1. This is an appeal by the defendant against the decision of the learned Subordinate Judge of Chittagong, dated the 27th March 1916, reversing the decision of the Munsif at Patiya. The suit was brought for ejectment on the ground that the defendant refused to render the services that he was bound to render under the terms of a lease. The case that the defendant set up was that he was not bound to render any services, and the only question is whether on the terms of the lease the defendant is liable to be ejected on refusal to perform the services he agreed to render to the landlord. In the lease, the rent is stated to be Rs. 2 and the supply on requisition of four persons to do gratuitous labour. The lease then recites, 'You will regularly render these services which your predecessors have rendered in the house of my predecessors and will duly perform those which you are required to do in my house at the time of marriages'. This lease is dated prior to the date of the Bengal Tenancy Act. That such a lease is good there seems to be no doubt where the tenant was given the lease in consideration of his performing certain particular services. There is no reason in this case why, if the tenant does not wish to perform the services, he should not give up possession of the land.
2. Then it is said that the tenant can get rid of the requisition by paying Rs. 2 in lieu of it.
3. It is quite true that the lease gives the landlord an option either to recover Rs. 2 as rent if the tenant fails to perform his services or to eject the defendant. The landlord is not bound to accept Rs. 2 under the terms of the lease. He can eject the tenant in the event of the tenant refusing to perform the services. Nothing has been shown to us why a lease in consideration of the performance of such services is not a perfectly good lease.
4. Then it is said that the contractual rate of interest was penal, namely, the interest which was stipulated for if the defendant made 'default in the payment of Rs. 2, the money'rent that was reserved by the lease. There is nothing to show that the rate was penal, The contract was made before the Bengal Tenancy Act and the parties were at liberty to make any stipulation they thought fiK Because the interest ia high, it does not follow that it is penal. Many contracts contain a stipulation for interest at a rate going to a considerable amount. Because certain learned Judges in one case came to the conclusion that the rate of interest in that particular case was penal, it is no ground for saying that all the rates of interest in other contrasts, where the rates contracted for are as high as the one which the learned Judges held to be penal, are also penal. It is not a pure question of law whether the rate mentioned in the contract is or is not penal. It involves a consideration of the facts. No facts were considered in this respect in either of the Courts below and it is much too late now to raise the question aa to the rate of interest, which the parties deliberately contracted in 1883, being penal.
5. The present appeal fails and is dismissed with costs?