At page 391 the learned author says:

“When public policy requires the observance of the provision, it cannot be waived by an individual. ‘Privatorum conventio juri publico non derogat’ Private compacts are not permitted either to render that sufficient between themselves which the law declares essentially insufficient, or to impair the integrity of a rule necessary for the common welfare.”

95. We do not think that the Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950, was intended to deal with private rights only. The circumstances under which it happened to be issued and the provisions thereof go to show that it was intended to have a ‘more extensive operation’. The Order was issued under the Travancore-Cochin Public Safety Measures Act.

96. Government thought that it was necessary in the interest of public safety and welfare to control the letting of buildings and their rent in certain areas of the State, particularly towns and industrial centres. Public interest demanded that owners of houses in towns and other thickly populated places should not be allowed to evict tenants as they liked or demand unreasonable rent. It will be a matter of grave public concern if a large number of people living in those areas are evicted from their dwellings and are rendered homeless or if it becomes impossible for people to get dwelling houses in those areas on reasonable rent. Such a situation is likely to affect public peace, and welfare of the State as a whole.

97. An enactment intended to avert such a situation cannot be said to be a private piece of legislation meant merely to confer certain benefits on a limited class of people. It will be an enactment based on public policy for achieving a public purpose. The object of such an enactment cannot be achieved if parties are allowed to contract out of it. The provisions of the Buildings (Lease and Rent Control) Order make it clear that it was the intention of the lawmaking authority that landlords and tenants should not be allowed to defeat the object of the enactment by agreeing to contract out of it. Clause 6 of the Order provides:

‘When the Controller has determined the fair rent of 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 exceeding 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 clause 5 sub-clause (1) or sub-clause (a) of this clause 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;

(c) Any sum paid in excess of the fair rent, whether before or after the commencement of the Travancore Buildings Rent Control Order, 1122, or the Cochin Buildings Lease and Rent Control Act. XXIV of 1124, in respect of the use of the building after the commencement of the aforesaid Act or Order as the case may be, shall be refunded to the person by whom it was paid or at the option of such person, otherwise adjusted.”

98. Clause 27 of the Order further provides that if any person contravenes the provisions contained in sub-clause (a) of cl. 6 he shall be liable to be punished with imprisonment for a term which may extend to three months or with fine which may extend to Rs. 2000/- or with both. It is clear that the provision contained in cl. 6 amounts to a prohibition against contracting out of the Statute. Clause 9(1) also is a similar provision. Referring to similar provisions in the English Coal Mines Regulation Act, 1872, Lord Halsbury observed in — ‘Netherseal Colliery Co. v. Bourne, 1839-14 AC 228 (Z12):

“The Statute discloses the view that the mine-owner and the persons employed in the mine were not in the contemplation of the Legislature, fit to be trusted to make their own bargains.”

99. His Lordship further observed that a protective stipulation in the Act in favour of the miners could not be waived by them and that the principle “quilibet potest renuntiare juri pro se introducto” was inapplicable to such a case.

100. Reference may also be made in this connection to the observation of Farwell, T-, in 1940-2 All ER 601 (Z6). Referring to the Courts (Emergency Powers) Act, 1939. His Lordship observed:

“In order to introduce into an Act a provision against contracting out when there is no express provision for it, no doubt, it is often necessary to consider whether the Act is one which is intended to deal with private rights only, or whether it was an Act which is intended, from the point of view of public policy, to have a more extensive operation.

The last Act was held by the Judges concerned to have an imposition upon private rights of the mortgagee as against the mortgagor, and it was held that in those circumstances there was nothing to prevent a mortgagor and a mortgagee from agreeing to contract out of the Act. I think that, in considering this question, I must take into consideration the fact that, in the years which have elapsed since the last war and the beginning of the present war, the position with regard to mortgagors and mortgagees has very largely changed.

