Judgement JUDGMENT :- Sri Mahalingaswami Devastanam, Thiruvadamurudur, leased out a large block of lands belonging to it of an extent of about 185 acres 1 cent of wet lands and 28 acres 27 cents of punja lands to A.T. Sambanda Mudaliar for a period of five faslis, 1358 to 1362 (1-7-1948 to 30-6-1953). The lessee, Sambanda Mudaliar, executed a registered lease deed in favour of the devastanam on 20-2-1948. He agreed to pay paddy rent consisting of 350 kalams in Kuruvai harvest and 2650 kalams in samba harvest, cash rent or Rs.50 and to deliver 555 bundles of straw every fasli year. He paid an advance of Rs.4000 which under the terms of the lease was to be adjusted out of the rent due for fasli 1362, the last year of the lease. The undertaking of the lessee to pay the annual rent stipulated in the lease deed was absolute and unconditional. The relevant clause in the lease deed is as follows: "Individual No.2 shall pay 3000 (three thousand) kalams of paddy and Rs.50 in cash for each fasli from falsi 1358 to fasli 1362, i.e., for five faslis, whether there is proper yield or not and without pleading any excuse on the ground of act of State or God, blighting of crops or the land having fallen waste or the crop having damaged after transplantation." The lessee got possession of the demised lands and there is no dispute that he discharged the obligations under the lease in respect of the rent due for the fasli years 1358, 1359 and 1360. In respect of fasli 1361 he was in arrears to the extent of 177 kalams, 7 marakkals and 2 measures, cash rent of Rs.50 and 78 bundles of straw. In respect of fasli 1362, he was in arrears to the extent of 974 Kalams of paddy, cash rent of Rs.50 and 535 straw bundles. 2. It appears that the lessee sub-let large portion, of his holding to various tenants about 40 in number. After the advent of Madras Ordinance IV of 1952, and Madras Act XIV of 1952 which came into force on 23-8-1952, 36 out of the 40 sub-lessees, of the lessee, Sambanda Mudaliar, filed applications before the Conciliation. Officer under S.13 of the said Act praying for fixation of fair rent. After the advent of Madras Ordinance IV of 1952, and Madras Act XIV of 1952 which came into force on 23-8-1952, 36 out of the 40 sub-lessees, of the lessee, Sambanda Mudaliar, filed applications before the Conciliation. Officer under S.13 of the said Act praying for fixation of fair rent. These applications were preferred by the sub-tenants of Sambanda Mudaliar impleading only Sambanda Mudaliar as party respondent. It is obvious that the sub-tenants of Sambanda Mudaliar who had no privity of contract with the Sri Mahalingaswami Devastanam, could not have agitated for fixation of fair rent as against the devastanam, The Conciliation officer fixed the fair rent payable by the sub-tenants at 2750 kalams the Devastanam which was certainly not bound by the order of the Conciliation officer, not having been made a party to the proceedings before him, however, felt aggrieved by that order and preferred an appeal to the Revenue Divisional Officer, Mayurara. By order dated 13-8-1953, the Revenue court, Mayuram, confirmed the finding of the Conciliation Officer fixing the fair rent at 2750 kalams. The devastanam then preferred W.P. No.24 of 1954 on the file of this court challenging the validity of the orders of the subordinate tribunals in the matter of fixation of fair rent but without success. This court dismissed the writ petition on 8-11-1955. 3. The devastanam filed the suit O.S. No.27 of 1956 on the file of the court of the Subordinate Judge, Kumbakonam, against its tenant Sambanda Mudaliar, for recovery of arrears of rent. For fasli 1361, the value of the paddy claimed was at the rate of Rs.6-13-6 per kalam and for fasli 1362 the value of the paddy was claimed at the rate of Rs.10 per kalam. The value of the hay bundles was claimed at the rate of one rupee per bundle. Arrears of cash rent was also claimed. The advance of Rs.4000 returnable by the devastanam to the lessee was adjusted towards the dues of the lessee and the net amount of Rs.9072-3-11 was the subject matter of the plaint claim. Interest at the rate of 51/2 per cent per annum was also claimed on the arrears due. 4. Arrears of cash rent was also claimed. The advance of Rs.4000 returnable by the devastanam to the lessee was adjusted towards the dues of the lessee and the net amount of Rs.9072-3-11 was the subject matter of the plaint claim. Interest at the rate of 51/2 per cent per annum was also claimed on the arrears due. 4. The suit was resisted by the defendant Sambanda Mudaliar, on the ground that Madras Act XIV of 1952 brought in unforeseen circumstances preventing him from claiming from his sub tenants the rent that he stipulated with them, that such circumstances was something beyond his control, and that the terms of the lease deed between himself and the devastanam became unenforceable in all rigour and absoluteness. He further contended that the devastanam was bound by the order of the Conciliation officer who fixed the fair rent at 2750 kalams per year as the devastanam was literally a party to the proceeding though not at the initial stage, inasmuch as it intervened at a subsequent stage by filing an appeal to the revenue court and by filing a writ petition in this court. 