ivil Appeal No 4110 of 1985
From the Judgment and Order dated 2251985 of the Patna High Court in Appeal from Appellate Decree No 51 of 1982
SS Javali B P
Singh and Ranjit Kumar for the Appel lants
SN Kacker MS Singh and KK Gupta for the Respondent
The Judgment of the Court was delivered by NATARAJAN J
This appeal by special leave by the ten ants is directed against the judgment of a Full Bench of the Patna High Court in a Second Appeal against Appellate Decree No 51 of 1982
By the impugned judgment the High Court allowed the appeal preferred by the landlord respondent herein and restored the order of eviction passed by the Trial Court against the appellants herein on grounds of default in payment of rent and bona fide requirement of the leased premises for the business needs of the landlord
The circumstances under which the suit came to be filed and the contentions of the parties may be summarised as below
One Babu Lal who died on 141173 and the respondent were 536 brothers and were members of a Joint Hindu Family governed by the Mitakshra Law
The joint family was the owner of a non residential building in the GB Road Gaya
One room in the said building was given on rent in the year 1932 to one Dr Ramachandra the husband of the first appellant and father of the second appellant for running a medical shop known as Punjab Dental and Opticals Works
The joint family has been running its business in the other portions of the building
The rent was fixed at Rs 16 per month
Over the years the rent came to be increased from Rs 16 to Rs60 per month
It would appear that the rent was increased to Rs20 in 1943 to Rs25 in 1946 to Rs30 in 1947 to Rs32 in 1951 to Rs35 in 1963 to Rs40 in 1967 to Rs50 in 1970 and finally to Rs60 in 1971
Dr Ramachandra the tenant died in or about 1960 and therefore his wife the first appellant came to be recognised as the tenant and rent receipts were issued in her name
Before the Trial Court it was sought to be contended that the second appellant had become the tenant after the demise of his father and as such the notice of termination of tenancy issued to the first appellant was not an effective and valid notice
The conten tion was repelled by the Trial Court and that finding has not been challenged before the Appellate Court and the High Court
As already stated Babu Lal the Karta of the family died on 141173
Consequent on his death the respondent herein became the Karta of the family as the senior most male member of the joint family
The respondent issued notice on 12674 terminating the tenancy with effect from 30674 and called upon the first appellant to surrender possession of the leased shop from 1774
It was the case of the respond ent that the first appellant had committed default in pay ment of rent from November 1973 onwards and furthermore the leased portion was required for expansion of the joint family business carried on in the other portion of the building
As the appellants failed to deliver possession a suit for eviction was filed under the Bihar Buildings Lease Rent and Eviction Control Act hereinafter referred to as the Act  for a decree for eviction against the appellants
A sum of Rs540 was also claimed in the suit as arrears of rent
The appellants contested the suit raising various de fences
The principal defences were that the respondent was not the Karta of the family and one Ram Prakash Gupta the eldest son of deceased Babu Lal was the Karta that rent was tendered to him after the death of Babu Lal but the said Ram Prakash Gupta demanded rent at Rs 150 per month refused to receive the rent that was tendered that thereupon the rent was sent by money order but it was refused and as such 537 there was to default in payment of rent
It was alternative ly contended that even if there had been default in payment of rent it would not afford a cause of action for seeking eviction because the original rent of Rs 16 had been ille gally raised to Rs60 per month in contravention of the terms of the Act that as such the appellants were entitled to seek adjustment of the excess payments made by them towards the alleged arrears of rent and consequently there can be no arrears of rent under law
In so far as the re quirement of the shop for the business needs of the respond ent is concerned it was contended that it was not a bona fide claim but only a make believe story in order to get the appellants evicted
The Trial Court after a detailed consideration of the oral and documentary evidence adduced by the parties held that the appellants had neither tendered the rent to Ram Prakash Gupta nor had the latter refused to receive it that in the absence of a refusal to receive rent the appellants were not entitled under the Act to make remittances of the rent by money order that in any event the payment of rent to a junior member of the family instead of to the Karta was not a valid payment and that as such the appellants had committed default in payment of rent and were therefore liable to be evicted
On the other ground also the Trial Court held that the leased portion was bona fide required by the Karta for the gainful engagement of two members of the joint family who were unemployed and that was a second ground for ordering eviction
Accordingly the Trial Court decreed the suit for eviction
On the appellants preferring an appeal the Appellate Court reversed the findings of the Trial Court and dismissed the suit for eviction
The Appellate Court held that even if the appellants had failed to pay the rent from November 1973 onwards the appellants cannot be deemed to have commit ted default in payment of rent because the enhancement of rent from Rs 16 to Rs60 was in contravention of the provi sions of the Act and as such the appellants were entitled to have the excess payments adjusted towards arrears of rent as well as future payments of rent
The ground of bona fide requirement was also not accepted by the Appellate Court
