LexBUDHWANTI AND ANR. versus GULAB CHAND PRASAD
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/ A BUDHWANTI AND ANR. v. GULAB CHAND PRASAD MARCH 4, 1987 B [SABYASACHI MUKHARJI AND S. NATARAJAN, JJ.] Doctrine of "Jn pari delicto", applicability of-Whether it applies to tenants also who pay enhanced rents in contravention of the Rent ~ Restriction Acts, and therefore, cannot claim later adjustment of excess rent paid contrary to law, in eviction cas.~s on the plea of default of rent C and applicability of the doctrine. __ ,._\ "" Second Appeal, scope of-Interference with the finding of fact by the High Court, when permissible-Section JOO of the Code of Civil Procedure. >- D The first appellant, widow of one Dir. Ramachandra, a tenant since 1932 of one room used as a medical shop was recognised as tenant on the death of her husband in or ahont 1%1~ by Bahn Lal, the original landlord. The rent was fixed at Rs.16 per month. Over the years the rent came to be increased from Rs.16 to 60 per month, i.e. both when Dr. Ramachandra was alive and also later. Babnlal died on 14.11.1973 E and the respondent became the Karla of the family as the senior most male member of the joint family. The respondent issued a notice on 12.6.1974 terminating the tenancy with effect from 30.6.1974 and called upon the first appellant wife to surrender possesssion of the leased shop from 1.7.74. As the appellants (wife and son of Dr. Ramachandra) failed to deliver possession a suit for eviction was filed under the Bihar F Buildings (Lease, Rent and Eviction) Control Act on two grounds: (a) default of rent and (b) honafide requirements of the junior members of the joint family. The trial conrt allowed the eviction petition. In appeal, the appellate conrt reversed the f'mdiugs of the Trial Court and apply- ing the principle of unjust enrichment contrary to statutory law, held that the appeUants were entitled to have the excess payment adjusted G towards arrears of rent as well as future. payments of rent since 1943. However, in the Second Appeal, the FuU Bench of the Patna High Court held that the rule of "in pari delicto" would squarely apply to tenants who pay enhanced rents ·in contravention of the terms of the Rent Restriction Acts and therefore the appellants cannot claim adjustment of excess rent paid and seek avoidance of their eviction. The High Court H also reversed the f'mding of the appellate conrt on the question of bona 534 - BUDHWANTI v. G.C. PRASAD [NATARAJAN, J.] 535 fide requirement as being vitiated by misreading of facts and mlsappli- A cation of law. Hence the tenant's appeal by special leave. Dismissing the appeal, the court, ffELD: 1. lo Mohd: Salimuddin v. Misrila/ & Anr., [1986] 2 SCC 378, the Supreme Court have taken care to set out that the doct- B rine of "in pari delicto" will not be attracted when there is no element ~ of compnlsion or exploitation and both parties have by consensus con- travened the provisions of law for their mntoal advantage. [5390-E) 2. It is true that in a second appeal a finding on fact even if erroneous will generally not be disturbed but where it is found that the C finding is vitiated by application of wrong tests or on the basis of con- jectnres and assumptions then a High Court will be well within its rights in setting aside in a second appeal a patently erroneous rmding in order to render justice to the party affected by the erroneous finding. [540F -GI CIVIL APPELATE JURISDICTION: Civil Appeal No. 4110 D of 1985. From the Judgment and Order dated 22.5.1985 of the Patna High ,. Court in Appeal from Appellate Decree No. 51of1982. S.S. Javali, B.P. Singh and Ranjit Kumar for the Appellants. E S.N. Kacker, M.S. Singh and K.K. Gupta for the Respondent. The Judgment of the Court was delivered by, NATARAJAN, J. This appeal by special leave by the tenants is F directed against the judgment of a Full Bench of the Patna High Court in a Second Appeal against Appellate Decree No. 51 of 1982. By the impugned judgment the High Court allowed the appeal prefer- red by the landlord (respondent herein) and restored the order of evic- tion passed by the Trial Court against the appellants herein on grounds of default in payment of rent and bona fide requirement of the leased G premises for the business.needs of the landlord. The circumstances 1•.nder which the suit came to be filed and the contentions of the parties may be summarised as below. One Babu Lal who died on 14.11.73 and the respondent were H 536 SUPREME COURT RE
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