{"id":90016,"date":"1987-03-04T00:00:00","date_gmt":"1987-03-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/budhwanti-and-anr-vs-gulab-chand-prasad-on-4-march-1987"},"modified":"2015-02-13T17:07:01","modified_gmt":"2015-02-13T11:37:01","slug":"budhwanti-and-anr-vs-gulab-chand-prasad-on-4-march-1987","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/budhwanti-and-anr-vs-gulab-chand-prasad-on-4-march-1987","title":{"rendered":"Budhwanti And Anr vs Gulab Chand Prasad on 4 March, 1987"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Budhwanti And Anr vs Gulab Chand Prasad on 4 March, 1987<\/div>\n
Equivalent citations: 1987 AIR 1484, \t\t 1987 SCR (2) 534<\/div>\n
Author: S Natrajan<\/div>\n
Bench: Natrajan, S. (J)<\/div>\n
           PETITIONER:\nBUDHWANTI AND ANR.\n\n\tVs.\n\nRESPONDENT:\nGULAB CHAND PRASAD\n\nDATE OF JUDGMENT04\/03\/1987\n\nBENCH:\nNATRAJAN, S. (J)\nBENCH:\nNATRAJAN, S. (J)\nMUKHARJI, SABYASACHI (J)\n\nCITATION:\n 1987 AIR 1484\t\t  1987 SCR  (2) 534\n 1987 SCC  (2) 153\t  1987 SCALE  (1)501\n CITATOR INFO :\n R\t    1987 SC2302\t (14)\n R\t    1988 SC1821\t (9)\n\n\nACT:\n    Doctrine of \"In pari delicto\", applicability of--Whether\nit applies to tenants also who pay enhanced rents in contra-\nvention of the Rent Restriction Acts, and therefore,  cannot\nclaim later adjustment of excess rent paid contrary to\tlaw,\nin  eviction  cases on the plea of default of rent  and\t ap-\nplicability of the doctrine.\n    Second  Appeal, scope of--Interference with the  finding\nof fact by the High Court, when permissible--Section 100  of\nthe Code of Civil Procedure.\n\n\n\nHEADNOTE:\n    The\t first\tappellant, widow of one Dr.  Ramachandra,  a\ntenant\tsince  1932 of one room used as a medical  shop\t was\nrecognised as tenant on the death of her husband in or about\n1960 by Babu Lal, the original landlord. The rent was  fixed\nat  Rs.416  per month. Over the years the rent\tcame  to  be\nincreased  from\t Rs.16 to 60 per month, i.e. both  when\t Dr.\nRamachandra  was  alive\t and also  later.  Babulal  died  on\n14.11.1973 and the respondent became the Karta of the family\nas  the\t senior most male member of the\t joint\tfamily.\t The\nrespondent  issued  a notice on\t 12.6.1974  terminating\t the\ntenancy with effect from 30.6.1974 and called upon the first\nappellant  wife to surrender possesssion of the leased\tshop\nfrom  1.7.74. As the appellants (wife and son of  Dr.  Rama-\nchandra)  failed tO deliver possession a salt  for  eviction\nwas  filed under the Bihar Buildings (Lease, Rent and  Evic-\ntion)  Control Act on two grounds: (a) default of  rent\t and\n(b) bonafide requirements of the junior members of the Joint\nfamily.\t The trial court allowed the eviction  petition.  In\nappeal,\t the  appellate court reversed the findings  of\t the\nTrial Court and applying the principle of unjust  enrichment\ncontrary  to  statutory law, held that the  appellants\twere\nentitled to have the excess payment adjusted towards arrears\nof  rent  as  well as future payments of  rent\tsince  1943.\nHowever,  in the Second Appeal, the Full Bench of the  Patna\nHigh  Court  held that the rule of \"in pari  delicto\"  would\nsquarely apply to tenants who pay enhanced rents in  contra-\nvention of the terms of the Rent Restriction Acts and there-\nfore  the appellants cannot claim adjustment of excess\trent\npaid  and seek avoidance of their eviction. The\t High  Court\nalso  reversed\tthe finding of the appellate  court  on\t the\nquestion of bona\n535\nfide  requirement as being vitiated by misreading  of  facts\nand  misapplication  of law. Hence the\ttenant's  appeal  by\nspecial leave.\nDismissing the appeal, the Court,\n    HELD: 1. In Mohd  Salimuddin v. Misrilal & Anr.,  [1986]\n2 SCC 378, the Supreme Court have taken care to set out that\nthe doctrine of \"in pari delicto\" will not be attracted when\nthere  is no element of compulsion or exploitation and\tboth\nparties have by consensus contravened the provisions of\t law\nfor their mutual advantage. [539D-E]\n    2. It is true that in a second appeal a finding on\tfact\neven if erroneous will generally not be disturbed but  where\nit  is found that the finding is vitiated by application  of\nwrong  tests or on the basis of conjectures and\t assumptions\nthen a High Court will be well within its rights in  setting\naside  in  a second appeal a patently erroneous\t finding  in\norder to render justice to the party affected by the errone-\nous finding. [540F-G]\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 4110  of
\n1985.\n<\/p>\n
    From  the  Judgment and Order dated\t 22.5.1985  of\tthe,
\nPatna  High Court in Appeal from Appellate Decree No. 51  of
\n1982.\n<\/p>\n
S.S.  Javali,  B .P. Singh and Ranjit Kumar for\t the  Appel-
\nlants.\n<\/p>\n
S.N. Kacker, M.S. Singh and K.K. Gupta for the Respondent.