5. The trial court framed several issues of which the following alone are material. (i) Whether the lease deed sued on has become void by reason of Madras Act XIV of 1952 and whether the terms are not enforceable by law; and (ii) whether the plaintiff is not bound by the fixation of fair rent by the conciliation officer as contended by the plaintiff. 6. The defendant gave evidence as D.W.1 and deposed that previous to Madras Act XIV of 1952 he had sub-leased the lands to a number of tenants stipulating a total rent of 4000 kalams. He further deposed that after Madras Ordinance IV of 1952 which preceded Act XIV of 1952, he sub-leased the properties for a reduced rental of 3500 kalams but as a result of the fixing of fair rent at 2750 kalams by the Conciliation Officer he could not realise the stipulated rent. 7. The learned Subordinate Judge, Kumbakonam, who tried the suit was of the opinion that the lessee was not absolved from his obligations under the lease by reason of the supervening legislation under Madras Act XIV of 1952. That appears to be the gist of his conclusion though there is no express finding in this behalf. 7. The learned Subordinate Judge, Kumbakonam, who tried the suit was of the opinion that the lessee was not absolved from his obligations under the lease by reason of the supervening legislation under Madras Act XIV of 1952. That appears to be the gist of his conclusion though there is no express finding in this behalf. The learned Subordinate Judge however thought that the case was a fit one in which the court can grant some remission to the lessee. The learned Judge following the observations of Ramaswami J. in an unreported decision observed as follows: "Thus we find that the court has recognised an informal agreement entered into between the parties regarding grant of remission to lessees. When that is so much more readily a court must grant remission in a case as the present one where the statute has supervened to fix the quantity of produce and the manner in which the produce should be shared between the tenant and landlord. It is not disputed that the defendant realised 2750 kalams though it has been suggested by the learned counsel for plaintiff that it should be something more because during kuruvai produce he ought to have got according to the pre-existing rate at which rent was payable........It is not possible to make any provision for the expenses said to have been incurred by the defendant in the matter of calculation of rent. Such a loss is unavoidable in the circumstances and he must bear it. I accordingly fix that the quantity of paddy measurable for fasli 1362 is 2750 kalams." On this basis the learned Subordinate Judge granted a decree in favour of the devastanam for a sum of Rs.6380-5-8 with subsequent interest at 51/2 per cent Per annum and proportionate costs. 8. The defendant had made a counter claim in the written statement seeking to recover from the devastanam a sum of Rs.2549-13-0 for fasli 1361, the defendant admitted liability in a sum of Rs.1209-14-0. For fasli 1362 he calculated the value of paddy at Rs.6-10-0 per kalam and the value of 555 kalams bundles of straw at 8 annas per bundle. He staled that the arrears of paddy rent due was only 36 kalams and 6 marakkals. After deducting the arrears as set out in the written statement from the advance of Rs.4000 due to him he wanted a refund of Rs.2549-13-0 from the devastanam. He staled that the arrears of paddy rent due was only 36 kalams and 6 marakkals. After deducting the arrears as set out in the written statement from the advance of Rs.4000 due to him he wanted a refund of Rs.2549-13-0 from the devastanam. In view of the finding of the learned Subordinate Judge fixing the rent payable by the defendant at 2750 kalams he had necessarily to dismiss the counter claim of the defendant. 