JUDGMENT
Srinivasa Aiyangar, J.
1. This is a Civil R. P. in a small cause case. Plaintiff is the petitioner. His suit in the Court below was dismissed as the lower Court held that under Section 30, Contract Act, the plaintiff was not entitled to recover the amount, I am glad to have been able to come to the conclusion that there is no reason in this case to interfere with the decision of the lower Court. The facts are these. The plaintiff and another person entered into what was admittedly a wagering contract with regard to cock fighting. It was agreed that both of them should pay into the hands of the stake-holder ( defendant ) a sum of Rs. 60 on the condition that the total sum of Rs. 120 should be paid over by the stake-holder to the person whose cock should win in the fight. The plaintiff’s case is that the fight or match ended in a draw. On that basis he has instituted this suit for the recovery of the sum of Rs. 60 paid by him into the hands of the stake-holder. The defendant pleaded that he had already paid off to the other party ‘to the contract the whole amount because it is not true that the match or fight ended in a draw, but because in the match or fight the cook of the other party had really won. This question of fact, however, has not been tried by the Court. The lower Court has dismissed the plaintiff’s action on the ground ‘that the claim is unsustainable under the provisions of Section 30, Contract Act.
2. M. Y. Suryanarayana, the learned vakil for the petitioner, has argued the case citing a number of English decisions. Before I proceed to the consideration of the English decisions I must say that to my mind Section 30, Contract Act, in terms clearly applies to the present case. In the first clause of the section it is provided as follows:
Agreements by way of wager are void; and no suit shall be brought for recovering anything alleged to be won on any wager, or entrusted to any person to abide the result of any game or other uncertain event on which any wager is made.
3. Taking those words I find it extremely difficult to see why an amount paid by a party to a wagering contract into the hands of a stake-holder should not be regarded as money entrusted to any person to abide the result of any game or other uncertain event on which any wager is made If the matter were res integra and if I had not felt bound by the mass of judicial opinion in England which had been brought to bear upon the proper construction of the section of the English Gaming Act, in terms almost identical with the present section, I should have had no hesitation whatever in deciding the case offhand against the plaintiff. But the learned vakil for the petitioner has referred to various English cases where the learned Judges have stated what they ‘Considered to be the true construction of Section 18, Gaming Act, 8 and 9, Vic. Ch. 109.
4. I need only for that purpose refer to two cases. In the case of Hampden v. Walsh [1876] 1 Q.B.D. 189, it was held on the authority of the decided cases that the section did not apply to the recovery of a sum deposited with a stake-holder by the person who deposited the same if he should have demanded the deposit back, before it had been paid over by the defendant to the other party to the wagering contract. The manner in which in this and other cases in England the section has been construed is by regarding the section as referring only to cases where the winner ‘in the wagering contract sues either the other party to the contract or the stake-holder for the money payable under the wagering contract. The construction placed by the Court on the clause
deposited with any person to abide the result of any game or other uncertain event on which the wagering is made
was that as in the case of the winner in ‘the wagering contract suing the other party to the contract for the money won by him, similarly the suit against the stake-holder or depositee must also be on the footing that having won in the match or wager the stake-holder ‘has become liable to pay the amount to the winner.
5. The other English case that was cited was Diggle v. Higgs (1877) 2 Exch. D. 422. The curious feature in that case is that Lord Cairns L.C. and Bramwell L. J. having regard to the previous decisions came to the conclusion that the words of the section refer only to the winner in the wager and prevent him from recovering the money either from the other party to the contract or from the stake-holder. But Cockburn, C.J., has some very pertinent observations to make with regard to. the obvious meaning of the terms of the section. This is what he says:
If it were res integra I should have thought that this action was excluded by the provision in Section 18, which says that no suit shall be brought to recover any sum of money which shall have bean deposited in the hands of any person to abide the event on which any wager shall have been made. I think that what the statute was in-tended to effect there was that whereas, but for the statutory provision, after the event had come off, a winner might insist on having the money paid to him, or, before the event, that person who had deposited the money might have recovered it back from the stake-holder, the statute was intended to strike at all wagers; it was intended to hit both these possibilities, in order that the time of the Court should not be taken up with litigation of this sort.