\nThe Judgment of the Court was delivered by,
\n    NATARAJAN,\tJ. This appeal by special leave by the\tten-
\nants is directed against the judgment of a Full Bench of the
\nPatna High Court in a Second Appeal against Appellate Decree
\nNo.  51\t of 1982. By the impugned judgment  the\t High  Court
\nallowed\t the  appeal preferred by the  landlord\t (respondent
\nherein)\t and  restored the order of eviction passed  by\t the
\nTrial  Court  against the appellants herein  on\t grounds  of
\ndefault in payment of rent and bona fide requirement of\t the
\nleased premises for the business needs of the landlord.
\n    The circumstances under which the suit came to be  filed
\nand  the  contentions of the parties may  be  summarised  as
\nbelow.\n<\/p>\n
One Babu Lal who died on 14.11.73 and the respondent were
\n536<\/span>
\nbrothers  and were members of a Joint Hindu Family  governed
\nby  the Mitakshra Law. The joint family was the owner  of  a
\nnon-residential building in the G.B. Road, Gaya. One room in
\nthe said building was given on rent in the year 1932 to\t one
\nDr.  Ramachandra,  the husband of the  first  appellant\t and
\nfather\tof the second appellant for running a  medical\tshop
\nknown as Punjab Dental and Opticals Works. The joint  family
\nhas  been running its business in the other portions of\t the
\nbuilding.  The rent was fixed at Rs. 16 per month. Over\t the
\nyears the rent came to be increased from Rs. 16 to Rs.60 per
\nmonth. It would appear that the rent was increased to  Rs.20
\nin  1943,  to Rs.25 in 1946, to Rs.30 in 1947, to  Rs.32  in
\n1951,  to Rs.35 in 1963, to Rs.40 in 1967, to Rs.50 in\t1970
\nand  finally to Rs.60 in 1971. Dr. Ramachandra,\t the  tenant
\ndied  in  or about 1960 and therefore his  wife,  the  first
\nappellant  came\t to  be recognised as the  tenant  and\trent
\nreceipts were issued in her name. Before the Trial Court  it
\nwas  sought  to be contended that the second  appellant\t had
\nbecome the tenant after the demise of his father and as such
\nthe  notice  of termination of tenancy issued to  the  first
\nappellant was not an effective and valid notice. The conten-
\ntion  was repelled by the Trial Court and that\tfinding\t has
\nnot been challenged before the Appellate Court and the\tHigh
\nCourt.\n<\/p>\n
    As already stated Babu Lal the Karta of the family\tdied
\non  14.11.73. Consequent on his death the respondent  herein
\nbecame\tthe  Karta  of the family as the  senior  most\tmale
\nmember of the joint family. The respondent issued notice  on
\n12.6.74 terminating the tenancy with effect from 30.6.74 and
\ncalled\tupon the first appellant to surrender possession  of
\nthe leased shop from 1.7.74. It was the case of the respond-
\nent  that the first appellant had committed default in\tpay-
\nment of rent from November 1973 onwards and furthermore\t the
\nleased\tportion\t was  required for expansion  of  the  joint
\nfamily\tbusiness  carried  on in the other  portion  of\t the
\nbuilding.  As the appellants failed to deliver possession  a
\nsuit  for  eviction  was filed\tunder  the  Bihar  Buildings
\n(Lease, Rent and Eviction) Control Act (hereinafter referred
\nto  as\tthe  ‘Act’) for a decree for  eviction\tagainst\t the
\nappellants. A sum of Rs.540 was also claimed in the suit  as
\narrears of rent.\n<\/p>\n
    The\t appellants contested the suit raising\tvarious\t de-
\nfences. The principal defences were that the respondent\t was
\nnot  the Karta of the family and one Ram Prakash Gupta,\t the
\neldest son of deceased Babu Lal was the Karta, that rent was
\ntendered to him after the death of Babu Lal but the said Ram
\nPrakash Gupta demanded rent at Rs. 150 per month refused  to
\nreceive the rent that was tendered, that thereupon the\trent
\nwas sent by money order but it was refused and as such
\n537<\/span>
\nthere was to default in payment of rent. It was alternative-
\nly contended that even if there had been default in  payment
\nof  rent it would not afford a cause of action\tfor  seeking
\neviction because the original rent of Rs. 16 had been  ille-
\ngally  raised  to Rs.60 per month in  contravention  of\t the
\nterms of the Act, that as such the appellants were  entitled
