Kandaswamy Gounden vs Narayanaswami Gounden

Phillips, J.—This is a suit upon a bond executed in favour of one Alangi Animal and it has been found that the consideration was future adulterous cohabitation. The consideration is obviously unlawful and, there ore, u/s 23 of the Indian Contract Act the agreement is void and cannot be enforced. The District Judge has, however, found that because defendant has benefited by the illegal and immoral contract inasmuch as the adulterous cohabitation has taken place, he cannot succeed in his p(sic)ea and has decreed the suit. He relied on Deivanayaga Padayachi Vs. Muthu Reddi and Others, , but that and other similar cases can be distinguished on the ground that the Court was not asked to enforce the immoral contract, but to set it aside after they had been carried out. So far from the defendants not being allowed to raise the contention that the contract is immoral it has repeatedly been laid down that when a Court finds a contract to be immoral or illegal it should decline to enforce it, even though defendants have not raised the plea. I need only refer to the judgment of Lord Mansfield in Holman v. Johnson (1775) 1 Cowp. 341 : 98 E.R. 1120, and to a recent case North-Western Salt Co. v. Electrolytic Alkali Company (1914) A.C. 461 : 83 L.J.K.B 530 : 110 L.T. 852 : 58 S.J. 338 : 30 T.L.R. 313. Objection is then taken that this Court cannot interfere u/s 115, Code of Civil Procedure, because no question of jurisdiction is involved. Reliance is placed on the observations of the Privy Council on the subject in Balakrishna Udayar v. Vasudeva Aiyar 40 Ind. Cas. 650 : (1917) M.W.N. 628 : 40 Ma. 793 : 15 A.L.J. 645 : 2 P.L.W. 101 : 1917 33 M.L.J. 19 : 1917 Cri.L.J. 143 : 1917 19 Bom. L.R. 715 : 6 L.W. 501 : 22 C.W.N. 50 : 11 Bur. L.T. 48 : 44 I.A. 261.

Here, however, the District Judge has not only failed to entertain the plea of illegality suo moto but has refused to allow defendant to raise it and has thus declined a jurisdiction which he undoubtedly possesses. He has clearly acted with material irregularity in the exercise of his jurisdiction within the meaning of Section 115, Code of Civil Procedure, and in support of my view I refer to Nandigam Gangayya Vs. Madupalli Venkataramayya and Others, , and Sundaram alias Mytheenbibi Vs. Mamsa Mavuthar, Sheikkasim Mavuthar, The petition is accordingly allowed and plaintiff''s suit dismissed with costs throughout.