9. The lessee, Sambanda Mudaliar preferred an appeal, A.S. No.198 of 1957 on the file of the court of the District Judge, West Tanjore at Tanjore seeking to get rid of the decree against him and seeking to establish his counter claim against the devastanam. The devastanam preferred a memorandum of cross objections in this appeal and claimed that the suit must have been decreed in full as prayed for in the plaint. The learned District Judge framed the following points for consideration; (i) whether the lessee (defendant) is entitled to any and what remission of rent; and (ii) what is the correct price of paddy and straw. Dealing with the contention of impossibility of performance based upon S.50 of the Indian Contract Act he held that it cannot be stated that the foundation of the contract of lease between the parties was undermined so as to become impossible of performance within the language of the statute and that therefore such defence on the part of the lessee failed. But the learned District Judge, however, held that the case was one in which granting of remission to the lessee would be fair, reasonable and just. In this connection he observed as follows: "In the unreported judgment of our High Court that is extracted by the learned Subordinate Judge, a certified copy of which is produced before me, it is seen that His Lordship held that 10 per cent remission granted by virtue of Mayuram agreement was bare justice in giving recognition to the same. Now that, by virtue of Act XIV of 1952, the defendant was prevented from collecting more from his sub-lessees, it would surely be a better ground to grant remission. In my opinion, it is necessary to do so in order to avoid denial of justice though Ex.A.1 again and again says that under no circumstance the lessee can claim any remission whatsoever. In my opinion, it is necessary to do so in order to avoid denial of justice though Ex.A.1 again and again says that under no circumstance the lessee can claim any remission whatsoever. It is therefore a case for giving remission, and the question is as to what is the remission to be granted to the lessee." In this view of the matter the learned District Judge held that a pro rata 20 per cent reduction in the paddy rent payable under Ex.A.1, the lease deed, would appear to be commensurate, if Act XIV of 1952 would apply. But he also held that the defendant being only a mere intermediary could not avail himself of the benefit of Madras Act XIV of 1952. The learned District Judge granted a remission of 400 kalams in all representing a just estimation for expenses of collection and other circumstances taken note of by him in paragraph 12 of his judgment. He fixed the arrears of paddy for fasli 1362 at 574 kalams and granted a decree in favour of the plaintiff-devastanam for Rs.4593-35 np. The result was the decree of the trial court was modified in the manner indicated. The memorandum of cross-objections preferred by the devastanam was or course dismissed. 10. The above second appeal has been filed by the aggrieved devastanam and it is contended on their behalf that the judgment and decree of the courts below in granting only a decree for a portion of the amount sued for is erroneous to law and unsustainable. A memorandum of cross objections has also been preferred by the defendant-lessee evidently with a view to minimise his liability still further if possible, and also to press his counter claim against the devastanam asking for a refund of Rs.2549 and odd. 11. It mast be mentioned even at the outset that having regard to the terms of the lease deed, Ex.A.1, in and by which the lessee undertook: to pay the stipulated rent unconditionally, despite act of State or God the court has no power or jurisdiction to relieve the lessee from the obligations undertaken by him on what may be called equitable grounds. The law on this subject must now be held to have been finally laid down by a recent decision of a Bench of this court in A.S. No.1172 of 1953 dated 2-5-1958 (Mad). The law on this subject must now be held to have been finally laid down by a recent decision of a Bench of this court in A.S. No.1172 of 1953 dated 2-5-1958 (Mad). The lease in that case was not subject to any remission for act of State or of God and contained an express stipulation that there would be no remission whatever of the rent on any ground. In fact the terms of the lease deed in this case are precisely the same as those found in the lease deed forming the subject matter of that decision. Ramachandra Iyer J. who delivered the judgment observed as follows: "It is clear from the above decisions that the lessee would be liable to pay in accordance with the contract and that there is no power in court to relieve him against his obligations under it...... We are of opinion that having regard to the terms and conditions of Ex.A.8 and also the fact that the lessee was in possession of the property during the entire period of lease the respondents would be liable to pay rent notwithstanding the fact that at the time of the samba harvest of fasli 1356 they sustained loss on account of the agrarian trouble." In Velur Devastanam v. Sundaram Nainar, 1959-1 Mad, LJ, 244 Ramaswami, J., held that where the lease was absolute and unconditional the lessee was liable to pay in accordance with the contract and that there was no power in the court to relieve him against the obligations under it invoking any equitable principles. The learned Judge referred to and followed the decision of the Division Bench cited already. It is, therefore, clear that the view of the courts below holding that the lessee was entitled to some remission by reason of the advent of unexpected circumstances introduced by the coming into the statute book of Madras Act XIV of 1952 cannot stand. 