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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 917 of 1986.

From the Judgment and Order dated 5.9.1985 of the Patna High Court in Decree No. 300 of 1983.

S.K. Sinha for the Appellant.

P.P. Singh for the Respondents.

The Judgment of the Court was delivered by THAKKAR, J. One cannot conceive of a greater judicial sin than the sin of treating the 'oppressor' and the 'oppressed' on a par. Or that of rewarding the oppressor and punishing the oppressed whilst administering the law designed to protect the oppressed. We would be guilty of committing this sin if we uphold the view that the tenant who advances a loan to the landlord in order to secure the tenancy (in violation of the prohibition to do so embodied in the statute enacted for his benefit) is in pari delicto. And that the Court will not assist the tenant in claiming adjustment of the loan amount against the landlord's claim for rent.

The view taken by the High Court is unsustainable inasmuch as the High Court has lost sight of the fact that the parties to the contract were unequal. The tenant was acting under compulsion of circumstances and was obliged to succumb to the will of the landlord, who was in a dominating position.If the tenant had not agreed to advance the loan he would not have been able to secure the tenancy. It was the landlord who was in the position of an oppressor who wanted to exploit the situation obtaining in the context of the acute housing shortage which prevailed. The tenant had either to yield to the unlawful demand of the landlord or go without a roof, for, otherwise, the landlord would not have granted the lease. The relevant provision prohibiting the payment of rent in advance embodied in the Rent Act was enacted precisely to protect the tenant from such exploitation. Obviously, he had to succumb to such exploitation, the protective law notwithstanding, as he would have been obliged to remain roofless. The law extended the protection but did not guarantee the roof. To deny accecess to justice to a tenant who is obliged to yield to the unlawful demands of the landlord in this scenerio by invoking the doctrine of pari delicto is to add insult to injury, and to negate the very purpose of the provision designed for his protection. The doctrine of pari-delicto is not designed to reward the 'wrong-doer', or to penalize the 'wronged', by denying to the victim of exploitation access to justice. 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. The law enunciated by this Court in V.S. Rahi and Anr. v. Smt. Ram Chambeli [1984] 2 S.C.R. p.290, to which one of us (Venkataramiah, J) was a party fully buttresses this proposition. Says the Court speaking through Venkataramiah, J :-