1. ' DORAB PATE-I, J. -The appellant had entered into five agreements with the respondent for the supply of vegetables, ice, etc., in Quetta for the period from 1st July, 1962 to 30th June, 1963, at the rates prescribed in these five agreements. The appellant supplied the contracted articles to the respondent for a few months. But on 14th December, 1962 the respondent rescinded the five agreements on the grounds, inter alia, that the appellant had tried to bribe its officers. The agreements contained a clause under which the appellant had to make a representation to the Commander of the 8th Division, Headquarters Army, Quetta, and he did so. But, as his representations were rejected, he filed a suit in the Court of the Senior Civil Judge for damages against the respondent for breach of his contract. Now, the appellant had deposited Rs, 11,330 as a security deposit at the time of the execution of the five agreements and as he claimed Rs, 55,000 as damages for breach of contract,, he sued the respondent for a sum of Rs, 66,330 with cost and interest.
2. ' The respondent contested the suit and submitted that it had lawfully rescinded its agreements with the appellant, because the appellant had tried to bribe its officers, sublet the contracts, etc. The respondent also repudiated liability for damages in its written statement.
3. ' In the events that happened, the suit was heard by the learned District Judge, Quetta, and as the agreements executed between the appellant and the respondent were not in dispute, the appellant examined witnesses in order to prove the agreements into which he had in turn entered for the purchase of the vegetables, ice, etc., which he had undertaken to supply to the respondent.
4. The appellant also produced evidence to rebut the allegation that he had not acted illegally, and/or in breach of his agreements with the respondent as alleged by the respondent, And, by his judgment dated 30th July, 1966, the learned District Judge, Quetta, held that it was the respondent, which had illegally terminated its agreements with the appellant, therefore, he directed the respondent to refund to the appellant the sum of Rs, -11,330 which the appellant had deposited as a security at the time of the execution of agreements. Next, as to damages, although the appellant had claimed Rs, 55,000 as damages, the learned District Judge decreed Rs, 53,419 as damages.
5. Aggrieved by this judgment, the respondent filed an appeal in the West Pakistan High Court, which was heard by a Division Bench of the High Court on 5th September, 1970. The learned Judges of the High Court agreed with the trial Court's finding that the respondent had illegally rescinded its five agreements with the appellant and upheld the decree in the appellant's favour in the sum of Rs, 11,330 which was the security deposited by the appellant with the respondent at the time of the execution of its agreements. Next, as to the question of damages, although the appellant's witnesses had hardly been cross-examined by the respondent, the learned Judges held that the appellant had not given any evidence to prove that it had suffered any loss. Accordingly, they accepted the respondent's claim that the appellant was not entitled to damages and set aside the damages awarded by the trial Court to the appellant.
6. Aggrieved by this judgment, the appellant filed a petition for leave in this Court, and as the learned Judges had rejected the appellant's claim for damages in a very arbitrary manner, it is not surprising that leave was granted by this Court to consider, inter alia, the question whether the learned Judges should not have remanded the case "for further and better evidence" on the question of damages. Although, the respondent was served, it did not take part in the proceedings, therefore, the case was ordered to be heard ex parte against it and so we have heard the appeal with the assistance of Mr. Muzaffar Hassan; who appeared on behalf of the appellant.
7. ' As submitted by learned counsel, the appellant had produced some evidence in support of his claim, and as we observed, the respondent's cross-examination of the appellant and his witnesses was very cursory. Yet the learned Judges were of the view that the appellant had totally failed to prove its claim and in this connection, the learned Judges observed "Four stray persons were picked up and produced in Court to support the deal. One claimed himself to be a vegetable dealer and others professed them selves to be zamindars Agreement written on unstamped paper was produced with no witnesses to attest although large sums were advanced. No petition writer was contacted to write the agreement but a shopkeeper was selected as a scribe." Now, as submitted by learned counsel, the "Four stray persons" were the persons with whom the appellant had entered into agreements in order to carry out the contracts with the respondent. And, it does not appear to have been the respondent's case in the cross-examination of these witnesses that they were not the sub-contractors of the appellant. Therefore, to say the least, the observations made by the learned Judges were not justified. Similarly, we cannot subscribe to the view that the evidence of these persons was not fit to be believed, because they had entered into agreements with the appellant, which were unstamped. Bearing in mind the class of persons with whom these agreements were made and the facts that they were made in Quetta more than twenty years ago, we do not think the High Court was justified in rejecting these agreements, because they were on unstamped papers and because they had not been prepared by a petition writer. No doubt the position would have been different if objection had been taken to the fact that the agreements were not stamped, but as this objection was not taken, we are satisfied that the High Court has declined to examine the evidence produced by the appellant on grounds, which are patently illegal.
8. Mr. Muzaffar Hassan, therefore, relied on the leave granting order and submitted that the case should be remanded to the High Court for a proper examination of the evidence. The submission has force. The B learned Judges have failed to examine the evidence on wholly arbitrary grounds.
9. Therefore, we allow the appeal, set aside the judgment of the High Court, and remand the appeal to the Baluchistan High Court for deciding the appellant's claim for damages in the light of the evidence produced by the parties. We however clarify that the trial Court's decree for the refund of the deposit of Rs, 11,330 with cost and interest on this amount from the date of the suit stands.
10. Finally, we do not award any costs in this appeal as it had not been contested.