JUDGMENT : The petitioner’s father applied under S. 16 of the Malabar Tenancy Act, 1929, as amended by Act XXXIII of 1951 and Act VII of 1954, hereinafter referred to as the Act, for fixing the fair rent of a coconut garden, which he was holding under a lease from the respondent and her predecessors. The first lease deed, which was of the year 1934, stipulated an annual rent of 5500 cocoanuts; later, after the amendment Act VII of 1954 came into force, a lease deed Ext. B2 for a period of one year was executed by the petitioner’s father to the respondent on March 10, 1955, which stipulated the annual rent at 4300 coconuts. The application under S. 16 of the Act was made in June 1955. 2. Sub-sections (1) and (2) of S. 9 of the Act prescribe the mode in which fair rent has to be determined in the case of a garden land, like that in the present case, and are alone relevant, and may be quoted: Section 9 (i): “In the case of garden lands, fair rent, subject to sub-sections [5], [6] & [7] shall be a share, ascertained under sub-sections [2], [3] and [4] of this section, of one-third of the gross produce for the three years immediately previous to the date on which fair rent is to be ascertained.” (2) “As regards coconut trees in respect of which the landlord is bound to pay compensation under the Improvements Act in case of eviction, the share shall be one-eighth of the said one-third, of only the nuts included in such produce and, as regards the trees in respect of which he is not bound to pay such compensation, the share shall be one-third of the said one-third.” The fair rent of a garden has therefore to be fixed with reference to the gross produce. The Rent Court, which had deputed the Special Revenue Inspector to report on gross produce, discarded his report as erroneous; it rejected the evidence adduced by the parties as unreliable, and relied ultimately on some data which may be open to objection, for ascertaining the gross produce and fixed the fair rent at 2920 cocoanuts per annum. Against this, both parties preferred appeals to the Subordinate Judge at Ottapalam. Against this, both parties preferred appeals to the Subordinate Judge at Ottapalam. The manner in which the appeals were disposed of by her was in controversy and her order has therefore to be carefully understood. 3. It may be mentioned, Ext. B2 recites that the fair rent was fixed under it at 4300 cocoanuts per annum, in accordance with the provisions of the Act. Before the learned Subordinate Judge, the contention was advanced on behalf of the respondent, that fair rent thus having been determined, no application under S. 16 was maintainable-a contention which is unsustainable on the terms of S. 16 and was conceded to be so, by the learned counsel, who appeared before me for the respondent. It may be, that the Subordinate Judge did not go the whole length with the respondent in giving effect to the contention, but relying on P.R. Subba Iyer v. W. R. Chetty, 1958 K.L.T., Short Notes 38, a case decided under the Madras Buildings Lease and Rent Control Act XXV of 1949, which was also conceded on behalf of the respondent to be distinguishable, she deduced a principle, as applicable to the case in hand, which, to state in her own words is, that “it is only in cases where an agreement of compromise has not been arrived at freely and there has been an over-reaching of one party by the other, that the Rent Controller can interfere. There is no reason why the above principle should not be made applicable in the case of fair rent of properties under the Malabar Tenancy, Act also”. Then the learned Judge proceeded to observe, that “even if there is nothing in the Act which precludes a tenant from filing a petition before the Rent Court”, he has not established ‘that the landlord has in any way over-reached him” in fixing fair rent and therefore concluded, that “the Rent Court ought to have accepted the rent as per that agreement as the fair rent of the properties”. This is not to say, as was the argument of the respondent’s learned counsel, that the agreement of parties as to fair rent, was but treated as an item of evidence; for that matter, there was other evidence in the case which, though rejected by the Rent Court, had still to be considered by the learned Judge in view of the appeal taken by the tenant and was not adverted to. On the contrary, the learned Judge took the view that the agreement as to the fair rent voluntarily entered into by the tenant is conclusive, but in doing so, it was overlooked, that the object of the Act is to enable the tenant and in certain cases the landlord, to re-open agreements which had been entered into for fixing fair rent, although undoubtedly an agreement between them as to the amount of the gross produce, or as to the fair rent, purported to be arrived at in accordance with the Act, as in Ext. B2, will have its due evidentiary value in a proceeding like the present. 4. S. 16, read with S. 9 (1) and (2) of the Act, has cast upon the Rent Court the duty of fixing fair rent with reference to the gross produce. The complaint of the petitioner, that the learned Judge felt bound by Ext. B2, and therefore did not enquire into the question of gross produce, is therefore justified, and receives support from her omission even to advert to the other evidence in the case, in the appeal by the tenant. This is a case, where the learned Judge has declined to exercise jurisdiction vested in her by law, and is therefore distinguishable from Seku Rowther v. Rugmani Amma, 1960 KLT 50 , Sehhara Menon v Executive First Class Magistrate, 1958 KLJ 1195 and from Nagendra Nath v Commissioner of Hills Division, AIR 1958 SC 398 , where Art. 227 was invoked, but not to remedy any jurisdictional defect. On the contrary, I consider that Satyanarayana v. Mallikarjun, AIR 1960 SC 137 is authority for holding that the power under Art. 227 can be exercised by this Court in a case of failure on the part of the Tribunal to exercise its jurisdiction. 5. The order of the learned Subordinate Judge is therefore quashed. Nothing in this judgment is to be understood as countenancing the view, that the recital in Ext. 5. The order of the learned Subordinate Judge is therefore quashed. Nothing in this judgment is to be understood as countenancing the view, that the recital in Ext. B2 cannot be treated as an item of evidence; it can be, and has to be weighed with other evidence, if any, in the case, make no order as to costs. Allowed.