\nto  seek  adjustment  of the excess payments  made  by\tthem
\ntowards\t the alleged arrears of rent and consequently  there
\ncan  be no arrears of rent under law. In so far as  the\t re-
\nquirement of the shop for the business needs of the respond-
\nent  is\t concerned it was contended that it was not  a\tbona
\nfide claim but only a make-believe story in order to get the
\nappellants evicted.\n<\/p>\n
    The\t Trial Court, after a detailed consideration of\t the
\noral  and documentary evidence adduced by the parties,\theld
\nthat  the  appellants had neither tendered the rent  to\t Ram
\nPrakash Gupta nor had the latter refused to receive it, that
\nin  the absence of a refusal to receive rent the  appellants
\nwere  not entitled under the Act to make remittances of\t the
\nrent  by money order, that in any event the payment of\trent
\nto a junior member of the family instead of to the Karta was
\nnot  a\tvalid payment and that as such\tthe  appellants\t had
\ncommitted  default in payment of rent and  were,  therefore,
\nliable\tto  be evicted. On the other ground also  the  Trial
\nCourt held that the leased portion was bona fide required by
\nthe  Karta for the gainful engagement of two members of\t the
\njoint  family  who  were unemployed and that  was  a  second
\nground\tfor ordering eviction. Accordingly the\tTrial  Court
\ndecreed the suit for eviction.\n<\/p>\n
    On\tthe appellants preferring an appeal,  the  Appellate
\nCourt reversed the findings of the Trial Court and dismissed
\nthe suit for eviction. The Appellate Court held that even if
\nthe  appellants\t had failed to pay the rent  from,  November
\n1973 onwards the appellants cannot be deemed to have commit-
\nted  default in payment of rent because the  enhancement  of
\nrent from Rs. 16 to Rs.60 was in contravention of the provi-
\nsions of the Act and as such the appellants were entitled to
\nhave the excess payments adjusted towards arrears of rent as
\nwell  as  future payments of rent. The ground of  bona\tfide
\nrequirement was also not accepted by the Appellate Court.
\n    Against the judgment of the Appellate Court the respond-
\nent  herein preferred a second appeal to the High Court.  As
\nthere  was a conflict of decisions of different\t Benches  of
\nthe  High Court on the question whether tenants paying\trent
\nin  excess of the agreed rent would be affected by the\trule
\nof “in pari delicto” and cannot, there-\n<\/p>\n
538<\/span><\/p>\n
fore, seek adjustment of the excess payments towards arrears
\nof rent to resist a suit for eviction for default in payment
\nof rent, the second appeal was referred to a Full Bench. The
\nFull  Bench, after elaborately considering the\tmatter\theld
\nthat  the rule of “in pari delicto” would squarely apply  to
\ntenants who pay enhanced rents in contravention of the terms
\nof  the Rent Restriction Acts and hence the  appellants\t are
\nguilty\tof pari delicto and cannot, therefore, seek  adjust-
\nment of the excess payments made by them and seek  avoidance
\nof  their eviction for default in paying the rent. The\tFull
\nBench  further held that the finding of the Appellate  Court
\non  the question of the landlord’s bona fide requirement  of
\nthe leased premises was vitiated on account of misreading of
\nfacts and misapplication of law and hence the Trial  Court’s
\nfinding\t warranted restoration. The Full  Bench,  therefore,
\nallowed\t the  appeal  and restored the\tdecree\tof  eviction
\npassed by the Trial Court on both the grounds set out in the
\nplaint.\n<\/p>\n
     Mr. Javali, learned counsel for the appellants  strenu-
\nously  contended  that the High Court was not  justified  in
\nallowing  the  second appeal since the\tappellants  had\t not
\ncommitted  any\tdefault in payment of rent  and\t furthermore
\neven  if there was any default, due to their erroneous\tten-
\nder,  they  were entitled to seek adjustment of\t the  excess
\npayments  made by them and avoid eviction. It was also\tsub-
\nmitted\tthat  the appellants, being in\tthe  disadvantageous
\nposition of tenants, cannot be placed on par with the  land-
\nlord and held that they are “in pan delicto” and cannot seek
\nadjustment  of the excess payments towards arrears of  rent.
