Ewart Greaves, J.
1. This appeal turns on a provision for renewal contained in a lease. The lease provides for a demise for a period of nine years at a rent which is more than the rent which the landlord the raiyat, is entitled to exact from the under-raiyat under the Bengal Tenancy Act. The lease ends with this stipulation that the landlord will execute a fresh kabuliyat on the expiry of the period and the question that now arises is whether the tenant is entitled to a renewal by virtue of that provision. The two lower Courts decided that he was entitled to a renewal and Mr. Justice Newbould has agreed with their conclusion and this Letters Patent Appeal is against the decision of Mr. Justice Newbould. Now what is stated is this that it was a term of the renewal that the tenant should observe all the provisions of the lease and that inasmuch as he has declined to pay rent at the higher rate reserved in the lease and thus has broken one of the covenants he is not entitled to a renewal at the expiration of the period. The Bengal Tenancy Act does not make a provision for a higher rate of rent than what the Act allows illegal but it provides that the higher rent cannot be enforced against a tenant. It seems to me that the tenant has observed all the provisions of the lease that he is by law bound to observe and the mere fact that he has declined to pay rent at a rate which he is not bound to pay by virtue of the provisions of the Tenancy Act does not, in my opinion, disentitle him from obtaining the renewal which he now claims. The Tenancy Act was enacted amongst other things for the protection of the tenant and I think that it would be a dangerous principle if the landlord by indirect means of this nature were in a position to exact or try to exact a higher rate of rent from the tenant than the law allows and I can well imagine that it would be a great inducement to a tenant to pay a higher rate of rent than he is bound to pay under the law if he is sure that by so doing at the end of his term he will secure a renewal of his tenancy for another period and that he cannot otherwise obtain a renewal.
2. I think that for the reasons I have indicated the decision of Mr. Justice Newbould is correct and that this Letters Patent Appeal should be dismissed. My learned brother takes a different view but under the circumstances in accordance with the practice of this Court the appeal is dismissed and with costs.
3. This is an appeal against the decree of my learned brother Mr. Justice Newbould dismissing an appeal against the decision of the Additional District Judge of Noakhali which affirmed the decision of the First Munsif of Lakhipur. The facts are these: The plaintiff is a raiyat and the defendant is an under-raiyat. They entered into an agreement whereby the plaintiff covenanted to let his land to the defendant for nine years. The defendant agreed to pay the landlord rent at higher rate than was recoverable under Section 48 of the Bengal Tenancy Act and the tenant agreed that if he did not pay rent at that rate he was liable to be ejected without notice.
4. There was a further agreement for a renewal of the lease on the expiry of the said period of nine years. No terms were given for the renewal of the lease. The tenant did not pay rent as agreed at the higher rate. The nine years have now expired and the landlord refuses to renew the lease on the ground that the tenant has broken the terms of the agreement by refusing to pay rent at the rate at which he stipulated and, therefore, he is not entitled to a renewal of the lease. Mr. Justice Newbould held that as the condition to pay rent at a higher rate than was recoverable under the provision of the Bengal Tenancy Act was illegal the failure to observe it cannot be regarded as a breach of the condition of the covenant and that as they had not given an opportunity of renewal which they were bound to do under the lease they cannot eject him. I regret that I am obliged to differ from the decision. There was nothing illegal in the stipulation to pay rent at a rats higher than that recoverable under the Act. Such a stipulation does not fall within the provision of Section 178, Bengal Tenancy Act. Neither is the contract void [see Sitanath Midda v. Basudeb Midda 2 C.L.J. 540.] The mere fact that it is not enforceable in law does not prevent it from being a condition of a contract the failure to comply with which would justify the other party in not carrying out his share of the contract. The covenant to pay the rent at a higher rate than is recoverable under the Act may not be enforceable but it may still be a condition precedent to renewal.
5. The language in Section 48 is very different from the language in Section 29(b) or Section 85, Bengal Tenancy Act.
6. It seems to me that the tenant having failed to fulfil his part of the contract, viz., to pay the enhanced rent the landlord is absolved from his part of the contract, viz., to grant a renewal of the lease. No notice it seems to me is necessary. The lease has expired. The defendants are trespassers and by his filing the suit the landlords clearly show the intention of not renewing the lease. I need not consider whether the Tenancy Act is an Act for the protection of the tenant or whether it is an Act to define the respective lights of landlords and tenants. It seems to me that a person who has entered into a contract should be held to it unless it can be shown that it is contrary to some provision of the law or has been obtained by fraud or undue influence.
7. I would allow the appeal and decree the plaintiff-appellant's suit.