11a. Chitty on Contracts, 20th Edn. page 203 contains the following: "A man is bound by his contract, if he does not choose to limit his liability he must take the consequence of being unable to perform his obligations. 11a. Chitty on Contracts, 20th Edn. page 203 contains the following: "A man is bound by his contract, if he does not choose to limit his liability he must take the consequence of being unable to perform his obligations. So prima facie an absolute contract admits of no exception in favour of the promisor, who will be liable for a breach thereof, notwithstanding that the occurrence of an accident or other contingency has put it beyond his power to perform it. The classical citation on this point is Paradine v. Jane, (1647) Aleyn 26 an authority often quoted and indeed followed today. There a lessee was sued for rent. He pleaded that he had been evicted and kept out of possession by an alien enemy. The lessee had in consequence been deprived of the profits of the land, from which the rent would have been paid by events beyond his control. He was nevertheless held liable on the ground that where the law creates a duty or charge and the party is disabled to perform it and hath no remedy over, there the law will excuse him. . . but when the party of his own contract creates a duty or charge upon himself he is bound to make it good if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract." I am of opinion that the defendant in the suit, the lessee, is not entitled to any remission on general considerations of hardship or other notions of equity which if permitted to be availed of would really amount to making a new contract or bargain between the parties by the court. 12. Mr. K.S. Champakesa Aiyangar, learned counsel appearing for the respondent being fully alive to the difficulties in the way of his client being able to obtain any remission in the matter of the fulfilment of his contractual obligations under the lease contended that the facts and circumstances of the case attracted the applicability of the doctrine of impossibility of performance as embodied in S.56 of the Indian Contract Act. The learned counsel submitted that it was an invariable practice on the part of the lessees who obtained leases from devastanam and other public institutions of large extents of land to sublet them to various persons parcelling out the holding into fragments or small plots. The learned counsel submitted that it was an invariable practice on the part of the lessees who obtained leases from devastanam and other public institutions of large extents of land to sublet them to various persons parcelling out the holding into fragments or small plots. Such practice was so invariable and so widely prevalent especially in Tanjore district that, so the argument ran, the court must take judicial notice of it. The learned counsel developed his argument further thus. It must have been within the contemplation of both the contracting parties to the lease that the practice referred to above would be followed, and any impossibility in the performance of the obligations of the sub lessees, who were sure to come in would also amount to an impossibility on the part of the lessee himself. The sub-lessees in the instant case having successfully put forward Madras Act XIV of 1952 as a weapon of defence against the lessee and prevented him from realising more than the fair rent fixed namely 2750 kalams, the lessee can use the same weapon against the devastanam taking shelter under the provisions of S.56 of the Indian Contract Act. 13. Sec.56 of the Indian Contract Act is as follows: "An agreement to do an act impossible in itself is void: A contract to do an act which, after the contract is made, becomes impossible or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. Where one person has promised to do something which he knew, or, with reasonable diligence might have known, and which the promisee did not know to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non-performance of the promise." 