Kidwai, J. - (1.) THIS appeal arises out of a suit instituted by the Appellant for ejectment of the Respondent from a portion of a house occupied by the latter in Chowk in the city of Lucknow. The Plaintiff alleged that the Defendant had committed wilful default in the payment of rent and that a valid notice had been given to her terminating the tenancy but she had not vacated the house. The Defendant disputed these allegations and also disputed the rent alleged. She further pleaded that the contract of tenancy was void because the Plaintiff had given the house to the Defendant for the immoral purpose of carrying on her business as a prostitute. Eventually the last objection was the only objection that was pressed. The trial Court found that the contract of tenancy was not illegal since the Plaintiff did not lease the house to the Defendant for the purpose of enabling her to carry on her business as a prostitute. It, therefore, decreed the suit for ejectment and for arrears of rent. There was an appeal.
(2.) THE lower appellate Court found that admittedly the Plaintiff knew that the Defendant was a 'tawaif' and that since he lived in the same locality he must be deemed to have knowledge that the Defendant was carrying on the profession of a prostitute as well as other professions that she might have as a dancer and a singer. It, held that the lease was against public policy under Section 23 of the Indian Contract Act and no suit can be based upon it. It, therefore, allowed the appeal and dismissed the suit. The Plaintiff has now come up in second appeal. His Learned Counsel has contended that the authorities lay down the proposition that it is only if the house is let to a prostitute for the purpose of carrying on her business as a prostitute in it that Section 23 of the Indian Contract Act will apply This is the law that has been laid down in Bani Muncharam v. Regina Stanger, I.L.R. 32 Bom. 581, Choga Lal v. Piyari, I.L.R. 31 All. 58, Kali Dassi v. Kanai Lal De : A.I.R. 1921 Cal. 486 and Mt. Mariam Begum v. Mt. Mungi, A.I.R. 1928 Sind 173. In each of those cases the premises have been let either for the purposes of keeping a brothel or for the purpose of carrying on the business of a prostitute. In the present case the lease was originally granted by one Mnrtaza Husain, the original landlord from whom the Plaintiff purchased the house. The Defendant was already occupying the house at the date of purchase. What had, therefore, to be proved was that Murtaza Husain let out the house for the purpose of enabling the Defendant to carry on the business of a prostitute. There is not even an allegation to that effect -much less is there any proof. Even if the fact is accepted that thereafter the Defendant did carry on the business of a prostitute, that would not make the lease void. In these circumstances it cannot be said that the lease in question offended against the provisions Section 23 of the Indian Contract Act.
(3.) THIS appeal is, therefore, allowed, the decree of the lower appellate court is set aside and the decree of the trial court is restored. The Appellant will get his costs from the Respondent.;