\nThe further submission was that the respondent’s requirement
\nof  the\t shop for the business needs of the members  of\t the
\njoint family was not established either by the pleadings  or
\nthe  evidence and as such the Appellate Court was  perfectly
\nin  order in rejecting the second ground on  which  eviction
\nwas  sought for and the High Court had erred in\t interfering
\nwith a finding of fact in a second appeal.\n<\/p>\n
    In\tthe view we propose taking of the matter we  do\t not
\nthink  it  necessary  to go into the  question\twhether\t the
\nappellants  had\t committed default in payment  of  rent\t and
\nsecondly even if they had committed default, they are  enti-
\ntled  to adjust the excess rent paid by them over a span  of
\n30 years without reference to the rule of “in pari delicto”.
\nThe reason for our refraining to go into these questions  is
\nbecause\t we find the decree for eviction passed against\t the
\nappellants  can be sustained on the second ground viz.\tbona
\nfide  requirement of the shop for the business\trequirements
\nof  the\t members of the joint family. Even so  we  think  it
\nnecessary to point out an error contained in the argument of
\nMr. Javali. The learned counsel submitted that the
\n539<\/span>
\ndecision  of  the  High Court on the question  of  “in\tpari
\ndelicto”  may not be good law in view of recent decision  of
\nthis Court in Mohd. Salimuddin v. Misri Lal & Anr.,<\/a> [1986] 2
\nSCC  378.  It  is true that the case related  to  a  dispute
\nregarding default in payment of rent between a landlord\t and
\na tenant and this Court held that it will be a judicial\t sin
\nto  treat  the landlord and tenant on a par  and  apply\t the
\ndoctrine of pari delicto because the parties were placed  in
\nthe  position  of “oppressor” and “oppressed”.\tThe  learned
\ncounsel\t has  failed to notice that the facts in  that\tcase
\nwere  entirely different. It was a case where a\t tenant\t was
\nobliged\t to  advance a loan of Rs.2,000 to the\tlandlord  in
\norder  to  secure  the lease of a  premises.  The  agreement
\nbetween\t the  parties specifically provided  that  the\tloan
\namount was to be adjusted against the rent which accrued. In
\nspite of it the landlord sought the tenant’s eviction on the
\nground\tof  arrears of rent and set up a plea  of  “in\tpari
\ndelicto”  against the tenant. It was in\t such  circumstances
\nthis Court held that the doctrine of pari delicto cannot  be
\napplied since the tenant was perforce compelled to advance a
\nloan  to  secure the lease even though such  advancement  of
\nloan  was  against the terms of the Rent  Act.\tThe  learned
\nJudges have taken care to set out that the doctrine will not
\nbe  attracted  when  there is no element  of  compulsion  or
\nexploitation and both parties have by consensus\t contravened
\nthe  provisions\t of law for their  mutual  advantage.  They,
\nhowever, found that the tenant concerned in that case was  a
\nvictim of exploitation and hence he was not “in pari  delic-
\nto”. The relevant portion of the judgment reads as follows:-\n<\/p>\n
\t      “The  doctrine is attracted only when none  of
\n\t      the  parties is a victim of such\texploitation
\n\t      and both parties have voluntarily and by their
\n\t      free  will joined hands to flout the  law\t for
\n\t      their mutual gain. Such being the position the
\n\t      said doctrine embodying the rule that a  party
\n\t      to  a  transaction prohibited  by\t law  cannot
\n\t      enforce  his  claim in a court of law  is\t not
\n\t      attracted in a situation like the present.”<\/p><\/blockquote>\n
    Coming  now to the ground of eviction based on the\tbona
\nfide  requirement of the respondent, Mr. Javali argued\tthat
\nthe bona fides of the claim is not established either by the
\npleadings or the evidence and hence the Trial Court and\t the
\nHigh  Court were in error in sustaining the said  ground  of
\neviction.  It  was pointed out by the counsel  that  in\t the
\nplaint\tthere is only a casual statement about the  require-
\nment of the shop by the landlord and in the evidence it\t was
\nnot  made clear whether the shop was required for  expansion
\nof  the\t existing business or for starting  a  new  business
\nventure for the benefit of the younger members
\n540<\/span>
\nof the joint family. The Trial Court has discussed the\tcase
\nof bona fide requirement in para 14 of its judgment and\t has
\nheld  that the landlord is bonafide in need of the  shop  to
\nengage\ttwo  members of the joint family  in  business.\t The