14. In order to attract the said provision the contract sought to be enforced should become impossible or by reason of some event which the promisor cannot prevent become unlawful. The impossibility can be caused by a supervening statute. In order to attract the said provision the contract sought to be enforced should become impossible or by reason of some event which the promisor cannot prevent become unlawful. The impossibility can be caused by a supervening statute. "where performance of a contract has been rendered impossible by an Act of Parliament passed after the contract was made, the promisor is excused from performing the promise, unless it appears that he intended to bind himself, with reference to the future state of the law, for the presumption is that the parties intend to contract with reference to the law as existing at the time when the contract is made. The same principle applies where performance is rendered impossible by orders or regulations made under an Act or parliament" (Halsburys Laws of England. Volume 8, page 184 paragraph 319). 15. It cannot be contended in the present case by the lessee that Madras Act XIV of 1952 rendered impossible the fulfilment of his contract to pay rent to the lessor, the devastanam. The lessee is not a cultivating tenant within the meaning of the said enactment. He is a mere intermediary who, having taken on lease a large extent of properties as a commercial or speculative venture, was in effect functioning as an ijaradar or a farmer of rent intending to make profit. The description in the cause title indicates that he is a businessman having a trade in the municipal town of Kumbakonam and he does not pretend to be a cultivating tenant entitled to the benefits of Madras Act XIV of 1952. The contract of lease therefore cannot be said to have become impossible of performance or rendered unlawful by the said enactment. On the plain terms of S.56 of the Indian Contract Act. it is clear that the lessee cannot claim any relief under that section. 16. The Supreme Court of India considered the meaning of the expression "impossible" occurring in S.56 of the Indian Contract Act in the decision in Satyabrata Ghose v. Mugneeram Bangur and Co., AIR 1954 SC 44 . At p.46 Mukherjee J. observed as follows: "This much is clear that the word impossible has not been used here in the sense of physical or literal impossibility. At p.46 Mukherjee J. observed as follows: "This much is clear that the word impossible has not been used here in the sense of physical or literal impossibility. The performance of an act may not be literally impossible but it may be impracticable and useless from the point of view of the object and purpose which the parties had in view; and if an untoward event or change of circumstances totally upsets the very foundation upon which the parties rested their bargain, it can very well be said that the promisor finds it impossible to do the act which he promised to do." 17. The impossibility referred to in S.56 is not what may be called "commercial impossibility". An absolute contract involving unconditional terms by way of obligation undertaken by one of the contracting parties may, if enforced, result in hardship, prejudice, loss or detriment to the promisor. But, surely, the loss or damage suffered by the promisor in the course of fulfilling the obligations cannot absolve him from liability in the least degree. The mere fact that a contract has been rendered more onerous does not of itself give rise to frustration. (Hangkam Kwingtong Woo v. Liu Lan fong, 1951 AC 707). 18. There is no frustration where performance of the contract remains physically and legally possible though commercially unprofitable Blackburn Bobbin Co. v. Allen and Sons, 1918-2 KB 467; Comptoi Commercial Anversois and Power, Son and Co.s Arbitration, In re, 1920-1 KB 868. 19. I do not agree with the contention raised on behalf of the respondent that it was within the contemplation of both the contracting parties to the lease that there would be a sublease by the lessee and that there will not be any impediment on the part of the lessee collecting the stipulated rent from the sub-lessees. Neither the express terms of the contract of lease nor the implications resulting from the terms of the lease can sustain such an argument. It is not possible for the court to take judicial notice of the fact that the lessees of large extents of property from devastanam or public institutions in turn indulge in granting subleases. Even if it were so it is impossible to hold that that was the very basis or foundation upon which the contract of lease rested. It is not possible for the court to take judicial notice of the fact that the lessees of large extents of property from devastanam or public institutions in turn indulge in granting subleases. Even if it were so it is impossible to hold that that was the very basis or foundation upon which the contract of lease rested. If that was not the basis the mere fact that the sub-lessees gained an advantage under the Madras Act XIV of 1952 is not a relevant factor enabling the lessee to plead any defence based