T. N. VALLINAYAGAM, J. ( 1 ) THIS Civil Revision Petition is against the dismissal of the suit of the plaintiff for recovery of money paid by him to the defendant for the purpose of securing a seat in the Engineering College at bangalore. It represent the alleged donation of Rs. 40,000/- at a concessional rate of Rs. 18,000/ -. This Rs. 18,000/- was received by the defendant for being paid as donation to the College. The Trial court has dismissed the suit though the suit is based on a cheque. The Trial Court held that the contract is under Section 23 of the indian Contract Act and consequently dismissed the suit. It is submitted that the suit is not hit by Section 23 of the Contract Act. The recovery of money Is an exception to the principle of "in pari delicto" under Section 72 of the Indian Contract Act. The case of mahabir KISHORE AND OTHERS vs STATE OF MADHYA pradesh is to the effect that if an illegal contract has been implemented, the party who received the benefit of such contract will not be allowed to retain the benefit. ( 2 ) THE respondent served and remained absent. ( 3 ) THE question is whether the suit can be held to be not maintainable especially when the defendant did not appear and contest the suit. ( 4 ) IT has been repeatedly pointed out that whenever defendant did not appear an exparte decree must be given and the Court has no other option but to depend upon the evidence of the plaintiff and the documents marked by him. The only exception is Order 7 Rule 11 (d ). Order 9 Rule 13 clearly contemplates that passing of exparte decree. While so, one fails to understand as to how exparte decree can be denied to the plaintiff. It appears the Court below are always unmistaken notion of law that they can find wholes with the evidence of the plaintiff even in the absence of challenge made to the evidence by the defendant. This ground alone is sufficient to decree the suit. It appears the Court below are always unmistaken notion of law that they can find wholes with the evidence of the plaintiff even in the absence of challenge made to the evidence by the defendant. This ground alone is sufficient to decree the suit. ( 5 ) NOW the Court below has embarked upon a finding as to whether the money received for illegal purpose can be recovered by the giver in a Court of law and answered the question against the giver and allowed the offender to go scotfree enjoying luxuriously the benefit of such a transaction. The Trial Court has not appreciated that the law is otherwise. In the case of JAHED SHAIKH AND another vs KAMALESH CHANDRA DAS and OTHERS which reads as follows: it is held "that even assuring the agreements in question were ab inttio unlawful as contravening the provisions of the Iron and Steel (Control of Production and Distribution) Order, 1941, the Court would assist the plaintiffs in recovering the sums paid under them inasmuch as they were more innocent and not in pari delicto with the defendants in the matter of performance of those contracts. The plaintiffs in seeking to recover the amounts were not attempting to enforce those contracts but were really acting from their desire to repudiate the agreements and get back their money. In those circumstances the law allowed them locus paenitentiae and permitted them to recover the money. " 5. In the case of RAYUDU PALLAMSETTI AND ANOTHER vs dommetl SRIRAMULU which reads as follows: "a marriage of two minors was settled and in pursuance of understanding arrived at the plaintiff gave certain presents and moneys worth about Rs. 3000/- to the defendant. Subsequently, the marriage could not come off for a variety of reasons, and the plaintiff, therefore, laid action for recovery of the presents and moneys: held, that the mere intention to celebrate such a marriage, which if celebrated, would have been ab initio void, was not sufficient to disentitle the plaintiff from recovering what he gave as presents to the prospective bride. Although in the case, presents and moneys were given for an illegal purpose, namely to celebrate the marriage of two minors, who had not attained the requisite age, as prescribed by the hindu Marriage Act, the purpose itself had not been carried out and the contract was repudiated, and in cases of this nature money was recoverable as the parties revert back to their original or previous positions as there could be no marriage. It was only in cases where there was part performance of illegal contract that the Court would not render assistance in the recovery of moneys advanced for any illegal purpose. Therefore, the right to restitution of moneys advanced was not lost as the parties were restored to their original positions". ( 6 ) IN the case of RAMAGYA PRASAD GUPTA AND OTHERS vs MURLI PRASAD AND OTHERS it is held as follows: "that M was not entitled solely to the whole of the compensation money but all those whose names appeared in the partnership deed or the legal representatives or assignees of such of them who were dead, were otherwise entitled to share the compensation money in proportion to their respective shares as specified in the deed. There was nothing to suggest that the partners k'new or were aware that their partnership was illegal. The amounts were contributed by all the partners in accordance with their shares before the licence was assigned to M. The illegality, if any was discovered only after the Government issued a notification dated 19. 5. 1955, revoking the licence. None of the suits could be said to be barred by limitation. In any case, the persons who have contributed the money to provide the capital for the undertaking were entitled to recover the amounts in accordance with their respective shares. That relief was not dependent upon the validity of the partnership either of 1945 or of 1950. The arrangement between the partners and the licensee did not attract sub-sections (2) and (3) of Section 9 of the Act. Owning of the propettes by the Corporation was not in contravention of any of the provisions of the Act. The agreement therefore was not valid. " ( 7 ) IN the case of KUNJU COLLIERIES LTD. , AND OTHERS vs JHARKHAND MINES LTD. , AND OTHERS it is held as follows: "section 65 makes a distinction between an agreement and a contract. The agreement therefore was not valid. " ( 7 ) IN the case of KUNJU COLLIERIES LTD. , AND OTHERS vs JHARKHAND MINES LTD. , AND OTHERS it is held as follows: "section 65 makes a distinction between an agreement and a contract. According to Section 2 of the Contract Act an agreement which is enforceable by law is a contract and an agreement which is not agreeable by law is said to be void. Therefore, when the earlier part of Section 65 speaks of an agreement being discovered to be void, it means that the agreement is not enforceable and is, therefore, not a contract. It means that it was void. It may be that the parties or one of the parties to the agreement may not have, when they entered into the agreement, known that the agreement was in law not enforceable. They might have come to know later that the agreement was not enforceable. The second part of the section refers to a contract becoming void. That refers to a case where an agreement which was originally enforceable and was, therefore, a'contract, becomes void due to subsequent happenings. In both these cases, any person who has received any advantage under such agreement or contract is bound to restore such advantage, or to make compensation for it to the person from whom he received it. But where even at the time when the agreement is entered into both the parties knew that it was not lawful and, therefore, void, there was no contract but only an agreement and it is not a case where it is discovered to be void subsequently. Nor is it a case of the contract becoming void due to subsequent happenings. Therefore, Section 65 of the contract Act did not apply. Where a mining tease in favour of the plaintiff was contrary to the provisions of the Mines and Minerals (Regulation and development) Act 1948 and the Mineral Concession Rules (1949) and void ab initto and there was proof to show that the plaintiff could not have been in ignorance of the legal position, Held that this was not a case to which Section 65 applied and the plaintiff was not entitled to claim refund of the sum paid in pursuance of the lease, under that provisions Nor was it a case to which Section 70 or Section 72 of the Contract Act applied. The payment of the money was not made lawfully, nor was it done under a mistake or under coercion". ( 8 ) IN the light of the above dictum, it is seen that the defendant had the benefit of the money. The plaintiff in his over anxiety to get a seat believed the representation of the defendant and parted with the money. If a man extracts money from another on a false promise, simply because the promise is false or proved to be false, the promissor cannot be allowed to walk away with the money. It is even offence under Section 420 IPC. ( 9 ) VIEWED from many angle, I am satisfied that the plaintiff is entitled to get back his money. In this view, selling aside the judgment and decree of the Trial Court, the suit is decreed with costs. The defendant remained exparte before the Trial Court as well as before this Court. The Civil Revision Petition is also allowed with costs. --- *** --- .