SHARMA, J. - (1.) THIS is an application by the plaintiff to revise the decree of the learned District Judge, Alwar in appeal by which the decree of the court of first instance was set aside. The plaintiff applicant filed a suit in the court of the Munsif, Alwar for the recovery of a sum of Rs. 202/- against Bhuralal defendant, since dead, and Narhari opposite party on the ground that a sum of Rs. 300/- was deposited on behalf of Deepa with Bhuralal for the expenses of a revenue appeal out of which Rs. 100/- had been taken back by Deepa and a sum of Rs. 200/- remained deposited with Bhuralal. Afterwards Deepa wanted this sum back and the plaintiff, therefore, approached the defendant with a request to return the said sum. The amount was not returned and the opposite party Narhari promising to pay it back executed a bond in favour of the plaintiff. Sometime after, however, this bond was taken back by the opposite party and his post office saving account pass-book was deposited with the plaintiff and a withdrawal form was also handed over to him. The money, however, could not be withdrawn from the post office as the time on that day was over and the opposite party took away the withdrawal from leaving the pass book with plaintiff. The money was subsequently demanded but the defendants did not pay it back. Hence the plaintiff claimed recovery of Rs. 202/- from the two defendants Bhauralal and Narhari. Both the defendants filed separate written statements and it was denied that Rs. 300/- were deposited as alleged by the plaintiff or Rs. 200/- remained deposited after the payment of Rs. 100/ -. The opposite party who was defendant No. 2 pleaded that he never deposited his pass-book or handed over a withdrawal form to the plaintiff but averred that his pass-book was lost about which he made a report to the Superintendent Post Office, and got a duplicate pass book. He admitted the execution of a bond of Rs. 200/- in favour of the plaintiff but pleaded that it was because the plaintiff had promised to advance Rs. 200/- to the opposite party but when the plaintiff was unable to advance the money, the bond was taken back from him.
(2.) BEFORE the suit was decided by the first Court, the first defendant Bhuralal died and the case proceeded only against the opposite party defendant No. 2 in this case. The learned Munsif gave a decree for Rs. 200/-against the opposite party. The opposite party went in appeal to the Court of the District Judge, Alwar, who has, relying upon the evidence of one of the plaintiff's witnesses, Lalita Prasad, held that the money which is said to have been deposited with the defendants was for the purpose of payment of bribe in the revenue appeal and therefore, the consideration was unlawful. He has consequently dismissed the suit. He has not held in so many words that the money which was deposited, was in fact deposited, with the defendants or that if it was deposited it was paid as bribe in the revenue appeal. In this revision, it has been argued by Mr. Sagarlal on behalf of the applicant that it was no case of the defendants that the consideration of the agreement was unlawful and no issue was consequently framed on this point, and no evidence produced. The lower appellate court was therefore, unjustified in dismissing the plaintiff's suit on the ground which was neither the subject matter of an issue nor any evidence was produced by the parties. He also argued that the lower appellate court ought not have decided the appeal on a point which was not covered by the memorandum of appeal without giving notice to the applicant that such a point would be taken into consideration. At the time of reply however, Mr. Sagarlal withdrew this last objection. On behalf of the opposite party, it was argued by Mr. J. P. Jain that although no issue was framed on the point of unlawfulness of consideration yet, when in transpired from the plaintiff's own evidence that the consideration was unlawful, the lower appellate court was perfectly justified in taking that point into consideration and dismissing the suit on the ground on which it has been done. He also argued that although the lower appellate court has not found in so many words that the money which was deposited with the defendants was actually paid as a bribe and nothing remained with the defendants out of it, it should de taken to have been impliedly found by the lower appellate court because it has quoted the particular statement of Lalta Prasad wherein he has said that the plaintiff had himself admitted before him that the money deposited with the defendants was paid to the persons for whom it was meant and that result of appeal in favour of Deepa had been assured. Mr. Sagarlal relied on the cases of Firm of Attar Singh Ajab Singh vs. Haku and others (1) (A. I. R. 1914 Lahore, 353.) and Balkaran Singh and others vs. Mst. Dulari and others (2) (A. I. R. 1927 Alld, 231.), in support of his argument that the lower appellate court ought not to have entertained the points which had not been alleged in the pleadings and made the subject of an issue and of arguments and of decision by the trial court. Mr. Jain relied on the cases of Atikulla and others vs. Habiulla (3) (A. I. R. 1920 Cal. 704.), Alice Mary Hill vs. William Clarke (4) (I. L. R. 27 Alld, 267.), Bigos vs. Bousted (5) (L. R. 92 (1) 1951.), and Napiey vs. National Business Agency, Ltd. , in order to show that even if there be no issue or finding of the first court, the appellate court cannot ignore the question of unlawfulness of consideration if it is proved from the evidence on record. I have considered the arguments of both the learned counsel. The learned District Judge has certainly given no express finding that the money which is alleged to have been deposited with the defendants was paid to the persons for whom it was meant. He has embodied certain portion of the evidence if Lata Prasad, one of the plaintiff's witnesses, from which it appears that the plaintiff himself had admitted before the first court that the money which was deposited on behalf of Deepa with the defendants was paid to the persons for whom is was meant and that the result of the appeal had been assured. The learned Dist. Judge says that there was no reason to disbelieve the statement of Lalta Prasad on this point. From this it is implied that the learned District Judge was of the view that the money which was deposited with the defendants had been paid to those for whom it was meant. On this finding alone therefore, the suit could have been dismissed because there was nothing with the defendants for which they could enter into an agreement to pay. Without further going into the matter therefore, I am of opinion that the suit was rightly dismissed. However, as the point of unlawfulness