MATHAI ITTY Vs. THOMMAN CHACKO
LAWS(KER)-1962-11-35
HIGH COURT OF KERALA
Decided on November 28,1962

MATHAI ITTY Appellant
VERSUS
THOMMAN CHACKO Respondents

JUDGEMENT

- (1.) THIS second appeal is in a suit to enforce a clause in an agreement Ext. P-1, dated October 19,1952 , by which defendants 1 and 2 bound themselves to pay a sum of Rs. 293 to the first plaintiff who has assigned his right thereto in favour of the second plaintiff, who is the appellant. The suit was dismissed by the subordinate Judge on appeal. A preliminary objection was taken before me to the maintainability of the second appeal, by reason of S. 102 of the Civil Procedure code as it was in force at the time it was filed, the amount or the value of the subject matter being less than Rs. 500. The objection is tenable and has to prevail. However, at the request of counsel for the second plaintiff this appeal was heard as a Revision Petition.
(2.) THE questions that arise are, whether the object of ext. P-1 is unlawful or is opposed to public policy as being to stifle a criminal prosecution and whether, if that be so, the undertaking in Clause. 6, which is by defendants 1 and 2 who were the prosecutors in the criminal case, to pay the first plaintiff is unenforceable. Ext. P-1 was entered into as a result of mediation by the first plaintiff and others, between defendants 1 and 2 on the one part and 3rd defendant and the 2nd plaintiff on the other, by which they put an end to several cases, civil and criminal, pending between them. Clause. 1 to 3 related to the compromise of three civil cases. Clause. 4 which is material related to two criminal cases, in which the first defendant was the complainant and the 3rd defendant was one of the accused and it embodied an undertaking by the first defendant to file a petition in court stating that his witnesses had been won over by the accused, and that he is unable to adduce evidence, and a corresponding undertaking by the accused to file a statement agreeing that the petition may be allowed. In Clause. 6 on which the suit was based it was provided, that defendants 1 and 2 do pay Rs. 293 to the first plaintiff by way of expenses of litigation, as it was put. THE inference from Clause. 4 is irresistible, that the criminal cases referred to were non-compound-able. THE statement in the petition, that the witnesses were won over was to be made apparently before they were to be examined and by the petition the first defendant was to bind himself not to adduce any evidence. I fail to see what else could be the object of this provision in Ext. P-1, except to stifle the prosecutions in the two non-compoundable cases. THEre is unanimity of judicial opinion that where the offence is non-compoundable, an agreement made for compounding it as it were or for stifling the prosecution is contrary to public policy. Reliance was placed on Jagdish v. Mt, Kausilla Devi air. 1947 All. 317, for contending that an agreement not to proceed with the prosecution in a non-compoundable offence cannot always be regarded as illegal. On the facts it was held, that it was really a civil dispute between the parties and that the criminal proceedings were only subsidiary. For this reason the case is distinguishable. However, the bench also observed that "if A's promise was in substance one to give false information or to withhold information" (meaning also to withhold evidence) "or commit perjury so as to hamper the administration of justice, it would doubtless be an unlawful promise and any contract which A was seeking to enforce would be unenforceable. " These observations do not support the plaintiffs. I do not agree with the argument, that the bench restricted the application of the principle to cases where there is "any suspicion of blackmail or extortion," for "a promise really to. hamper the administration of law so as to prevent investigation into a criminal charge which was of interest not only to the persons concerned but to the public at large" was also considered to be unenforceable. I am satisfied that Clause. 4 in Ext. P-1 embodied an agreement not to adduce evidence, which is hit by S. 23 of the contract Act. Clause. 4 of Ext. P-1 which related to the two criminal cases, must be held to be an integral part of it without which it is inconceivable that it would ever have been reached. In other words, Clause. 4 is not severable from the other clauses in Ext. P-1. It is clear law that if an agreement is illegal under S. 23 of the Indian Contract Act as to one clause it is illegal as to the others which are not severable. See Lound v. Grimwada (1888) XXXIX Ch. D. 605 at p. 613, Premji Damodar v. Firm L. V. Govindji and co. AIR. 1943 Sind 197. The payment to be made to the first plaintiff under Clause. 6 is for implementing the several provisions in ext. P-1 and is therefore inextricably connected with Clause. 4. But the point most strongly pressed and which appeared to me to be plausible was, that the payment under Clause. 6 was to be made by defendants 1 and 2, of whom defendant 1 was the prosecutor in the criminal case, and so, the payment divorced from everything else, cannot bo to stifle the prosecution. On further consideration, i feel that the question has to be viewed from another angle. Under S. 23 the object of an agreement is unlawful, if the Court regards it as opposed to public policy, and every agreement of which the object is unlawful is void. It is therefore plain that Ext. P-1 is void. It must follow, that no clause in ext. P-1 inseparably connected with the illegality, can be enforced. The following passage from Chitty on Contracts, 20th Edition, pages 469 and 470, might be usefully quoted: "as the benefit of the public, and not the advantage of the defendant, is the principle upon which a contract may be impeached on account of illegality, this objection may be taken by either of the parties to such contract. 'the objection" said Lord Mansfield in Holman v. Johnson (1775),1 Cowp. 341, 343, 'that a contract is immoral or illegal as between plaintiff and defendant sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded on general principles of policy, which the defendant has the advantage of contrary to the real justice as between him and the plaintiff, by accident, if I may say so. . . . No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If from the plaintiff's own stating or otherwise the cause of action appears to arise ex turpi cause. . . , then the Court says he has no right to be assisted. It is upon this ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant were to bring his action against the plaintiff the latter would then have the advantage of it: for where both are equally in fault, potior es, conditio defendentis. " The point is not so vital or so important that, as a result of Clause. 6, the liability was that of defendant 1 also to make payment, for on the above principle, the Court will not lend its aid to the plaintiffs who found their cause of action on Ext. P-1, which has to be considered to be void. In the above view, the Subordinate Judge was right in holding that the plaintiffs are not entitled to any relief. The appeal fails and is dismissed with costs. Dismissed.;


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