6. I respectfully agree with the observations of that learned Judge. But in a matter like this where the Indian statute practically reproduces the English enactment, as pointed out by their Lordships of the Privy Council, in the case of Joseph Trintle v. George Hill [1880] 5 App. Cas. 342., it would not be proper to neglect the judicial decisions in England which have decided the proper construction of the section to be one thing and not another. I do not think that the case of Ramachandra Shivdar v. Gangabison Jaideo [1910] 12 Bom. L.R. 590, has anything to do with the present case, because it was clearly a decision under the Bombay Act, and, so far as the observations of Beaman, J., in that case go, they are by way of approval of the English decisions. A case decided in this Court was also cited by the learned vakil for the petitioner, Shrikaholapur Venkataraja v. Ramanujam [1918] 34 M.L.J. 561. The decision in that case is also not an authority in the present case because that was a case where money deposited by way of security by one of the parties to a wagering contract for the performance of the contract itself could not be regarded as money deposited to abide the result of a wager within the meaning of Section 30. There are other observations in that case, though it is difficult to say whether they were considered observations, to the effect that the learned Judges did not regard the amount in that case as entrusted to any person to abide the result of any game or other uncertain event on which any wager is made only because it was not money left with the stake-holder. But at the same time the learned Judges refer to and follow the English decision already referred to above. I must therefore take it that the construction of the section on which I should act, haying regard to the mass of judicial opinion in England, is that that section is applicable to prevent a case only when the party suing is claiming the amount under the terms of the contract. In all the English cases referred to by me and the other cases cited at the Bar, on the facts it appeared to be clear that the plaintiff’s cause of action in the oases was that though there was a deposit with a stakeholder by reason of a wagering contract still before it was effectuated or money was paid over, the plaintiff who was suing had revoked the agency of the depositee or otherwise by his act rendered the amount in the hands of the stake-holder as money payable back to the plaintiff It is possible that all those cases might be explained on the basis that though originally the deposit was made under the wagering contract, on the cancellation or revocation of the authority given to the depositee, the money ceased there and then to be held under the contract and became money held merely for the plaintiff and repayable to him. In the present case, however, there is no such allegation.
7. There is no averment to which my attention has been drawn by the plaintiff that the plaintiff had cancelled or revoked the authority of the defendant and that therefore the money deposited with him had ceased to be money capable of being described on the date of the action as money still held by the stakeholder defendant on the result of a wagering or uncertain event. It seems to me unnecessary to refer in particular to the expressions of opinion by several learned Judges where it has been held that it was the cancellation or revocation of authority that rendered the sum sought to be recovered to cease to be money held by the stake-holder under the wagering contract and gave it the character of money merely held for the plaintiff. The absence therefore of such an averment in the present case and, therefore, of such a cause of action, it seems to me, is sufficient to justify the dismissal of the plaintiff’s case. I may also put it in a slightly different way. If the principle on which the English Courts have decided in the manner they did with regard to the recovery of moneys from the stake-holder by one of the parties to the wagering contract was that the section intended to prevent only the recovery of moneys on the wager by reason of or on the basis of the contract itself, then it follows that if for any reason the Court should find or hold that the action is based upon the wagering contract itself the action cannot be maintained. In other words a wagering contract being void under the law no one can base a cause of action on a contract so void, and that alone according to the decisions of the English cases is what is forbidden by the particular section. In. the present case what the plaintiff has stated is this: There was a cock fight-It resulted not in. a win for the other party or for me, but in a draw, and therefore I became entitled to be paid back by the stake-holder, the defendant, the sum of money paid by me. I regard therefore the suit itself as based entirely upon the wagering contract. No ‘doubt the term of the contract is nob referred to and re lied upon by the plaintiff, namely, that if the match or fight should result in a draw the amount should be paid back to the respective parties; but that was obviously an implied term in the contract which the plaintiff made the cause of action in the suit. If the plaintiff’s case therefore should be regarded, as I do regard it, as one to enforce the term in a wagering contract, namely, that in the event of a draw the money should be paid back to the plaintiff, this suit, is nonetheless a suit to enforce a contract and therefore for a relief on the basis of the contract itself and therefore without proving the contract or relying upon it the plaintiff cannot succeed. Nothing, else is set up as the cause of action.
8. The law generally in these eases is that the party, whether the plaintiff or the. defendant must fail if he cannot succeed in making out his claim without proving as. a necessary part of it a wagering contract. In this action, as laid, by the; plaintiff, it seems to me impossible that the Court should find the claim in favour of the plaintiff without referring to the contract itself and determining the terms thereof. It may also be observed that the defendant by his defence raised the issue regarding, the result of the match or the fight itself, alleging, that the fight did not end in a draw as alleged by the plaintiff, but did really result in a win for the other party to the contract. If so the position in which the Court finds it-itself is that it is called upon by the issues raised to decide the question whether in this cock fight the plaintiff won or the other party to the contract. Whatever Section 30 intended or ‘not to prevent, I feel satisfied that it did intend clearly to prevent the Court being called upon to arbitrate with regard to the result of the cook fight. I, therefore, come to the conclusion that the suit by the plaintiff cannot be regarded as a suit on the basis of the cancellation or revocation of any power originally given to the defendant by reason whereof the money became in ‘law repayable to the plaintiff, or as anything other than a claim based on the wagering contract itself and on the ground of an implied term of such contract. I, therefore, hold that the decision of the lower Court was right. In the result I dismiss the petition with costs.