of consideration has been discussed in the learned District Judge's judgment and arguments have been advanced before me on behalf of both the parties I may as well take this aspect of the matter into account. No doubt the defendants were not bold enough to raise the point of unlawfulness of consideration in the first court and consequently no issue was framed thereon. Unfortunately, for the plaintiff, however, his own witness Lalta Prasad admitted before the court that the plaintiff himself had admitted before him that the money which had been deposited with the defendants had been paid to the persons for whom it was meant and the result of the appeal had been assured. From this it was quite clear that the money which was deposited with the defendants was for the unlawful purpose of paying illegal gratification for the purpose of ensuring the result of appeal in Deepa's favour. If that money was paid as I have found above, the matter ends. If it was not paid and remained with, the defendants then the plaintiff could not ask the assistance of courts to recover it. No doubt in the case of Firm Attar Singh Ajab Singh vs. Haku and others (1) (AIR 1914 Lah. , 353,), Shadi Lal J. set aside the decree of the lower appellate court dismissing the plaintiff's suit on the ground of unlawfulness of consideration no issue was framed on this point in the first court but the facts of that case were quite different. There were seven defendants out of whom none pleaded that the money was borrowed for giving bribe and that the plaintiff knew of it and that the bribe was given. The Munsif passed a decree defending the amount which each defendant was directed to pay to the plaintiff. Five defendants who filed one appeal in the District Court did not raise the question of bribe in their memorandum of appeal while one defendant did not appeal at all and only the seventh defendant contended inter alia that the money was borrowed for giving bribe. The learned Judge says "the five defendants who had preferred a joint appeal still adhere to what they said in the court of first instance and repudiate the contention of bribe. On these facts the learned Judge held that the District Judge should not have decided the case on a point which had not been raised in the pleas and on which no enquiry has been made. He however observed that there was authority for the view that a plaintiff could not get a decree for money lent for the express purpose of accomplishing and illegal object when the money had been used for that purpose. In the case of Bal Karan Singh and others vs. Mst. Dulari Bai and others (2) (AIR 1927 All. 231.), the point was neither taken in the pleadings nor was it stated in the grounds of appeal clearly or directly. In the present case although objection was taken in the written statement about the unlawfulness of consideration yet it was clearly and directly raised in the memorandum of appeal before the lower appellate court. This ruling, therefore, to my mind does not clearly apply to the facts of the present case. Learned counsel for the opposite party has relied on the case of Allice Mary Hill vs. William Clarke (1) (ILR 27 All. 267.) in which it was held that - "when it is brought to the notice of a court that the consideration for a contract which it is asked to enforce is, in whole or in part, an unlawful consideration, such court is bound to give effect to the fact thus brought to its notice notwithstanding that the contract may appear upon the face of it to be a perfectly legal contract, and that the unlawfulness of the consideration therefore was never pleaded by the defendant!. " In that case a seemingly innocuous agreement was put forward on behalf of the plaintiff but it was found by the court that no objection was taken on behalf of the defendant that the consideration was unlawful. However, it was found from the record that the consideration for the agreement was past cohabitation and it was therefore held that consideration being unlawful, it could not be enforced. In the case of Atikulla and others vs. Habibulla (2) (AIR 1920 Cal. 704.) the illegality of the transaction of wakf was brought to the notice of the court. Though the defendant did not plead illegality and did not wish to raise the objection yet it was held that if the illegality of the transaction is brought to the notice of the court, the court will not assist the person invoking its aid, even though the defendant has not pleaded the illegality and does not wish to raise the objection. In the case of Napier vs. National Business Agency, Ltd. also relied on by the learned counsel for the opposite party, the agreement put forward by the plaintiff was seemingly innocuous, yet it was found that the consideration was dismissed although no objection about the unlawfulness of consideration taken on behalf of the defendant. It was observed that it was no part of the defendant's case that the agreement was tainted, and therefore, the burden fell on the judge to carry out an investigation into the truth of this matter as best as he could without the assistance that he would naturally have had from the other party had this matter been made an issue in the action. In the present case, however, it was clear from the plaintiff's evidence himself which had been believed by the lower appellate court that the money was deposited for unlawful purpose of paying illegal gratification in revenue appeal. In the case of Bigos vs. Bousted (3) (LR 92 (1) 1951.) which has also been relied upon by the learned counsel for the opposite party, the suit was dismissed on the ground of unlawfulness of consideration and it was observed that - "if dishonest people pay money for a dishonest purpose, and then by good fortune thp offence which they designed to commit is not committed are they entitled in this court to come and ask for recovery of the money? In my opinion they are not. It would be a bad example if this court were to entertain action by a man for money dishonestly paid for the purpose of committing an offence against the criminal law and he were allowed to claim from the court an order that the money should be repaid. " I, therefore, perfectly agree with the lower appellate court that the consideration was altogether unlawful and that it could not be enforced through courts of law. The courts of law cannot shut eyes to the illegality of consideration when it was proved from the evidence of the plaintiff himself, even though no objection has been taken by the defendant and no issue is framed thereon. On both these grounds, I maintain the decree of the lower appellate court. The application for revision is dismissed but the conduct of the defendant is also not altogether free from blame and therefore, I disallow him costs throughout. .;