1. This appeal arises out of a suit for arrears of rent, the rent being payable by the lessee or 'thekadar' under a written lease bearing date 28th June 1918.
2. It appears that the Local Government, by notification in the Local Official Gazette, remitted land revenue for a portion of the year (kharif) 1326F. The defendant-lessee claimed in the suit that ho should receive an abatement in the rent under Section 51 of the Tenancy Act of 1901. The lower Court held that he should and decreed the claim after allowing reduction on account of the contention of the defendant.
3. In appeal it has been contended by the plaintiff that there is a clear stipulation in the lease that the rent would be payable irrespective of whether there is any drought or flood or any calamity by which there is no produce in the village. We have to construe Section 51 of the Tenancy Act and to see whether the provisions of the said Section override the contract or whether the contract should prevail. In Section 51 the word used is 'tenant'. Under Section 4 of the Tenancy Act the word 'tenant', unless there is something repugnant in the subject or context, includes a thekadar or lessee. We see nothing in Section 51 repugnant to the sense that the word 'tenant' should include a lessee. If we look to the principle on which Section 51 is based we find that it is owing to there being a want of produce in the village that the Government remits the revenue. If in spite of the Government remitting the revenue, the landlord be allowed to collect the rent, the cultivators would receive no benefit and there would be no meaning in the Government giving up the revenue. Similarly, if in the present case the Zemindar, the plaintiff, be allowed to recover his full amount of rent from the defendant, the result would be that the defendant must try by unfair means to get the rents out of the tenants, the actual cultivators of the soil. We think that there is nothing in Section 51 which enables us to take out the case of a lessee, who has agreed to pay rent under all circumstances, from the provisions of Section 51 of the Tenancy Act. As for the Statute overriding a contract, it is sufficient to say that in the majority of cases, the rent is fixed as the result of a contract, and yet the law says that the rent would not be paid or would be suspended. Two cases were cited in the Court below and they have been cited here also. They are to be found in Bachan Lal v. Pooran Kunwar. Ind. Cas. 529 In this case the thekadar was compelled to pay the rent in spite of remission of the land revenue on the ground that he was holding under a special contract from the Zemindar and he may have made substantial profit in fat years. Section 4 of the Tenancy Act was not referred to in that case. This was a decision by a single Judge. The second case is a later one and was decided in 1909. It is reported in Shiam Lal v. Makham Lal 2 Ind. Cas. 629. In this case too the thekadar was compelled to pay the rent, but the ground given was entirely different. It was this. Although under Section 51 of the Tenancy Act the Local Government remitted or suspended the payment of land revenue there was nothing before the learned Judges to show that there was any order passed to apply to the case of a 'thekadar'. The learned Judges say that they allowed the defendant an opportunity to produce an order that may have bean passed by the Collector, but no order was produced before their Lordships. Section 4 of the Tenancy Act was not referred to in this case also. Without expressing any opinion on the correctness or otherwise of this case, we note that, we have in the present case, an express order of the Collector directing that, the rent payable by the defendant-lessee should be remitted to the extent mentioned therein. This document which is called a 'certificate by the Collector' is printed at p. 26 of the record. We should think that the contract between the parties is entirely over-ridden by the express provision of law contained in Section 51 of the Tenancy Act. The judgment of the Court below seems to have been correct except in respect of costs, as to which we will pass orders later on. The appeal is otherwise dismissed with proportionate costs to the parties, which will include in this Court Counsels' fees on the higher scale.
4. There is a cross-objection on behalf of the defendant-respondent. Two points were taken, but only the second one is pressed. It appears that the Court below ordered that the parties should pay their own costs. This portion of the decree has been taken exception to. We see no justification for allowing no costs to the parties. We allow the cross-objection and the appeal in part and order that the parties pay and receive costs in both the Courts in proportion to their respective failure and success. The respondent will receive costs of the cross-objection in proportion to his success. The costs in this Court will include Counsels' fees on the higher scale.