upon S.56 of the Indian Contract Act. 20. In this context reference may be made to two decision, of this Court, one in President of Dt Board. South Kanara v. Santhappa Naick, 66 Ind Cas 382 : ( AIR 1925 Mad 907 ) and the other in Samuel Fitz Co. v. Standard Cotton and Silk Weaving Co. Calicut, AIR 1945 Mad 291 . In the case first cited the District Board of South Kanara, let out the right to collect tolls at the gates of a bridge in favour of an individual. A contract to this effect was entered into between the District Board and the individual. Subsequent to the contract, the Government acting in the interests of the public prohibited by an ordinance traffic of food and grains over the bridge and this act of the Government resulted in diminution of collection of tolls by the individual who contracted with the District Board. That individual suffered loss in consequence. The question for consideration in that case was whether the individual contracting party can plead impossibility of performance of his contract with the District Board? It was held that such a contention of impossibility of performance was not open to the promisor. At page 363 of the decision (Ind Cas) : (at pp.907-908 of AIR) it was observed as follows: "Here it cannot be said that the contract to collect tolls at these two toll gates became impossible by reason of the Government passing an ordinance. At page 363 of the decision (Ind Cas) : (at pp.907-908 of AIR) it was observed as follows: "Here it cannot be said that the contract to collect tolls at these two toll gates became impossible by reason of the Government passing an ordinance. In order to relieve the plaintiffs of their liability under the contract, the performance of it must become impossible as in a case where the right is to collect the tolls for the passage of traffic on a bridge, if the bridge is washed away by a flood, it may be said that the performance of the contract (the collection of tolls) becomes impossible by reason of the bridge being washed away." In the other case one S had dealings with a merchant in Australia to whom it sold cotton: fabrics described as tapestries made by one P. resident in Calicut. There was a contract between S and P with regard to the making of tapestries by P for S who made it clear that be intended to sell them in Australia. The Australian Government passed an order prohibiting the import of such goods after a particular date namely 1-4-1942, except under certain conditions. The result wag that the market on which S had relied for the sale of the goods purchased from P under the contract was lost. S wrote to P informing him of these circumstances and asking for cancellation of their orders. P claimed damages upon such cancellation. The question for consideration was whether the aggrieved party ran plead impossibility of performance under S.56 of the Indian Contract Act. At page 293, their Lordships observed as follows: "We are unable to say in this case that the foundation of the contract was that these goods should be resold by the defendants to their clients in Australia .... If the contract, as we are satisfied it was, was merely to send goods to Madras, then that contract could be fulfilled; and the plaintiffs were at all times ready and willing and able to send the goods there". 21. It seems to me very clear that no impediment was created by the statute, Madras Act XIV of 1952, in the way of the lessee performing his obligations under the contract of lease, and that the plea of impossibility of performance based upon S.56 of the Contract Act must fail. 21. It seems to me very clear that no impediment was created by the statute, Madras Act XIV of 1952, in the way of the lessee performing his obligations under the contract of lease, and that the plea of impossibility of performance based upon S.56 of the Contract Act must fail. Such change of fortune as was caused by the Act cannot be regarded as so fundamental as to strike at the root of the agreement and render its performance impossible in the manner contemplated by the parties. 22. The question as to how far this doctrine of impossibility of performance will affect a contract of lease is also one not free from doubt. Anson in his text book on the Law of Contracts, 20th Edn. at page 350 observes as follows: "A difficult question which has not yet been finally decided by the courts relates to the application of the doctrine of frustnation to a lease. In Criklewood Property and Investment Trust Ltd. v. Leightons Investment Trust, Ltd. 1945 AC 221, lessees had a building lease for 99 years for the erection of shops. By reason of restrictions imposed under the Defence of the Realm Regulations they were unable to continue their building operations, and in an action by the lessors for the rent they pleaded that the lease had