Against the judgment of the Appellate Court the respond ent herein preferred a second appeal to the High Court
As there was a conflict of decisions of different Benches of the High Court on the question whether tenants paying rent in excess of the agreed rent would be affected by the rule of in pari delicto and cannot there 538 fore seek adjustment of the excess payments towards arrears of rent to resist a suit for eviction for default in payment of rent the second appeal was referred to a Full Bench
The Full Bench after elaborately considering the matter held that the rule of in pari delicto would squarely apply to tenants who pay enhanced rents in contravention of the terms of the Rent Restriction Acts and hence the appellants are guilty of pari delicto and cannot therefore seek adjust ment of the excess payments made by them and seek avoidance of their eviction for default in paying the rent
The Full Bench further held that the finding of the Appellate Court on the question of the landlord s bona fide requirement of the leased premises was vitiated on account of misreading of facts and misapplication of law and hence the Trial Court s finding warranted restoration
The Full Bench therefore allowed the appeal and restored the decree of eviction passed by the Trial Court on both the grounds set out in the plaint
Mr Javali learned counsel for the appellants strenu ously contended that the High Court was not justified in allowing the second appeal since the appellants had not committed any default in payment of rent and furthermore even if there was any default due to their erroneous ten der they were entitled to seek adjustment of the excess payments made by them and avoid eviction
It was also sub mitted that the appellants being in the disadvantageous position of tenants cannot be placed on par with the land lord and held that they are in pan delicto and cannot seek adjustment of the excess payments towards arrears of rent
The further submission was that the respondent s requirement of the shop for the business needs of the members of the joint family was not established either by the pleadings or the evidence and as such the Appellate Court was perfectly in order in rejecting the second ground on which eviction was sought for and the High Court had erred in interfering with a finding of fact in a second appeal
In the view we propose taking of the matter we do not think it necessary to go into the question whether the appellants had committed default in payment of rent and secondly even if they had committed default they are enti tled to adjust the excess rent paid by them over a span of 30 years without reference to the rule of in pari delicto
The reason for our refraining to go into these questions is because we find the decree for eviction passed against the appellants can be sustained on the second ground viz bona fide requirement of the shop for the business requirements of the members of the joint family
Even so we think it necessary to point out an error contained in the argument of Mr Javali
The learned counsel submitted that the 539 decision of the High Court on the question of in pari delicto may not be good law in view of recent decision of this Court in Mohd Salimuddin vs Misri Lal  Anr  It is true that the case related to a dispute regarding default in payment of rent between a landlord and a tenant and this Court held that it will be a judicial sin to treat the landlord and tenant on a par and apply the doctrine of pari delicto because the parties were placed in the position of oppressor and oppressed
The learned counsel has failed to notice that the facts in that case were entirely different
It was a case where a tenant was obliged to advance a loan of Rs2000 to the landlord in order to secure the lease of a premises
The agreement between the parties specifically provided that the loan amount was to be adjusted against the rent which accrued
In spite of it the landlord sought the tenant s eviction on the ground of arrears of rent and set up a plea of in pari delicto against the tenant
It was in such circumstances this Court held that the doctrine of pari delicto cannot be applied since the tenant was perforce compelled to advance a loan to secure the lease even though such advancement of loan was against the terms of the Rent Act
The learned Judges have taken care to set out that the doctrine will not be attracted when there is no element of compulsion or exploitation and both parties have by consensus contravened the provisions of law for their mutual advantage
They however found that the tenant concerned in that case was a victim of exploitation and hence he was not in pari delic to
The relevant portion of the judgment reads as follows The doctrine is attracted only when none of the parties is a victim of such exploitation and both parties have voluntarily and by their free will joined hands to flout the law for their mutual gain
Such being the position the said doctrine embodying the rule that a party to a transaction prohibited by law cannot enforce his claim in a court of law is not attracted in a situation like the present Coming now to the ground of eviction based on the bona fide requirement of the respondent Mr Javali argued that the bona fides of the claim is not established either by the pleadings or the evidence and hence the Trial Court and the High Court were in error in sustaining the said ground of eviction
It was pointed out by the counsel that in the plaint there is only a casual statement about the require ment of the shop by the landlord and in the evidence it was not made clear whether the shop was required for expansion of the existing business or for starting a new business venture for the benefit of the younger members 540 of the joint family
The Trial Court has discussed the case of bona fide requirement in para 14 of its judgment and has held that the landlord is bonafide in need of the shop to engage two members of the joint family in business
