1. This is an appeal by the tenant defendant against the judgment of affirmance. The suit was one for eviction brought by the landlord respondent under Section 11(1)(d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter to be referred to as the ‘Act’) on the ground of default in the payment of rent within the meaning of the Act.
2. The only defence taken was that it should be deemed that the appellant was not in default in payment of arrears of rent as he had already overpaid in excess of the contractual rent before the period of the alleged default. The period of the alleged default was December, 1970 and the months of January and February, 1971.
3. Admittedly sometime in the year 1965 the appellant was inducted as tenant in the premises in question by one N.K.P Agrawala (or Agrawal) on a rental of Rs. 100/- per month including fixtures and fittings. The appellant claims that the rent for the house in question was only Rs. 30/- and the additional amount of Rs. 70/- was by way of rent for additional fixtures and fittings, to which the respondent was not legally entitled. Shorn of all details, the appellant went on paying the rent at the rate of Rs. 100/- per month from the date of the initiation of the tenancy. The house admittedly belonged to the joint family of the afore-mentioned N.K.P Agrawala. On or before the 1st of February, 1970 there was a partition in the joint family of Agrawala and the house in question was allotted to the share of the present plaintiff landlord (respondent). From the period beginning 1st Feb., 1970 the appellant began paying rent to the plaintiff at the same rate of rent of Rs. 100/- with effect from the 1st of Feb., 1970. For the months of December, 1970 and January and February, 1971 a cheque was issued by the appellant drawn in favour of the respondent by way of 3 months' rent at the same rate which, again, was admittedly dishonoured by the bank since the appellant had no credit in his account. Thereafter, on the ground of default the respondent landlord instituted the present suit for eviction on account of the failure in payment of 2 months' rent as envisaged in Section 11(1)(d) of the Act. Both the Courts below have decreed the suit for eviction. There has been some variation made by the lower appellate Court in the operative portion of the judgment with regard to the future rent payable. The trial Court had held that the plaintiff respondent was entitled to recover the arrears of rent at the rate of Rs. 30/- for December, 1970 and January, February and March, 1971, but from April, 1971 to June, 1971 he was entitled to recover rent at the rate of Rupees 100/- per month. This was evidently beyond the scope of the suit and the lower appellate Court reversed this finding of the trial Court and held that the plaintiff was entitled to a monthly rental of Rs. 30/-.
4. The only question which arises for consideration in this case and on account of which this appeal has been referred to a Division Bench is as to whether the appellant was entitled to claim an adjustment from out of the amounts deposited earlier than December, 1970. It was contended on behalf of the appellant that since the realisation of the amount of Rs. 100/- per month was contrary to law and the money was retained by the respondent, the appellant was entitled to take into account the excess payment for adjustment towards future payment which would not make him a defaulter within the meaning of the Act.
5. The argument of Mr. S.C Ghose, learned counsel for the appellant is misconceived. In the case of Raghunandan Prasad v. Deonarain Singh, 1975 BBCJ 494 : (AIR 1976 Pat 195) a single Judge of this Court (namely, S.K Jha, J.) had held that it would be seen from a plain reading of the two provisions as incorporated in S. 8(2) and (3), that two modes have been prescribed for reimbursing a tenant who has paid any money in excess of the fair rent fixed by the Controller. One is right to have the excess so paid refunded to him. This may be so done by a suit or any other remedy available in law. The other mode is that if the tenant so opts, he may show his willingness by notice to the landlord to have such excess adjusted from out of the future rent payable by him. If the option of adjustment has not been exercised by the tenant, it will be futile for him to urge that merely because some excess to which he is entitled, either for a refund or adjustment, is lying in the hands of the landlord, he is immune from payment of the rent and future rent it is true that in that case the provisions of Sec. 8(2) and (3) of the Act were under consideration. The principle, however, has been approved by a Bench of this Court in an unreported decision relied upon by Mr. Ghose in the case of Ramjit Singh v. Shanti Devi (Second Appeal 257 of 1977 decided on 16-8-1979). Mr. Ghose vehemently relied upon that Bench decision to show that if money in excess of the contractual rent is lying in the hands of the landlord, it would be a mere technicality to hold that there has been a default in the payment of rent for any subsequent period if the entire rent for the period complained of is already lying in deposit with the landlord. We are afraid there is some misapprehension with regard to the intent and purport of that Bench decision. That was a case of enhancement of rent during the continuance of the tenancy contrary to the provisions of Section 4 of the Act and, therefore, any unilateral act on the part of the landlord in enhancing the rent contravening a statutory provision, which prohibits such an action, would not enure to the benefit of the landlord. That is not the case here. There has been no enhancement of rent ever since the inception of the tenancy. On the contrary, the rent receipts which are on the record show that the consolidated amount of Rs. 100/- per month was paid inclusive of all fixtures and fittings. At no point of time, it is the appellant's case that the rent having been initially fixed by contract between the parties, the minds being ad idem, there was any enhancement made by the landlord. Mr. Ghose next relied upon a decision of the Supreme Court in the case of Radha Kishan Sao v. Gopal Modi (AIR 1977 SC 1217). That case has not been rightly pressed into service by learned counsel. The facts of that case were that Rs. 50/- was fixed as the monthly rent of the premises leased out and the landlord enhanced the rent by Rs. 28/- for some alleged extra amenities. In such circumstances, the Supreme Court held that the plaintiff was not under any legal obligation to pay extra rent with regard to 5 almirahs and 6 racks. If he had duly paid the contractual rent of Rs. 50/- per month, he was no defaulter in the eye of law. Thus, there is no analogy to the facts of the instant case.
