' MUHAMMAD SAYEED AKHTAR, J.---The plaintiff/respondent filed a suit on 15-6-1995 under Order XXXVII, C.P.C. For recovery of Rs,4.41,884.76 plus 20% mark-up/ compensation on the amount of cheque and 5% legal and other expenses. The suit was decreed ex parte against the defendant/ appellant on 22nd March, 1997 by the learned Additional District Judge, Faisalabad. However, on the application of the appellant the said decree was set aside on 20-1-2001 on the statement of the learned counsel that he had no objection to the acceptance of the same. The defendant/appellant did not file an application for leave to appear and defend the suit after the setting aside of the ex parte decree. Consequently the decree as prayed for was passed by the learned Additional District Judge, Faisalabad vide judgment dated 19-2-2002.
2. The learned counsel for the appellant contended that a composite application was filed for setting aside the ex parte decree and for grant of leave to appear and defend the suit as such there was no justification for decreeing the suit without disposing of the application for leave to appear and defend the suit filed by the defendant/appellant. He further submitted that there was no justification for awarding compensation/mark-up @ 20% and legal expenses @ 5%.
' Conversely the learned counsel for the respondent submitted that no application for leave to appear and defend the suit was filed after the setting aside of the ex parte decree on 20-1-2001. In the absence of the same the suit has been rightly decreed. However, he admitted that the compensation/mark-up @ 20% and legal expenses @ 5% could not be awarded.
3. We have gone through the judgment of the trial Court and perused the record. The alleged composite application filed by the defendant/appellant for setting aside the ex parte decree is not present on the lower Court record. However, the learned counsel produced a copy of the same from his own file. We have gone through the same. We find that not a mention has been made about the grounds for grant of leave to appear and defend the suit. All the grounds taken by the appellant in the said application are regarding setting aside the ex parte decree. In the absence of any application for grain of leave to appear and defend the suit the contents of the plaint are deemed to be admitted and the plaintiff/respondent is entitled to a decree. Under section 73 of the Contract Act, 1872 when a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach. Nothing is present on the record to show that the plaintiff suffered any loss due to the breach of the contract. Similarly no agreement between the parties has been placed on record for the recovery of any reasonable compensation under section 74 of the Contract Act, 1872. The alleged compensation being claimed appear to be in the nature of liquidated damages. The same could not be awarded without any proof of loss or the stipulation in the agreement, if any, between the parties. See Allied Bank of Pakistan, Faisalabad v. Messrs Aisha -Garments and others 2001 M LD 1955. We, therefore, partly allow this appeal and set aside the judgment and decree to the extent of compensation/markup @ 20% and legal expenses @ 5%. The decree for recovery of Rs,4,41,884.76 is upheld. No order as to costs.