1. As we have come to the conclusion that this case must be remanded and disposed of 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 God Sri 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 crystallized into a sum of no leas 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 from the defendants in that suit than Rs. 32,500. The plaintiff thereupon brings this suit for payment of the agreed amount of rupees 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, I do not see anything wrong in his employing a 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.
3. It is enough to say that I do not think that this case is really covered by the authority of Bhagwan Dat v. Raja Ram : AIR1927All406 , 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 pleading and we so direct. Costs of the appeal to abide the final result. Court-fee paid on appeal to be refunded.
Ananthakrishna Aiyar, J.
4. The plaintiff, (Balasundara Mudaliar) claimed a sum of Rs. 5,550 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.
5. The plaintiff is a Hindu; whereas the defendant is a Musalman. The defendant claimed to be a partner in a Mahomedan firm and was about to file a suit to recover his share of the profits. Before doing so, in the month of August 1924, he requested the plaintiff who is described as a Bhakthan or Devotee of God Sri Subramanya, to do puja to Subramania Swamy for his success. The plaintiff did puja for 9 days and informed the defendant of the said Lord's command that the defendant would be successful in his proposed suit. The contemplated suit was filed on or about 26th September 1924 The defendant about the beginning of October 1921, again approached the plaintiff and asked him to offer further prayers and perform pujas in his name to God Subramania daily so that the God might be pleased and the defendant might be sure of his success in that suit. The plaintiff thereupon informed the defendant that it would be sufficient if prayers were offered and pujas performed to God Subramania daily both in the morning and evening, for a period of two mandalams or 80 days in his name, and that the plaintiff should be amply remunerated. The defendant agreed that he would amply remunerate the plaintiff for such services. In pursuance thereof the plaintiff performed pujas and offered prayers in the defendant's name daily both in the morning and evening to God Subramania for a period of 80 days beginning from 10th October 1924, till the end of December 1924,
praying for his Divine Blessings to the defendant and for the success of the defendant in his said suit, C.S. No. 612 of 1924.
6. The plaintiff further stated that on 2nd January 1925, the defendant in consideration of the services rendered to him by the plaintiff as aforesaid agreed to pay him a sum of Rs. 5,000 and executed and gave to the plaintiff a letter Ex. A. by which the defendant agreed to pay to the plaintiff the said sum of Rs. 5,000 if the Court should give a decree to the defendant herein, in the said suit for Rs. 50,000 or more. The defendant further undertook that, if he should settle his claim for any amount less than Rs. 50,000 then and in such event also the defendant was liable to pay the plaintiff the said sum of rupees 5,000 which sum should be a first charge on the amounts to be realized in the said suit C S. No. 612 of 1924. Suit No. 612 of 1924 was settled between the parties, the plaintiff therein (the defendant in the present suit) was to get Rs. 32,500; the defendant seems to have received the whole of the said amount in two instalments, and suit 612 of 1924 was withdrawn on 21st July 1925. The present suit was instituted on 29th November 1926.
7. In para. 12 of the written statement the defendant stated that the consideration mentioned in the agreement is not lawful and cannot support the promise to pay any amount to the plaintiff; and in para. 14, he urged that the alleged consideration:
being an invocation to a Hindu God Subramanya to unduly interfere with and prevent the course of justice, so as to bring success to one of the parties to a litigation is irreligious, illegal, immoral and opposed to public policy and cannot support the promise to pay.
8. The learned trial Judge dismissed the suit, holding that the agreement alleged by the plaintiff is opposed to public policy. This is what he said:
For the purpose of my decision I will assume that everything that has been alleged in the plaint is true. What, to my mind, it all amounts to is this, that the plaintiff extracted from the defendant a promise to pay him a certain sum of money by guaranteeing that his intercession with Subramnia Swami would secure a successful issue to his litigation. In other words, the consideration for the promise was an undertaking to ensure success by bringing come extraneous influence to bear on the mind of the Court, it seems to me dear than an agreement of this nature is opposed to public policy. The policy of the law no doubt is to enforce agreements as far as possible, but an agreement of this kind tends to affect the due administration of justice by bringing some extraneous influence to bear on the Court or on the opposite party. Apart from that, the consideration for it is a promise to do something which most sensible persons would regard as being outside the range of possibility. It is easy to see what undesirable consequences might ensue if promises of this nature were enforced. The plaintiff professed to have secured by his direct personal intervention a promise of success from the deity and assured the defendant that 80 days' puja would make that promise secure. That is, I think, something totally different from undertaking merely the prayer for success. What the parties intended was that the plaintiff should bring some extraneous influence to bear on the mind of the Court. I find the preliminary issue against the plaintiff and dismiss the suit.