6. There is yet another legal hurdle in the way of the appellant's case. At the very inception of the tenancy the parties, as we have already stated earlier, were at minds ad idem with regard to the rate of monthly rent payable. Assuming for the sake of argument — and, as has been found by the Courts below — the rent for the premises in question was Rs. 30/- per month only, yet having regard to Section 3 of the Act such a contract was illegal but not void. In this context, S. 3 needs to be quoted. It reads thus—
“It shall not be lawful for any person to claim or receive, in consideration of the grant, renewal, or continuance of a tenancy of any building, the payment of any premium, salami, fine or any other like sum in addition to the rent, or the payment of any sum exceeding one month's rent of such building as rent in advance.”
Although the law enjoins that any dereliction in the matter of statutory obligation is not permissible and a positive inhibition on the part of the landlord is prescribed, the tenant, on the facts and in the circumstances of the case, was fully alive to this legal position. Ext. C, which is the appellant's own document and is in reply to a legal notice served by the respondent, for all intents and purposes, shows that at the time when the tenancy was created, there was no extra fitting or fixture but it was merely a ‘cloak’ for realising more money for the lease-hold property. On the appellant's own showing, therefore, he was all along aware of the fact that he was entering into a contract which was prohibited by law, if at all his case is to be believed. That being so, the well-established principle of pari delicto is attracted. It is well-settled that where money is voluntarily paid under an illegal agreement which has been carried into effect, the money so paid cannot be recovered back if the parties are in pari delicto and they had knowledge of the illegality of the agreement before payment. Section 65 of the Contract Act, 1872 has no application in such a case. In this connection, a quotation from the case of Taylor v. Cheater, (1869) 4 QB 309 at pp. 313-314 is apt—
“The maxim that ‘in pari delicto potior est conditio possidentis’, is as thoroughly settled as any proposition of law can be. It is a maxim of law, established, not for the benefit of plaintiffs or defendants, but is founded on the principles of public policy, which will not assist a plaintiff who has paid over money or handed over property in pursuance of an illegal or immoral contract, to recover it back, ‘for the Courts will not assist an illegal transaction in any respect’.”
Similarly, Collins, Master of the Rolls, in the case of Harse v. Pearl Life Assurance Company ((1904) 1 KB 558 at p. 569) observes that—
“It is clear law that where one of two parties to an illegal contract pays money to the other, in pursuance of the contract, it cannot be recovered back… … .. unless there can be introduced the element of fraud, duress or oppression.”
These dicta of the English Courts have been applied times without number by the Indian Courts. Without multiplying the decisions, we may refer merely to a Bench decision of this Court in the case of J.C Field Electric Supply v. K. Agarwala, (1951) ILR 30 Pat 137 : (AIR 1951 Pat 463). If, therefore, the appellant having full knowledge of the illegality of the contract has made payment contrary to law without any oppression or coercion, it cannot lie in his mouth now to say that ‘since I have paid you more, I shall pay you no further’.
7. The matter would have been quite different if the appellant would have paid even at the rate of Rs. 30/- per month for the months of December, 1970 and January and February, 1971, and we could perhaps have given some relief to him. But admittedly no payment whatsoever has been made for the aforesaid 3 months. We thus find no infirmity in the judgments of the Courts below, holding that the appellant has defaulted in paying the rent for 2 months, thereby disentitling him to continue in possession of the lease-hold premises. The decree for eviction must, therefore, be upheld.
8. This appeal, accordingly, fails and is dismissed with costs throughout.
Appeal dismissed.