1954 Present: Pulle J. and Swan J.

D. J. H. VITHARNE, Appellant, and W. E. DE ZYLVA, Respondent

S. C. 411-D. C. Negombo, 15,657

Rent Restriction Act, No. 29 of 1948-Premium paid as condition of grant of tenancy-o Right of tenant to recover it-Illegal contract-Sections 8, 15, 23.

No claim can be grounded on an illegal contract. A tenant, therefore, is precluded from recovering from the landlord any premium paid by him in contravention of section 8 of the Rent Restriction Act as a condition of the grant of the tenancy.

APPEAL from a judgment of the District Court, Negombo.

N. E. Weerasooria, Q.C., with H. A. Koattegoda, for the defendant appellant.

N. M. de Silva, with E. A. G. de Silva, for the plaintiff respondent.

Cur. adv. vult.

July 19,1954. PULLE J.-

The defendant who is the appellant in this case was the owner of premises No. 316, Main Street, Negombo. On the 16th January, 1950, the defendant by an informal writing agreed to let these premises to the plaintiff at a rental of Rs. 60 a month. The third clause of the writing stated:

" The said party of the second part has paid as an advance unto the said party of the first part a sum of Rs. 60 being rent due for one month this day and the party of the first part received the same. "

The plaintiff sued for the recovery of Rs. 1,934-10 on the basis that he paid to the defendant at the time the informal writing was executed not the sum of Rs. 60 but Rs. 1,500. He claimed the balance amount of Rs. 434. 10 as damages for breach of agreement to hand over the premises. The defendant denied the receipt of any sum in excess of Rs. 60 but the learned District Judge preferred to accept the plaintiff's evidence and gave judgment in his favour for Rs. 1,500. The claim for damages was disallowed.

I am unable to extract from the evidence any reasons for disturbing the finding that the amount paid on the 16th January, 1950, was Rs. 1,500 and not Rs. 60. The only question that falls to be determined is whether the payment was obnoxious to the provisions contained in the Rent Restriction Act, No. 29 of 1948, and if so, whether the plaintiff is debarred from recovering the money.

The nature of the payment can be gathered from two documents. Paragraph 3 of the plaint stated:

" On the day on which the agreement referred to in paragraph 2 of the plaint was entered into the defendant wrongfully demanded and was paid by the plaintiff a sum of Rs. 1,500, being a sum which the defendant demanded before he would allow the plaintiff to occupy the premises to which the said agreement related. "

The letter of demand sent by plaintiff's Proctor described the amount as follows :

" This sum of Rs. 1,500, as you are aware, was paid to you by my client as consideration for your agreeing to give him on rent the premises owned by you. "

In my opinion the payment is one which is prohibited by section 8 (b) of the Rent Restriction Act. It is a premium paid by the plaintiff as. a condition of the grant of the tenancy. Both parties were, therefore, guilty of a contravention of section 8 which amounted to a criminal offence punishable under section 23. Prima facie a court would not lend its aid to relieve a person from the consequences of criminal acts committed by him. In regard to illegal contracts Wessels in the Law of Contract in South Africa says at p. 217, " It is one which the law forbids. The law is not indifferent to it. Not only does the law refuse to enforce it, but it refuses to help a party who has been the victim of such a contract. No claim can be grounded on an illegal contract. The court will have nothing to do with rights based directly or indirectly upon an illegal contract. "

It has been argued that this general rule should be relaxed in this case having regard to the class of persons the Act was intended to protect. Vide Jafferjee v. Subbiah Pillai [1 (1953) 54 N. L. R. 505 at p. 511.]. I am unable to accept