SAEEDUZZAMAN SIDDIQUI, J.-This order will govern L. P. As. Nos. 246 and 247 of 1965, which arises out of the judgment and decree passed by a learned. Single Judge of the erstwhile High Court of West Pakistan, Karachi Bench dated 7-12-1965, whereby Suits Nos. 134 and 143 of 1968; filed by respondents against the appellants were decreed in the sum of Rs. 25,000 and Rs. 22,500 respectively with proportionate costs and interest at 6 per cent. Per annum.
2. The claim in both the above suits is based on two forward contracts of cotton-seed made on 1- 10-1968. For the sake of convenience we are staling the facts relating to the two appeals separately.
3. In Appeal No. 246 of 1966 the appellant under a contract (herein--after shall be referred for the sake of convenience as "the first contract") dated 1-10-1968 agreed to purchase from respondents 10,000 maunds of new crop N. T. Sawgin Cotton Seed 1958-59 season at the rate of Rs. 16-12-0 F. C.
R., Tando Allahyar. The weighment according to the contract was to start from 1-11-1958 and delivery was to take place at seller's option. Empty "bardana" and twine were to be supplied by the appellant at respondent's call to respondent's factory. It is an admitted position that the appellants were called upon to supply "bardana" on 20-10-1958 but he failed to supply the same and consequently the weighment could not take place on 1-11-1958 as mentioned in the contract referred to above.
4. In L. P. A. No. 247 of 1965, the appellants entered into contract dated 1-10-1958 with the respondents (hereinafter shall be referred for the sake of convenience as "the second contract") for the purchase of 10,000 new crop of N. T. Roller Cotton Seed 1958-59 season. The rate was agreed at Rs. 16-12-0 F. C. R. Jhuddo. Delivery was to take place at the option of seller and "bardana" was to be supplied by the appellants at the respondents' call at the respondents' factory. The weighment of goods in this case was to start from 15-10-1958.
5. The appellants had deposited Rs. 5,000 in respect of the first contract and Rs. 5,000 were deposited in respect of the second contract as an advance at the rate of Rs. 0-8-0 per maund. It is common ground between the parties that no "bardana" was supplied by the appellants in respect of the first contract when demanded by the respondents but 10,000 empty gunny bags were despatched by the appellants to respondent's factory against the second contract. It is not disputed that delivery was passed and offered by the respondents in respect of both the above contracts but the appellants did not respond to the call of the respondents and took steps for taking delivery of the goods. It is also an admitted position that on 18-11-1958, the respon--dents, in respect of both the above contracts called upon the appellants to pay damages calculated according to the difference of the contract price and the rates fixed by Martial Law Authorities under M. L. R. 42 in respect of cotton-seed. The date of breach in respect of the first contract was held to be 1-11-1958 while in respect of the second contract the breach was held to have taken place on 20-10-1958.
6. We have heard Mr. Iqbal Kazi, the learned counsel for the appellants and Mr. Nizam Ahmed, the learned counsel for the respondents in the above appeals. In both these appeals Mr. Iqbal Kazi contended that the dates of breach of the first and second contract held by the learned Single Judge as 1-11-1958 and 20-10-1968 are not supported on record by the evidence in the case. The learned counsel further contended that in view of the letter dated 18-11-1958 written by the respondent to the appellant calling upon them to pay the difference of the prices as damages on the basis of the prices of cotton-seeds fixed by the Martial Law Authorities under M. L. R. 42, it should have been held that the contract was kept alive until 18-11-1958 for performance by the parties and that the prices fixed under M. L. R. 42 having come into effect in the meantime namely on 11-11-1958, the contract stood frustrated and as such there was no breach on the part of the appellants. Ad-- ditionally it was contended that the respondents being a partnership firm and both the partners having died one after the other during the pendency of the suits before the learned Single Judge, the suits as a whole abated as the L. Rs. Of the two deceased partners were not brought on record within 19 days of the death of last partner of respondents and as such there were no suits pending in the eye of law when the learned Single Judge granted decrees on 7-12-1965. The dates of death of the two partners of Zamindar Cotton Factory were said to be 16-10-1968 and 31-1-1965.