During that period, there has grown up an enormous amount of business with Building Societies and with like societies for financing of persons in comparatively humble circumstances who desire to acquire a home through the assistance of Building Societies. The growth of that sort of business has been phenomenal, and there is no doubt whatever that there is a very large number of comparatively humble people for whom the legislature intended to create some protection.

It was felt — I think, again, that this is a matter which I am entitled to take into consideration — that men and women who found themselves unable to make the necessary payments at the due time, and thereby ran a risk of being turned out of their homes, should have some protection, if they were people who found that their difficulties were due to the war, either directly or indirectly, and that protection was a protection to be afforded to them by imposing upon the mortgagee the necessity of obtaining the consent of the court before he exercises any power.

In the absence of any such legislation, one can well imagine that there might be very far-reaching distress and grievance among a very large number of people, who might feel that they had been dispossessed of their homes without any opportunity for putting their side of the matter, and without being given very much notice of what was being done. It must be remembered that large number of persons in that position are persons who have little or no knowledge of law, and, moreover, have little or no opportunity of obtaining legal advice.

There is a very large of class of persons now, although it was not anything approaching the same size in the last war, calling for some sort of protection. If it be right to say that, by merely obtaining the consent of the mortgagor, a mortgagee can avoid the necessity of applying to the court for leave, a large part of the protection which this Act was intended to provide, it seems to me, would virtually disappear.

People in the position of such persons as I have mentioned might easily be persuaded to give a consent without really knowing exactly what was involved in such a consent, and an opportunity of expressing their reasons for inability to pay, whatever they may be, and of stating the difficulties in which they were, which is now afforded to them by this application to the court, would be entirely removed, merely by the obtaining of a consent. This might lead to all sorts of questions as to whether the consent had in fact been obtained, whether it was consent which could be binding, and all sorts of similar questions”.

101. His Lordship was of opinion that in that particular case the parties had every opportunity for obtaining legal advice, but His Lordship held that the Act could not be construed merely with relation to the position occupied by the parties to that case. His Lordship further observed:

“As I have said, this question seems to be a very much wider one than that, and I cannot help feeling, and feeling very strongly, that underlying this Act of Parliament is a clear intention of the legislature to afford some measure of protection, to the very large number of persons whom I have mentioned, people who really require to be protected, as it were, against themselves.

I am justified, in my view, in taking those-matters into consideration, and on those grounds coming to the conclusion that, whatever the effect of the earlier Acts, the Act in this particular case is an Act which was intended to have effects more far-reaching than merely an alteration in the rights of individual persons”.

102. His Lordship then quoted a passage from the, judgment of Sir Earnest Pollock, M.R, in — ‘Salford Guardians v. Dewhurst’, 1926 AC 619 (Z13) in which that eminent Judge discussed the nature of an Act which provided for payment of pensions to poor law officers, and held that a poor-law officer could not enter into a contract with, the guardians in question by which the obligation of the latter to pay him a pension could be avoided. His Lordship concluded as follows:

“In my judgment, for the reasons which I have endeavoured to express, this Act is an Act passed not merely for the purpose of dealing with the individual rights of private persons. It has a more far-reaching scope than that, and it was intended, as a matter of public policy, to deprive the mortgagee of the powers which he otherwise could have exercised, and to impose upon him, as a condition of the exercise of those powers, that he should first obtain the leave of the Court”.

103. We think that the above observations apply with force to the Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950.

104. Learned counsel for the respondents relied on the decision of the Privy Council in — ‘Great Eastern Railway Co. v. Goldsmid’, — 1884 9 AC 927 (Z14). Referring to a particular Act of Parliament conferring certain benefits on the City of London, Earl of Selborne, L.C, said that the rights conferred under the enactment were only private rights. His Lordship observed:

“It is a ‘jus introductum’ for the particular benefit of the City of London, and it falls within the general principles of law, ‘Unusquisque potest renunciars juri pro se introducto’, a principle not only of ancient but also of modern application, applicable even where Acts of Parliament have been passed of a much more public-character.

