M UHAM M AD FAHEEM W ALI J. Petitioner is aggrieved of the Judgment & Decree 31.10.2017 passed by learned Additional District Judge-V, D.I.Khan, whereby the appeal of respondent was allowed, the Judgment & Decree dated 10.04.2017 of the learned Trial Court was set aside, and consequently, the suit filed by petitioner stood dismissed.
2. Facts of the case, in brief, are that the petitioner instituted a suit for recovery of Rs. 4,85,700/- against respondent, on the ground that respondent manipulated her for giving government job and in this regard he demanded a sum of Rs.4,85,700/- which she deposited in his account, through various deposit slips during 30.04.2012 to 21.11.2012. Thereafter, respondent did not honour his promise by giving government job to petitioner, therefore, she filed suit for the recovery of amount so deposited by her in the account of respondent. Respondent, then defendant, filed his written statement wherein he claimed that he has his own amount in his bank account. The suit was processed in accordance with the procedure and finally, after hearing arguments, the learned trial court decreed the suit of petitioner. However, in appeal by the respondent, the learned Additional District Judge-V D.I.Khan vide Judgment dated 31.10.2017 allowed the appeal, set aside the Judgment & Decree of learned trial court and thereby dismissed the suit of petitioner, hence, the instant Civil Revision by petitioner.
3. Arguments of the learned counsel for parties heard and record gone through with their valuable assistance but for the sake of brevity, without reproducing the arguments of the counsels, same will be adequately dealt with at appropriate stages in this judgment.
4. It is evident from the perusal of record that the petitioner seeks recovery of the amount deposited by her in the bank account of respondent pursuant to a promise of respondent to facilitate her in getting employment in a government department. In this context she produced deposit receipts of the Bank as Ex.P.W.2/1 to Ex.P.W.2/20 which reflect deposit of total amount of Rs.4,85,700/-. Each receipt reflects deposit of amount in the account, admittedly maintained by the respondent, and bear the name of petitioner as its depositor. Original deposit receipts are in the possession of petitioner and the official of the concerned bank too acknowledged the credit of amount in the bank account of respondent through the said deposit receipts. The main emphasis of learned appellate Court below in dismissing the suit of petitioner was Section 23 of the Contract Act, 1872, by holding that the object of agreement/promise being unlawful, it was a void contract and therefore, the same cannot be enforced, and as such, prohibits to recover back the amount given under an illegal contract.
5. A bare reading of the plaint reveals that the petitioner did not step in the court for the enforcement of contract rather she sought recovery of the amount that she had paid to respondent through bank deposit slips Ex.P.W.2/1 to 2/20. The promise/contract between parties, though not admitted by respondent, was for the provision of government job and thus was against the public policy and as such same was clearly hit by the provision of Section 23 of the Contract Act. If the object of a contract is unlawful or forbidden by law, then such a contract becomes void; and Section 65, therefore, applies to cases where benefit or advantage is derived under an agreement which is later-on discovered to be void. The Section 65 of Contract Act, is in these terms:
65. Obligation of person who has received advantage under void agreement or contract that becomes void. When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it to the person from whom he received it.
6. This section applies to a case where an agreement is entered into between the parties under which benefit is received by one party & after the benefit is so received the agreement is discovered to be void. It is then that the party who has received the advantage is compelled to restore the advantage so received. Section 65 embodies and is an expression of the principle of restitution & of prevention of unjust enrichment. The crucial questions to be determined are: (a)
Was there an agreement between the parties? (b) Was advantage received under the agreement?
(c) Was the agreement discovered to be void after advantage was received?
7. The evidence on record makes it clear that there was an oral agreement/promise between parties and under the said promise, the petitioner was motivated to deposit the amount in the bank account of respondent, which she did. Later-on respondent backed-out from promise which paved her way to file suit for recovery of the amount. Proof of payment in shape of bank receipts by petitioner could not be rebutted by respondent. An agreement void ab initio can also be an agreement "discovered" to be void under Section 65 of Contract Act. Hence, answers to all the supra questions are in affirmative, and as such, the suit of petitioner cannot be dismissed under the provisions of Section 23 of the Contract Act, rather in such an eventually, provisions of Section 65 of the Act come forward to aid the petitioner's claim.
8. Even otherwise, if it is presumed that there was no agreement or promise between parties for any government job, even then the deposit of amount in the account of respondent has been proved through the bank record. In these circumstances provision of Section 70 of the Contract Act apply to the situation which provides:
70. Obligation of person enjoying benefit of non-gratuitous act.-Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.
9. Hence, one can invoke aid of section 70 if these elements are existed i.e. (a) The delivery must have been lawfully made (b) The person, who delivers the goods must intend not to do so gratuitously (c) The person who receives the goods must enjoy the benefit thereof. If these three elements are satisfied the person who receives delivery of the goods is bound to make compensation. Rationale in the mind of petitioner to deposit the amount in the account of respondent was to get benefit of government job; thus the deposit of amount in the bank account of respondent by petitioner was not a gratuitous act. On this score too, the petitioner becomes entitled to get back the amount from respondent.
10. In view of the above quoted reasons, the learned appellate Court erred in law by relying upon the provisions of Section 23 of the Contract Act, 1872, and thereby failed to realize the fact that the suit was not for the enforcement of void contract but was for the purpose of return of benefit so received by respondent under the garb of void contract. Even otherwise, un-rebuttable evidence is available to establish that the amount was deposited with a reason to obtained an object which was later-on proved to be unlawful.
11. The nutshell of above discussion is that the petitioner successfully proved her case on the basis of law as well as facts; accordingly, instant civil revision is allowed, impugned Judgment & decree dated 31.10.2017 of the learned trial court stands set aside, and consequently, the Judgment & Decree of learned trial court whereby suit of petitioner was decreed, stands restored. Parties are left to bear their own cost.