7. We now consider the above contentions of the learned counsel for the appellants. The contention of the learned counsel for the appellants that the dates of breach as held by the learned Single Judge in respect of the above two contracts as 1-11-1958 and 20-10-1968 respectively is not supported on the evidence on record, is based upon the letter of the respondents written to the appellants on 18-11-1958 demanding the damages from appellants on the basis of the contract price and the prices fixed by the Martial Law Authorities of the cotton-seeds under M. L. R. 42 which came into effect from I1-11-1958. The learned counsel relying upon section 39 of the Contract Act contended that upon refusal of the appellants to take delivery of the goods the contract at the most became a voidable contract and if the respon--dents wanted to avail of the default committed by appellants, they should have exercised the option by putting an end to the contract.
In the absence of such a communication by the respondents to the appellants the contracts should have been held to be kept alive for the purpose of performance by the parties. The learned counsel in support of his contention also relied upon sections 55, 64 and 66 of the Contract Act. We are unable to agree with the contention of the learned counsel. It is an admitted position on the record that in respect of the first contract the respondents called upon the appellants to supply "bardana" on 20-10-1958 and in spite of receipt of this letter by them, the appellants failed to respond and supply "bardana" as demanded. Similarly in respect of the second contract, although 10,000 gunny bags were despatched by the appellants to respondents but when the respondents requested them on 20-10-1958 to send their representative in whose presence along the weighment could take place in accordance with the terms of con--tract, and to take delivery of the goods no response was made, and no steps were taken to take the delivery of the goods. We are in agreement with the learned Single Judge that the breach in respect of the first contract took place on 1-11-1958, the date on which weighment was to start, as on account of the failure on the part of the appellants to supply "bardana" the contract could not be performed and the breach on the part of the appellant was complete. Similarly in respect of the second contract the failure on the part of appellants to send their representative to enable the respondents to start weighment of goods and to offer delivery thereof amounted to repudiation of contract, and the breach was complete on the part of appellants. The date of breach fixed by the learned Single Judge in respect of the second contract as 20-10-1958 was quite reasonable in the circumstances of the case as it was on this date the appellants were called upon to send their representa--tive to take delivery.
Under section 44 of the Sale of Goods Act, if the seller is ready and willing to deliver the goods and requests the buyer to take the delivery of the goods and the buyer does not within a reasonable time after such a request take delivery of the goods he is liable to the seller for any loss occasioned by his neglect or refusal to take the delivery. Similarly under section 54 of the Contract AM when a contract consists of reciprocal premises such that one of them cannot be performed or that its performance cannot be claimed till the other has been performed and the promisor of the promise last mentioned fails to perform it, such promisor cannot claim the performance of the reciprocal promise, and must make compensation to the other party to the contract for any loss which such other party may sustain by the non-performance of the contract. In the first contract it is an admitted position that "bardana" was to be supplied by the appellants before weighment could start and delivery offered to appellants which was admittedly not done. It is not disputed before us that in the event of failure on the part of the appellants to supply "bardana" weighment could not be made by the respondents and delivery offered to them. Similarly in respect of the second contract it is an admitted position that after supplying the "bardana" the appellants in spite of request made respondents failed to depute their representative to enable the respondents to start weighment and offer deliveryof goods. It is not disputed that in the absence of appellants' representa--tive the weighment of goods could not take place and delivery offered to appellants.
The conditions of supply of "bardana" and deputation of the representative of the appellants at the time of weighment of goods and offer of delivery thereof being the essential conditions of the two contracts breach thereof would amount to the breach of the contracts. Such breach having committed by the appellants, in respect of the above two contracts in our view the respondent were entitled both under section 44 of the Sale of Good Act and section 54 of the Contract Act to claim damages for such breach . The contention of the learned counsel that in view of section 39 of the Contract Act it was open to the respondents to have put an end to the contract and unless it was done, the contract should be deemed to have been kept alive for performance by the parties, has no merits. Section 39 of the Contract Act is in the following terms :- "When a party to a contract has refused to perform or disable himself from performing his promise in his entirety, the promisee, may put an end to the contract unless he has signified by words or conduct his acquiescence in its continuation."
