LACHOO MAL versus RADHEY SHYAM

Citation: [1971] 3 S.C.R. 693 · Decided: 10-02-1971 · Supreme Court of India · Bench: K.S. HEGDE

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

B 
c 
E 
F 
G 
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LACHOO MAL 
v. 
RADHEY SHYAM 
February 10, 1971 
[K. S. HEGDE AND A. N. GROVER, JJ.} 
U.P. Temporary Control of Rent and Eviction Act, 1947, ss. l(A) 
•nd 3-Cons1ructio11 after 1951-Agreement that Act tho11/d •pp/y-
lf binding upon landlord-hidian Contract Act 
(9 of 1872), a. 23-
Scope of. 
The appellant was the tenant of the respondent's shop. 
As 
the 
latter wanted to make sotlle constructions they entered into an agree· 
~nt in 1962, according to which, the appellant was to vacate the shop 
but re-occupy it on the same rent as soon as the construction was Cl)m-
pleted. It was also agreed that all the sections of the U.P. (Temporary) 
Control of Rent and Eviction Act, 1947, shall be fully applicable to the 
new tenancy. After the construction was completed the appellant resum· 
ed possession and offered rent. 
The respondent refused the rent and 
filed a suit for ejectment. In appe'al, the High Court held that the ap· 
pellant was not entitled to the protection of the Act, because, the res-
pondent was entitled to rely on s. !A according to which nothing in the 
Act shall apply to a building constructed on or after !st January, 1951, 
and that the agreement was unlawful within the meaning of s. 23 of the 
lndian Contract Act, 1872. 
In appeal to this Court, 
HELD : The general principle is that every one has a right to waive 
the advantage of a law made for his benefit in his private capacity, 
when a public right or public policy is not infringed thereby. Section lA 
was meant for the benefit of owners of buildings constructed after tan· 
uary 1, 1951. But there is no prohibition in bhe section against a land· 
lord and his tenant entering into an agreement,. that they would not !>e 
gove;;iecl by that section. If a particular owner did not want to avail 
himself of the benefit of the section, there was no bar created by it to 
his waiving or giving ·up or abandoning the advantage and no question 
of pnlicy, or public policy is involved. 
Therefore, the performance of 
the agreement fa the present caae would not entail the transgression of, 
any law and the agreement was not void under s. 23 of the 
Indian 
Contract Act. [696 C; 6<)7 D·E; 698 A-CJ 
Nemlnath Appayya Hanumannavar v. Jamboorao Sateppa 
Kocherl, 
A.I.R. (1966) Mys, 154, approved. 
Vita Food Products Incorporated v. Unus Co. Ltd. (in Liquldatio11), 
(1939) A.C. 277 at 293, referred to. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 18 of 
1968. 
Ap~ by special leav~ from the judgment and, order dated 
April 14, 1967 of the Allahabad High Coun in Second Appeal 
No. 307 of 1965. 
694 
SUPREME COURT REPORTS 
' 
[1971]3 S.C.R. 
V. M. Tarkunde; Umlila Kapoor and R. K. Khanna, for the' 
A 
appellant. 
' 
S. V. Gupte and M. Iii· Goswami, for the respondent. 
The Judgment of the ~ourt was delivered by 
Grover, J. This is an appeal by specilj]. 
leave from 
a 
judgment of the Allahabad High Court and involves the question 
whether the appellant, who was the tenant, was entitled to the 
benefit of s. 3 of U.P. (Temporary) Control of Rent and Eviction 
Act, 194 7, hereinafter called the "Act". 
The facts are not in dispute. 
The appellant had been occupy-
ing a shop in Mathura oelonging to the respondent from a very 
lbng time at a monthly rental of Rs. 18.37. In 1962 the respon-
dent wanted to construct rooms on the upper storey of the shop for 
his own residence. 
Thisl 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 agree-
ment.. · After reciting the. ab6ve facts it was agreed that the shop 
would be vacated by thel ~ppellant 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 out. 
"1. On this day the second party has withdrawn 
his possession from 
1 the shop bearing No. 1/2C, situate 
at Tilakdwar, and !fas given the same to the first party. 
2. The first patty shall get the shop constructed 
within thirty days and would then hand over the pos-
session of the sanie to the second party. 
! 
3. At present a. sum of Rs. 
18-6-0 per mensem, 
which includes house tax and water tax, ·is being paid 
by ·the second party to the first party as rent. 
After 
the c0nstruction of' the shop, the first part}' shall be 
entitled to ·get the. s~ine amount as rent from the second 
party. 
All the s~ti6ns of th

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