Case: Lachoo Mal Vs. Radhey Shyam

2. The facts are not in dispute. The appellant had been occupying a shop in Mathura belonging to the respondent from a very long time at a monthly rental of Rs. 18.37. In 1962 the respondent wanted to construct rooms on the upper storey of the shop for his own residence. This construction could possibly be made only if the appellant vacated the shop for some period. On June 4, 1962, the appellant and the respondent entered into an agreement After reciting the above facts it was agreed that the shop would be vacated by the appellant on the condition that as soon as the required construction had been completed he would resume possession of the shop. At this stage the following clauses of the agreement may be set out1. On this day the second party has withdrawn his possession from the shop bearing no. 1/2C, situate at Tilakdwar, and has given the same to the first party.      2. The first party shall get the shop constructed within thirty days and would then hand over the possession of the same to the second party.      3. At present a sum of Rs. 18.60 per mensum, which includes house tax and water tax, is being paid by the second party to the first party as rent. After the construction of the shop, the first party shall be entitled to get the same amount as rent from the second party. All the sections of the U. P. Rent Control and Eviction Act shall be fully applicable to this house. The first party shall in no case be entitled to derive benefits from it as the property built after 1-1-513. After the construction had been made and the appellant had resumed his possession of the shop the appellant offered rent to the respondent but the latter did not accept the same. Ultimately he deposited the rent from April 1, 1962 to July 31, 1963 in court under S. 7-C of the ActThe respondent served a notice dated April 20, 1963 apparently under the provisions of the Transfer of Property Act purporting to terminate the tenancy of the appellant. This was followed by a suit which the respondent filed for ejectment of the appellant and for arrears of rent, damages etc.      The Munsif dismissed the suit holding that the appellant was entitled to the protection conferred by S. 3 of the Act which was applicable. The District Judge, on appeal, took the contrary view and decreed the suit The High Court affirmed the judgment of the District Judge. It was held, inter alia, that the respondent was entitled to rely on S. 1-A of the Act and the appellant could not be given the benefit of S. 3.

Court's reasoning:
6. The general principle is that every one 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. Thus the maxim which sanctions the nonobservance of the statutory provision is cuilibet licet renuntiare juri pro se introducto. (See Maxwell on Interpretation of Statutes, Eleventh Edition, pages 375 and 376.) If there is any express prohibition against contracting out of a statute in it then no question can arise of any one entering into a contract which is so prohibited but where, there is no such prohibition it will have to be seen whether an Act is intended to have a more extensive operation as a matter of public policyIt has never been the case of the respondent that the consideration or object of the agreement which was entered into in June 1963 was forbidden by law. Reliance has been placed mainly on the next part of the section, namely, that it is of such a nature that it would defeat the provision of any law and in the present case it would be S. 1-A of the Act7. Now S. 1-A does not employ language containing a prohibition against or impose any restriction on a landlord and a tenant entering into an agreement that they would not be governed by that section. We concur with the view expressed in Neminath Appayya v. Jamboorao Satappa, AIR 1966 Mys 154 that the words if permitted it would defeat the provisions of any law in S- 23 of the Contract Act refer to, performance of an agreement which necessarily entails the transgression of the provisions of any law. What makes an agreement, which is otherwise legal, void is that its performance is impossible except by disobedience of law. Clearly no question of illegality can arise unless the performance of the unlawful act was necessarily the effect of an agreement8. We are unable to hold that the performance of the agreement which was entered into between the parties in the present case would invalve an illegal or unlawful act. In our judgment S. 1-A was meant for the benefit of owners of building which were under erection or were constructed after January 1, 1951. If a particular owner did not wish to avail at the benefit of that section there was no bar created by it in the way of is waiving or giving up or abandoning the advantage or the benefit contemplated by the section. No question of policy, much less public policy, was involved and such a benefit or advantage could always be waived. That is what was done in the present case and we are unable to agree with the High Court that the consideration or object of the agreement entered into between the parties in June 1962 was unlawful in view of S. 23 of the Contract Act.