9. The learned Judge relied on the decision of the Allahabad High Court Bhagwan Dat v. Raja Ram
10. On looking into the plaint, I find therein recital of the plaintiff having performed puja for 9 days in the month of August, and of the plaintiff having informed the defendant:
of the said Lord's command that the defendant would be successful in his intended suit.
11. The present suit, however, is based on the allegations that:
the defendant after filing his suit No. 612 of 1924 on 26th September 1924, requested the plaintiff in October 1924 to offer further prayers and perform puja to God Subramanya daily so that the God might be pleased and the defendant might Be sure of his success in the said suit that the plaintiff informed the defendant that it would be sufficient if prayers wore offered and pujas performed to God Subramanya daily both in the morning and evening for a period of 80 days in the defendant's name, and that the plaintiff was prepared to do the same if the defendant would amply remunerate him for such services : that the defendant promised to amply remunerate the plaintiff for such services; that in pursuance thereof the plaintiff performed pujas and offered prayers in the defendant's name for a period of 80 days from 10th October 1924 till the end of December 1924 praying for His divine blessings to the defendant and for the success of the defendant in his said suit No. 612 of 1924.
and that finally the defendant in consideration of the services rendered to him by the plaintiff as aforesaid agreed on 2nd January 1925 to pay him a sum of Rs. 5,000 and gave the plaintiff Ex. A. I am not able to see how this agreement is opposed to public policy. There is absolutely nothing wrong in a party to a suit asking somebody else to offer prayers to God in his name for the success of his suit. I fail to see how such an agreement:
tends to affect the duo administration of justice by bringing some extraneous influence to bear on the Court - or on the opposite party.
12. A litigant might believe in the justice of his case, and there is nothing wrong in offering prayers to God for the success of his case. The litigant may offer such prayers himself; or if he thinks it worthwhile to do so, he may ask another to offer prayers in his name to God for the success of his case. I am not able to sea anything wrong in this, either morally or legally. It is not open to the Courts to devise now heads of public policy. As stated by Lord Halsbury in Janson v. Driefonten Consolidated Mines Ltd.  A.C. 484. 'I deny that any Court can invent a new head of public policy.' The agreement in question not being unlawful, one is bound to enforce the same.
13. The decision in Bhagwan Dat v. Raja Ram, proceeded on the assumption, that:
She plaintiff in that suit undertook to perform some kind of puja, which is referred to as 'Anushtan' in order to cause the defendant to be successful in a suit which he had before the Courts. In the event of his success the plaintiff was to get one-tenth of the decree money... the finding of the Court below is that the plaintiff undertook by prayer (prarthana) to bring extraneous influence to bear on the mind of the Court trying the defendant's suit. We think that the circumstances of this case distinguish it from one in which one person should merely have undertaken to pray to a righteous Deity for the success of another's suit, for in such a case the Deity being righteous would be understood only to exercise an influence in a just cause. In the present case, the intention of the parties evidently was that the plaintiff should exorcise some influence unauthorised by law on the mind of the Court.
14. The learned Judges who decided the Allahabad case, while granting that there would be nothing wrong in one person merely undertaking to pray to a righteous Deity for the success of another's suit, base their decision on the special facts of the case before them, that:
the intention of the parties was that the plaintiff should exercise some influence unauthorised by law on the mind of the Court.
15. But in the case before me, having regard to the allegations in the plaint, I do not think that the Court would be warranted in presuming that the plaintiff undertook by prayer to bring extraneous influence to bear on the mind of the Court trying the defendant's suit No. 612 of 1924. All that I am concerned to say at present is that an agreement by the defendant to the plaintiff, to pay a particular amount to the plaintiff for prayers offered by the plaintiff in the defendant's name to God Subramania for His divine blessings to the defendant and for the success of the defendant in suit No. 612 of 1924, could not be presumed to be contrary to public policy.
16. No doubt it strikes one prima facie as carious that the defendant, a Musalman, should agree with the plaintiff, a Hindu, that plaintiff should offer prayers to a Hindu God 'Subramanya' in defendant's name for divine blessings and for success of the defendant in his suit against a firm for dissolution of partnership and for his share of the profits. The defendant may perhaps be able to show that the agreement Ex. A is vitiated, but as the suit has not been tried on the merits it is right that one should not say more than is absolutely necessary at this stage.
17. I am of opinion that the dismissal of the suit on the ground that on the face of it the agreement set out by the plaintiff is contrary to public policy could not be sustained. The parties at one stage seemed agreeable to report settlement to the Court but as the same has not been done, there is no alternative but to reverse the decision of the learned Judge and remand the suit for disposal according to the law. The costs of this appeal will abide the result. The court fee paid on appeal memorandum will be refunded to the appellant on his application.