1. The defendant is the appellant here against the judgment of reversal.
2. The suit by the plaintiffs-respondents was for a decree for eviction of the appellant from the suit premises fully described at the foot, of the plaint, and to Put the plaintiffs in vacant possession of the same, and a decree for realisation of arrears of rent amounting to Rs. 278 and for realisation of Rs. 105 on account of damages from 1-1-77 to 15-1-77 and further damages from 16-1-77 up to the date of realisation @ Rs. 7 per day.
3. The case of the plaintiffs in brief is that they constitute a joint Hindu Mitakshara family of which plaintiff 1 is the Karta and manager. The suit holding bearing No. 22 Circle No. 12 Ward No. 5 in Kadam Kuan in Patna town was purchased by the plaintiffs. The appellant is in possession of a portion of the aforesaid house as a tenant on the basis of a registered deed of lease, dated 3-9-1975 for a fixed term of three years according to English Calendar month starting from 1-1-1974 and expiring on 31-12-1976. The agreed rent for the leasehold portion was Rs. 200 per month amounting to a total of Rs. 7,200 for three years of the leasehold. Out of this amount the appellant paid Rs. 4,000 by way of advance and for the remaining balance of Rs. 3,200 it was stipulated that the same would be Paid at the rate of Rs. 89 per month by the end of the second day of every month and it was further stipulated that immediately after the expiry of the lease period i.e. 31-12-76 the defendant would deliver vacant possession of the leasehold Premises to plaintiff 1 without any objection. According to the further case of the plaintiffs-respondents the appellant has not Paid the rental for the months of October to December. 1976 @ Rs. 89 Per month in spite of repeated demands and has thus defaulted in payment of rent. On these grounds the plaintiffs have brought the suit for eviction. It may not be out of Place to mention here that the sheet-anchor of the plaintiff''s case is that the tenancy being a fixed term tenancy, it has already spent its force by efflux of time and, therefore, they are entitled to recover possession of the same.
4. Without going into any details the main point raised by the appellant was that the payment of advance rent was prohibited under the provisions of Bihar Buildings (Lease, Rent and Eviction) Control Act. 1947 and that, therefore, the contract of tenancy was against Public policy and hence void ab initio. The appellant, therefore, must be treated not as a fixed term tenant but as a tenant from month to month.
5. The trial court dismissed the suit. The lower Appellate Court has allowed the claim for eviction but has refused to grant a decree in respect of a part of the claim for the money fallen in arrears sought by the plaintiffs-respondents.
6. The defendant having appealed from the decree of the lower Appellate Court. the plaintiff-respondents have filed a cross-objection which, however, they did not press at the hearing of the appeal.
7. Mr. Guneshwar Prasad learned counsel for the appellant argued that since payment of money in advance for more than one month is prohibited under the provisions of the Act, the contract of tenancy should be treated as void as being opposed to public policy and the statutory provision. We. however, think that the contention is not tenable in law. The appellant being very much conscious of the illegal nature of the contract entered into it and therefore the doctrine of in pari delicto shall always come into play where both the parties knowingly enter into a contract which is against, public policy or the law. No party can be permitted to retract from the contract. If decisions be needed in this regard, a reference may be made to a Bench decision of this Court in the case of Jagannath Tewary v. Dr. Gopal Prasad (1983) BBCJ (HC) 1 : AIR 1983 Pat 501 wherein most of the case law on the subject has been reviewed and discussed.
8. But that is not the end of the matter. Even if the contract, with regard to the payment of advance money be held to be illegal as opposed to public policy and the law, that part may not be enforceable, as has been really held by the lower Appellate Court. That, fact, however, shall not make the contract of tenancy for a fixed period invalid. Tenancy for a fixed period is something alien to the mode of payment of the rental. And this is more fundamental. Once a tenancy for a fixed period is contracted to between the parties, the mode and manner of payment is not relevant for the purpose of determination of the tenancy at the end of the fixed term.
9. For the aforesaid reasons, this appeal is dismissed with costs throughout.