The Appellate Judge has reversed the finding of the Trial Court on four grounds viz that the tenants were refugees from West Pakistan and had no shop of their own in the town of Gaya that from the point of comparative hardship it would be the tenants who would suffer more than the landlord by an adverse decision that the shop occupied by the appellants is only a small portion in a massive building in the occupa tion of the landlord and that the landlord s requirement of the building was more attributable to a desire to recover possession rather than on account of any genuine need for it
The High Court has pointed out that the Appellate Judge had completely misdirected himself in his approach to the question because of erroneous assumptions of facts as well as law
Admittedly the tenancy had commenced in 1932 which was long prior to the partition in 1947 and hence there can be no question of the tenant being a refugee from West Pakistan
Likewise the application of the test of compara tive hardship between the landlord and the tenant was an extraneous test because no such test has been prescribed by the Act for going into the reckoning
Then again it was noticed that without any evidence or materials the Appellate Judge has assumed that the main building in the occupation of the joint family is a massive building and that the leased portion constitutes only a negligible area
Likewise the Appellate Judge had no materials to hold that the land lord s requirement of the building was only borne out of desire and not on account of any genuine need
Since the Appellate Judge had rendered his findings on the question of bona fide requirement of the shop by the landlord on base less assumptions and wrong principles of law the High Court was justified in setting aside the finding of the Appellate Judge even though it was factual in character
It is true that in a second appeal a finding on fact even if erroneous will generally not be disturbed but where it is found that the finding is vitiated by application of wrong tests or on the basis of conjectures and assumptions then a High Court will be well within its rights in setting aside in a second appeal a patently erroneous finding in order to render justice to the party affected by the erroneous finding
Mr Javali tried to canvass that the Appellate Judge had ren dered his finding mainly with reference to the pleadings and the evidence and his incidental references to other factors and circumstances were only to reinforce his conclusion and as such his finding does not suffer from any infirmity or error
We are not persuaded by this argument because it cannot be predicated as to how far the Appellate Judge s conclusion 541 was influenced by the mistaken tests applied by him to determine the issue
We are therefore of the view that the finding of the Trial Court which has been confirmed by the High Court regarding the respondent being bona fide in need of the shop for the business needs of the joint family does not call for any interference by this Court in this appeal under Article 136 of the Constitution
In the result the appeal fails and will stand dis missed
There will be no order as to costs
To enable the appellants to find alternate accommodation to shift their business they are given time till 30687 to vacate the premises
SR Appeal dis missed


Summary:
The first appellant widow of one Dr Ramachandra a tenant since 1932 of one room used as a medical shop was recognised as tenant on the death of her husband in or about 1960 by Babu Lal the original landlord
The rent was fixed at Rs416 per month
Over the years the rent came to be increased from Rs16 to 60 per month ie both when Dr Ramachandra was alive and also later
Babulal died on 14111973 and the respondent became the Karta of the family as the senior most male member of the joint family
The respondent issued a notice on 1261974 terminating the tenancy with effect from 3061974 and called upon the first appellant wife to surrender possesssion of the leased shop from 1774
As the appellants wife and son of Dr Rama chandra failed tO deliver possession a salt for eviction was filed under the Bihar Buildings Lease Rent and Evic tion Control Act on two grounds a default of rent and b bonafide requirements of the junior members of the Joint family
The trial court allowed the eviction petition
In appeal the appellate court reversed the findings of the Trial Court and applying the principle of unjust enrichment contrary to statutory law held that the appellants were entitled to have the excess payment adjusted towards arrears of rent as well as future payments of rent since 1943
However in the Second Appeal the Full Bench of the Patna High Court held that the rule of in pari delicto would squarely apply to tenants who pay enhanced rents in contra vention of the terms of the Rent Restriction Acts and there fore the appellants cannot claim adjustment of excess rent paid and seek avoidance of their eviction
The High Court also reversed the finding of the appellate court on the question of bona 535 fide requirement as being vitiated by misreading of facts and misapplication of law
Hence the tenant s appeal by special leave
Dismissing the appeal the Court HELD 1
In Mohd Salimuddin vs Misrilal  Anr
   the Supreme Court have taken care to set out that the doctrine of in pari delicto will not be attracted when there is no element of compulsion or exploitation and both parties have by consensus contravened the provisions of law for their mutual advantage
539D E 2
It is true that in a second appeal a finding on fact even if erroneous will generally not be disturbed but where it is found that the finding is vitiated by application of wrong tests or on the basis of conjectures and assumptions then a High Court will be well within its rights in setting aside in a second appeal a patently erroneous finding in order to render justice to the party affected by the errone ous finding
540F G