E V BALASUNDARA MUDALIAR Vs. KMAHOMED OOSMAN SAHIB

JUDGEMENT

(1.) As we have come to the conclusion that this case must he remanded and disposed afresh I desire to say as little about it as possible beyond what is necessary to indicate the grounds on which I dissent from the finding of the learned Judge which was that the agreement relied upon by the plaintiff is contrary to the public policy. It is a curious story and it shortly amounts to this: that the defendant who was a Mahomedan was engaged in litigation which, he hoped, would yield a large sum of money. He requested the plaintiff who was a Bhakta of the Cod Subramanya to do puja to the God and to pray for his success in the litigation and promised to remunerate him amply for so doing; and "amply" was afterwards crystallised into a sum of no less than Rs. 5,000. The defendant in fact effected a compromise of the suit in which he was engaged, for which he received no less a sum than Rs. 32,500. The plaintiff thereupon brings this suit for payment of the agreement of Rs. 5,000 for his services and puja.

(2.) Such an agreement presents many strange features to a sceptical mind, but I am unable to bring myself to hold that it is on the face of it illegal as pleaded. To my mind a man engaged in litigation believing himself to have a just cause may, without blame, pray himself to his God for success of the suit and, if he can pray without blame himself, 1 do not see anything wrong in his employing priest or a Bhakta to pray on his behalf for reward. On the other hand it is easy to see many ways in which such an agreement might be vitiated. I do not wish to indicate more precisely how it could be vitiated, because I do not wish to suggest defences which have not been raised or tried. It is enough to say that I do not think that this case is really covered by the authority of Bhagwan Dai; Shastri V/s. Raja Ram (1927) I.L.R. 49 A. 705 assuming that case to have been rightly decided, of which I am by no means confident. The defendant, I think, on our view of the case, ought to have an opportunity to apply to the Lower Court to amend his pleadings and we so direct. Costs of the appeal to abide the final result. Court-fee paid on appeal to be refunded.

(3.) Anantakrishna Aiyar, J.--The plaintiff (Balasundara Mudaliar) claimed a sum of Rs. 5,500 being the principal and interest due under an agreement (Ex. A) executed by the defendant (Mahomed Oosman Sahib) in favour of the plaintiff on 2nd January, 1925. The suit was dismissed by the learned Judge on the ground that the agreement sued on was unenforceable as being opposed to public policy (Issue 1). The suit was not tried on the merits; so, it has to be taken that everything that has been alleged in the plaint is true for the purposes of this appeal.