PANCHOO Vs. RAM SUNDER

JUDGEMENT

(1.) This is an application in revision under Section 25, Small Cause Courts Act. The applicants here were the defendants in the Court below. The suit was brought by the opposite parties, Ram Sunder and Kandhai, to recover a certain amount which, they alleged, they had lent to the defendants under two mortgage deeds, one dated 7 October 1918, and the other 12 September 1920. The case put forward by the plaintiffs was that when the two mortgage deeds were executed they were put in possession of two occupancy plots by the defendants and they continued to be in possession of those plots up till the year 1347 Fasli when their possession was forcibly ousted by the defendants. They alleged that when they were thus dispossessed they brought a suit to recover possession under Section 9, Specific Relief Act. That suit was dismissed on the ground that they were never in physical possession of the property within six months of the suit. In the course of that suit, it appears that one of the defendants made a statement to the effect that he had been paying rent of the plots in dispute to the plaintiffs. Upon the dismissal of that suit, the opposite parties launched the pre-sent suit out of which this application in revision arises. In this suit they simply claimed to recover the amount which they had lent to the defendants.

(2.) The suit was resisted by the defendants on various grounds: firstly, that the contract being void ab initio the plaintiffs were not entitled to recover anything upon such a contract; secondly, that the suit was barred by time and thirdly, that the money payable by the defendants had already been paid up and. hence there was nothing due to the plaintiffs. The learned Small Cause Court Judge found that the plea of payment raised by the defendants had not been established. He further found that though the plaintiffs were not entitled to any relief on the basis of the mortgage bonds because they were void ab initio, yet they were entitled to compensation under Section 65, Contract Act, which runs as follows: When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it to the person from whom he received it.

(3.) In support of this contention he has referred to several cases decided by various High Courts as against two eases of this Court in which, as he points out, no reference was made to Section 65, Contract Act. The learned Small Cause Court Judge has also repelled the defendants plea of limitation as a bar to the suit on the ground that the plaintiffs were in possession of the property covered by the mortgage up till the year 1347 Fasli; in the earlier suit under Section 9, Specific Relief Act, one of the defendants admitted the fact that he had paid rent for the lands in suit to the plaintiffs. The suit has accordingly been decreed; hence the present application in revision.