been frustrated, and that their liability for the rent had therefore ceased. As the lease had still more than 40 years to run, and as it was reasonable to assume that the interruption would cover only a small part of that period, the House of Lords had no hesitation in holding that on the facts of this case there had been no frustration...." "In this state of the authorities the decision of the Court of appeal that the doctrine of frustration cannot be applied to a lease must be taken to represent the law." 23-24. Chitty in his Book on Contracts, 20th Edn. has also dealt with this subject at page 216: "In the court of Appeal Younger LJ held that the doctrine of frustration had never yet been applied to leases for the reason given by Lush J. in London and Northern Estates Co. v. Schlesinger, 1916-1 KB 20. Chitty in his Book on Contracts, 20th Edn. has also dealt with this subject at page 216: "In the court of Appeal Younger LJ held that the doctrine of frustration had never yet been applied to leases for the reason given by Lush J. in London and Northern Estates Co. v. Schlesinger, 1916-1 KB 20. Moreover, White Hall Court Ltd. v. Ettlinger, 1920-1 KB 680 was approved by the court of Appeal, where it was held that the doctrine does not apply to a contract which creates an estate by demise. Nor does the doctrine apply to the letting of a furnished house. It is noteworthy that 1647-Aleyn 26, was quoted with approval. It seems that this case is still of authority with regard to leases." 25. It may be that the decisions of the English court on this subject should not be applied and followed in considering the provisions of S.56 of the Indian Contract Act. The Supreme Court observed in the decision already cited, AIR 1954 SC 44 that such decisions have only a persuasive value and should not be taken as authoritative pronouncements binding on this Court. It is however unnecessary to express any final opinion on this aspect of the matter in view of the fact that I have held that S.56 of the Indian Contract Act has no application on the facts and circumstances of the present case. 26. There remains the question as to how far the order of the Conciliation officer fixing the fair rent at 2750 kalams will enable the lessee to get round his contractual obligations under the contract of lease. It must be remembered that there was no lis between the lessee and the devastanam of any kind which was adjudicated upon in those proceedings under S.13 of Madras Act XIV of 1952. The only question that was decided was whether the sub-lessees of the defendant were entitled to have a fair rent fixed in respect of their rental obligations. Though the devastanam intervened in the said proceedings and became a party to those proceedings and therefore became bound by the adjudication therein the position of the devastanam so far as the present claim is concerned was in no way affected. I am of the opinion that the plaintiff devastanam is not disentitled to enforce its rights under the lease agreement against the defendant by reason of the said proceedings. I am of the opinion that the plaintiff devastanam is not disentitled to enforce its rights under the lease agreement against the defendant by reason of the said proceedings. 27. The defendant has failed in all the contentions raised by him. He is not entitled to any remission and he is not entitled to plead impossibility of performance as an execuse for non-performance of the contract or default in the matter of payment of the stipulated rent. It follows that the plaintiff-devastanam will be entitled to a decree as prayed for in the plaint. 28. The learned counsel for the respondent contended that in any event the plaintiff will be entitled to claim as value of the paddy only at the levy rate prescribed by the Government, and not at the open market price. There is no substance in this contention. The contract of lease specifically provides that the lessee should in default of delivery of the paddy rent pay at the market price. I therefore overrule this contention and hold that the value of the paddy fixed by the court below is correct. 29. In the result, the above second appeal is allowed. The decrees of the courts below are modified and there will be a decree in favour of the plaintiff-appellant for the amount prayed for in the plaint with subsequent interest at 51/2 per cent per annum from the date of the plaint. A decree will be drafted accordingly. The appellant will get his costs from the respondent in this second appeal. As the decision of the courts below were to some extent based upon the observations of one learned Judge of this court, the order for costs passed by the lower appellate court will stand. 30. The memorandum of cross objections is dismissed. No costs. Leave refused. Appeal allowed. Cross objections dismissed.