In such cases, when the rights given have-been only private rights, unless there has been, also in the Act of Parliament a clause excluding a power of contract, it has been held that by contract or by voluntary renunciation such rights, as far as they are personal rights, may be parted with and renounced”.

105. For the reasons already given, we do not think that this observation will apply to the Travancore-Cochin Buildings (Lease and Rent Control) Order.

106. Learned counsel referred also to the decisions in — ‘Sahabuddin v. Mohanlal’, AIR 1951 All 227 (Z15), Satish Chandra v. Bimalendu Sen, AIR 1951 Assam 27 (Z16), ‘Radheylal v. Mst. Lareti’, AIR 1954 All 150 (Z17), and ‘Shri Lallan Parsad…Defendant- v. Shri Sharda Parsad…Plaintiff-.’, AIR 1953 All 316 (Z18). In AIR 1951 All 227 (Z15) it was held that the U.P (Temporary) Control of Rent and Eviction Act 3 of 1947 was passed for the benefit of tenants on account of house shortage and to prevent their eviction, that it was open to a tenant to forego the protection given under the Act and to agree to vacate-the premises on a fixed date and that the provisions of the Act would not invalidate a decree-passed on such consent. There was no discussion in the case on the question of waiver and, therefore, the decision is of little assistance to us.

107. In AIR 1951 Assam 27 (Z16) also it was held that there was nothing in the Houses and Rents Assam Urban Areas Rent Control Act, XIII of 1949, to prevent the tenant from contracting himself out of the benefits conferred by the Act and that a decree passed on such consent was binding on him. In that case also there was no discussion of the principle relating to waiver of benefits conferred by a Statute.

108. The learned Judge also held that a consent decree was not a decree coming within the purview of section 6 of the Assam Act relating to eviction of tenants and that, therefore, the operation of the decree could not be controlled by that section. We have already seen that the term ‘decree’ in clause 9(1) of the Travancore-Cochin Buildings (Lease and Rent Control) Order includes a consent decree also.

109. In AIR 1954 All 150 (Z17) the first two cases, i.e, AIR 1951 All 227 (Z15) and AIR 1951 Assam 27 (Z16) were followed. In that case also there, was no discussion of the principle relating to waiver of rights conferred by a statute. The fourth case cited by learned counsel for the respondents, viz., AIR 1953 All 316 (Z18) has no application to the facts of the present case.

110. That case related to the interpretation of section 5(2) of the U.P (Temporary) Control of Rent and Eviction Act, 3 of 1947. It was held that section did not stand in the way of parties entering into an agreement between themselves for enhancing the rent and that no restriction on that right was imposed by the Statute.

111. Learned counsel for the respondents also relied on the decision of the Travancore High Court in — 1943 Trav LR 409 (Z8) and on the decision of this court in A.S No. 876 of 1120 D/- 19-12-1949 (TC)(Z9) which are cases referred to in AIR 1953 Trav-C 205 (A). Those two cases relate to the Travancore Debt Relief Act & it was held in those cases that it was open to a debtor to renounce the benefit conferred by the Act and that such renunciation was not opposed to public policy or public morality. In the first case, Krishna Pillai, J. (as he then was) observed:

“Where the statutory provision is not based on public policy and is intended only for a particular person or class of persons, the conditions prescribed by the statute are not considered as indispensable and may be waived, because everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity and which may be dispensed with without infringement of any public right or policy”.

112. The same principle was followed in the second case also. We do not think that the principles applicable to Debt Relief Act will apply to the Buildings (Lease and Rent Control) Order which, as we have already seen, is not a law ‘made solely for the benefit and protection of the individual in his private capacity’.

113. For the above reasons, we hold that cl. 9(1) of the Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950, prohibits the court from evicting the defendants by executing the compromise decree passed in the case and that the defendants are not estopped from claiming the benefit under the clause. In the result, we set aside the judgment in Seconds Appeal No. 953 of 1952 of this Court and restore that of the District Court. The appeal is allowed with costs in all the courts.

114. Appeal allowed.