To supplement the above argument the learned counsel further relied upon sections 55 and section 64 of the Contract Act. We are unable to agree with the contentions of the learned counsel as it was not a case where the respondents were avoiding to perform the contract on the grounds that the appellants had committed breach thereof. It was a case when the respondents were claiming damages on account of non-performance of the material conditions of the contract by the appellants. Failure to perform, in our view, means such conduct as amounts to rununciation i. e., to an absolute refusal to perform the contract so that the other party may accept as a reason for not performing his part. On the facts of the present. Case we are of the view that the failure on the part of appellants to perform his part of the contract was such which gave rise to renunciation of contract and as such provisions of section 44 of the Sale of Goods Act and section 54 of the Contract Act were attracted. Turning to the contention of the learned counsel far the appellants that the respondents having demanded damages for breach of contract for the first time by their letter date 18-11-1958 on the basis of prices of cotton seeds fixed by Martial Law authorities under M.
L. R. 42, the contract was kept alive for performance by either party until that date. We are of the view that mere forbearance on the part of respondents from suing the appellants at an earlier.
Date o giving a formal notice in that behalf could not amount to keeping the contracts alive for performance by either party. The appellants having admittedly committed breach of the contracts by failing to perform his promise, there was nothing left in the contracts to be performed by respondent. The fact that respondents waited for fixation of prices under M. L. R. 4 and then demanded damages on the basis of difference in the contract prices and prices fixed under M. L. R.
42, by itself was not sufficient to give rise t the inference that the contracts were kept alive by the parties for performance. The learned Single Judge rightly held that the breach having taken place the damages were to be assessed on the basis of the prices prevalent on the date of breach and the fact that respondents demanded damages on the basis of prices fixed by Martial Law Authorities under M. L.. R. 42 which may be more favourable to respondents, could not form the basis for according damages to the respondents. The learned counsel for the appellants in support of his contentions relied upon AIR 1943 P C 34, AIR 1933 P C 233 and AIR 1928 Mad. 211. We have examined these decisions and have reached the conclusion that these cases have no application to the facts of the present cases which, in our opinion, will fall under section 54 of the Contract Act.
We may appropriately refer here to the case of Mohammadi Cotton Factory v. Pakistan Industries Ltd. 1968 SCMR 1198and which in our opinion will apply to the facts and circumstances of the present case.
8. The learned counsel further complained that the basis of the calcula--petition of the damages was wrong as there was no evidence on record to arrive at a conclusion as to the market rate of the cotton-seed on the date of breach. It was argued that the rate of cotton-seed appearing in the "DAWN" which the learned Judge considered while awarding damages should not have been looked into as it was inadmissible in evidence. We are afraid this argument cannot be accepted as at the time the relevant issue of daily "DAWN" was exhibited in the Court no objection was taken by the appellants for its pro--duction in the case and it was duly exhibited. Apart from it the respondents' witness on oath stated before the learned Single Judge that the market rates of the cotton-seed on 1-11-1958 was Rs. 12 and the appellant witness had admitted in evidence the rate of cotton-seed as on 20-10-1958 at Rs. 13 per maund respectively. This statement of respondents' witness was neither challenged in the cross-examination by the appellant nor the appellant produced any evidence in proof of market rates of cotton-seed on the aforesaid dates to dislodge the above evidence. All that was said on behalf of the appellants in the evidence, was that there was no market of the cotton--seed on the relevant dates. In these circumstances in our view the learned Single Judge was justified in holding the market rate of cotton-seed on 20-10-1958 and 1- 11-1958 at Rs. 13 and Rs. 13-12-0 respectively which were sufficiently borne out from the record.
Having held that the breach in case of the first contract having taken place on 1-11-1958 and that in respect of the second contract on 20-10-1958, it is not necessary to go into the question of effect of fixation of prices of cotton.-seed under M. L. R. 42 which admittedly came into effect much after the dates of breach in the two cases.
9. Turning to the last contention of the learned counsel for the appellants which was raised in the present appeals as well as in L. P. A. No. 16 of 1965 between the same parties that the Zamindar Cotton Factory being a registered partnership firm and its two partners having died during the pendency of the above suits, the suits stood abated after ninety days of the death of the last partner, which according to the learned counsel, took place on 31-1-1965. According to learned counsel on 7-12-1965 and 23-12-1965 when the decrees were granted by the learned Single Judge, there were no suits legally pending in the eye of law before them. This argument has not impress-- ed us at all. Firstly no objection was raised on behalf of the appellants before the learned Single Judge when Abdul Jalil appeared in the above suits as res--pondents' witness and stated that he was partner of the firm and that his father Haji Hajan who was a partner in the firm had died. He also stated that the other partner Haji Soomar also later died. The fact about the death of two partners carne to the knowledge of appellants on 22-10-1965 when the above witness was examined in the Court. The present appeals and L. P. A. No. 16 of 1965 was filed on 23-12-1965 but this ground was not raised in any of these appeals. An application under Order XL1, rule 27, C. P. C.