\nAppellate Judge has reversed the finding of the Trial  Court
\non  four  grounds viz. that the tenants were  refugees\tfrom
\nWest  Pakistan and had no shop of their own in the  town  of
\nGaya,  that from the point of comparative hardship it  would
\nbe the tenants who would suffer more than the landlord by an
\nadverse\t decision, that the shop occupied by the  appellants
\nis only a small portion in a massive building in the occupa-
\ntion of the landlord and that the landlord’s requirement  of
\nthe  building was more attributable to a desire\t to  recover
\npossession  rather than on account of any genuine  need\t for
\nit. The High Court has pointed out that the Appellate  Judge
\nhad  completely misdirected himself in his approach  to\t the
\nquestion  because of erroneous assumptions of facts as\twell
\nas law. Admittedly, the tenancy had commenced in 1932  which
\nwas long prior to the partition in 1947 and hence there\t can
\nbe  no\tquestion  of the tenant being a\t refugee  from\tWest
\nPakistan. Likewise, the application of the test of  compara-
\ntive  hardship\tbetween the landlord and the tenant  was  an
\nextraneous test because no such test has been prescribed  by
\nthe  Act  for going into the reckoning. Then  again  it\t was
\nnoticed that without any evidence or materials the Appellate
\nJudge  has assumed that the main building in the  occupation
\nof  the\t joint\tfamily is a massive building  and  that\t the
\nleased portion constitutes only a negligible area.  Likewise
\nthe Appellate Judge had no materials to hold that the  land-
\nlord’s\trequirement  of the building was only borne  out  of
\ndesire\tand  not on account of any genuine need.  Since\t the
\nAppellate Judge had rendered his findings on the question of
\nbona  fide requirement of the shop by the landlord on  base-
\nless assumptions and wrong principles of law, the High Court
\nwas justified in setting aside the finding of the  Appellate
\nJudge  even though it was factual in character. It  is\ttrue
\nthat in a second appeal a finding on fact even if  erroneous
\nwill  generally not be disturbed but where it is found\tthat
\nthe finding is vitiated by application of wrong tests or  on
\nthe  basis of conjectures and assumptions then a High  Court
\nwill be well within its rights in setting aside in a  second
\nappeal\ta  patently  erroneous finding in  order  to  render
\njustice to the party affected by the erroneous finding.\t Mr.
\nJavali\ttried to canvass that the Appellate Judge  had\tren-
\ndered his finding mainly with reference to the pleadings and
\nthe evidence and his incidental references to other  factors
\nand circumstances were only to reinforce his conclusion\t and
\nas  such his finding does not suffer from any  infirmity  or
\nerror.\tWe  are not persuaded by this  argument\t because  it
\ncannot\tbe  predicated as to how far the  Appellate  Judge’s
\nconclusion
\n541<\/span>
\nwas  influenced\t by  the mistaken tests applied\t by  him  to
\ndetermine the issue.\n<\/p>\n
    We\tare, therefore, of the view that the finding of\t the
\nTrial  Court  which  has been confirmed by  the\t High  Court
\nregarding the respondent being bona fide in need of the shop
\nfor the business needs of the joint family does not call for
\nany interference by this Court in this appeal under  Article
\n136 of the Constitution.\n<\/p>\n
    In\tthe  result, the appeal fails and  will\t stand\tdis-
\nmissed.\t There will be no order as to costs. To\t enable\t the
\nappellants  to find alternate accommodation to\tshift  their
\nbusiness  they\tare given time till 30.6.87  to\t vacate\t the
\npremises.\n<\/p>\n
S.R.\t\t\t\t\t\tAppeal\tdis-\nmissed.\n542<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Budhwanti And Anr vs Gulab Chand Prasad on 4 March, 1987 Equivalent citations: 1987 AIR 1484, 1987 SCR (2) 534 Author: S Natrajan Bench: Natrajan, S. (J) PETITIONER: BUDHWANTI AND ANR. Vs. RESPONDENT: GULAB CHAND PRASAD DATE OF JUDGMENT04\/03\/1987 BENCH: NATRAJAN, S. (J) BENCH: NATRAJAN, S. (J) MUKHARJI, SABYASACHI (J) CITATION: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-90016","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBudhwanti And Anr vs Gulab Chand Prasad on 4 March, 1987 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/budhwanti-and-anr-vs-gulab-chand-prasad-on-4-march-1987\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Budhwanti And Anr vs Gulab Chand Prasad on 4 March, 1987 - 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