1. This second appeal arises out of a suit for the recovery of arrears of rent from a thekadar of agricultural land for the years 1338 and 1339F. The thekadar agreed to pay at the rate of Rs. 1,400 per annum and allowing for payments which had been made, the claim was for a sum of Rs. 701-7-8. The defence raised was that under a contract between the parties the thekadar was liable to pay at the rate of Rs. 400 a year and not at the rate of Rs. 1,400 a year in any year in which there had been remission of land revenue. In the original theka of 1st June 1926 there was a provision that the rate of rent should be Rs. 1,400, but that that should be reduced to Rs. 400 if there were remissions or suspensions. It may be that this document was a little bit Vague, but in a later document of 31st March 1930 it was quite definitely agreed between the parties that the rate should be Rs. 1,400 a year unless the revenue was totally remitted, in which case it was to be Rs. 400 a year. The lower appellate Court found on a construction of the contract that the appellant was liable to pay at the rate of Rs. 1,400 a year. The trial Court had come to the same conclusion and had decreed the claim. The appeal was dismissed by the lower appellate Court.
2. It appears that the decision of the lower appellate Court that the thekadar was not entitled to remission under the terms of the contract was not sufficient to dispose of the controversy between the parties. Although the point does not seem to have been raised in either of the grounds of appeal I have not the slightest doubt that the parties were not entitled to contract themselves out of the statute and to say in effect that the provisions of Section 73, Agra Tenancy Act, would not apply to them, It would be quite contrary to public policy to allow the provisions of Section 73 to be ignored by the plaintiff in this case. I hold that the parties, were not entitled to contract themselves out of the statute and that therefore the plaintiff's claim must be examined with reference to the provisions of Section 73, Agra Tenancy Act. In effect it may be said that the Court below has disposed of this matter on a preliminary point.
3. I therefore remand the case for disposal. The Court below will enquire whether there was any order for remission of rent as contemplated by Section 73 which would apply to the defendant, and if there was, will take that order into consideration in deciding what amount of rent is due from the defendant to the plaintiff. The parties should be allowed to produce evidence. The costs in this appeal will follow the result Permission to appeal under the Letters. Patent is refused.