Was filed on 3-2-1972 in the above appeals in which this ground was taken for the first time. Mr. Nizam Ahmed, the learned counsel for the appellants rightly pointed out that the affidavit in support of application under Order XLI rule 27, C. P. C. States that the appellants bad recently come to know about the death of the partners of the appellants, which is not correct, as this fact was in the knowledge of the appellants at least from the date when Abdul Jalil was first examined in Court. Mr. Nizam Ahmed was also right in pointing out that if the objection was raised at the time of examination of Abdul Jalil, he would have certainly placed the circumstances and facts on the basis of which he became partner in the firm after the death of his father Haji Hajan. Mr. Nizam Ahmed informed us that Abdul Jalil has also died in the meantime. We were not inclined to allow the appellants to raise this contention but since we have taken the view that the suit in the circumstances of the case had not abated in spite of death of the partners, we have considered the contention of the appellants' counsel. Under Order XXX, rule 4, C. P. C., which is in the nature of an exception to Order XXII, C. P. C., a suit filed in the name of the film could be continued in spite of the death of the partner, without bringing his L. Rs. On record. A perusal of the rule will show that the object of enacting this rule was to save the suits instituted by the partners in the name of firm upon the death of such partners, as otherwise in the absence of this rule such suits could not have been maintained without bringing the L. Rs. Of the deceased partner on record. This rule also intended to bring such a suit out of the mischief of section 45 of the Contract Act which enjoined that joint promises can enforce a promise against the promisor only jointly and in case of death of anyone of them, the representative of such deceased promisee jointly with the survivor or, survivors, and after the death of last survivor with the representatives f all jointly. Mr. Iqbal Kazi, learned counsel for the appellants, contended that provisions of Order XXX, rule 4, C. P. C. Would be applicable only in cases where at least one of the several partners consti--tuting the firm is surviving, but in cases where all the partners died during pendency of the suit this rule had no "application. The contention of the learned counsel further is that a partnership firm stands dissolved ipso facto on the death of any of its partners. ' We asked the learned counsel for the appellants as to what would be the effect if the partnership kept a provision that on the death of any one of the partners his L. Rs. Will become partners of the firm in his place. The learned counsel replied that even in such cases it will be a new partnership which will not be entitled to prosecute and continue the cause of action which accrued to the old partnership consisting of the deceased partner. We are unable to agree with the contention of the learned counsel. In our view rule 4 of Order XXX, C. P. C. Was enacted to save such suits and the interpretation we have placed on this rule, is fully in accord with the intention manifest in this rule. To hold that a suit could be continued without bringing the L. Rs. Of the deceased partner in the event of the death of one of the partners while on the death of other partner or partners such suit will abate, will be anomalous in our view. We are also o the view that in case where the partnership provided that in the event of the death of any of the partners, the legal heirs of such partner will be admitted as partners in place of the deceased partner, a new firm does not come into existence upon such admission of the legal representatives of the deceased partner and the old firm continues. We have carefully examined rule 4 of Order XXX, C. P.
C. And are unable to see any reason for holding that while a suit in the name of firm could be continued without bringing the L. Rs. Of a deceased partner in the event of death of one of the several partners, the same effect should not follow if all of them die during the pendency of the suit.
Such interpretation of rule 4 of Order XXX, C. P. C. Will, in our view, negate the very object of its enactment. We are of the view that while death of one of the several partners will not affect the competency of the suit brought in the name of the firm, the same result will follow on the death of the other partner or partners during pendency of the suit. We accordingly hold that Suits Nos. 134 of 1965 and 143 of 1965 and Suit No. 154 of 1961 which were instituted in the name of Zamindar Cotton Factory did not abate on the death of its two partners during pendency of the suit and were competent by virtue of the provision of rule 4 of Order XXX, C. P. C. And the judgments and decrees granted by the learned Single Judge in the above suits were valid. No other point was raised.
10. The result of the aforesaid discussion is that both L. P. As. Nos. 246 and 247 of 1965 are dismissed with costs and the judgments and decrees of the learned Single Judge passed in Suits Nos. 134 and 143 of 1961 are maintained.