' S. A. NUSRAT, J.-This direct appeal under Article 185(2) (d) of the 1973 Constitution is directed against the judgment of a Division Bench of the Sind High Court dated 19-6-1978, passed on Letters Patent Appeal of the respondents, whereby the judgment and decree passed in a suit by a learned Single Judge of the same High Court, on the original side, was reversed.
2. The brief facts of the case are that the appellants Messrs Dada Limited of Karachi (hereinafter referred to as buyers), had treed into two forward contracts with the respondents, Messrs Abdul Sattar & Company (hereafter referred to as sellers), as per two letters dated 25-7-1964 and 28-7- 1964 for the purchase of 1,650 bags and 1,500 bags respectively of "rapeseed 1965 crop Mirpur Line" at the rate of Rs, 31.50 per maund, delivery in the month of February, 1965 at sellers' option by presentation of R/Rs and the balance of 10% was payable after delivery of goods at Karachi. The buyers paid advance deposits of Rs, 3,300 and Rs, 3,000 against each contract respectively. On 16- 2-1965 the buyers wrote two letters, in respect of two contracts, asking the sellers to perform the contracts by the specified date. On 25-2-1965 the District Magistrate, Tharparkar, promulgated an order under section 144, Cr. P. C. Prohibiting for one month the movement of certain varieties of seeds. Jambha, Turia, Mustard Oil and other products, out of the district by rail or road.
' On receipt of such information at Karachi, the buyers sent two letters to the sellers on 26-2-1965 calling upon them to exercise their option and perform the contracts. It was further stated in the said letters that if the sellers experienced any difficulty in forwarding the goods to Karachi city by railway, they were ready and willing to accept (1) delivery of the goods at the forwarding station of despatch subject to sellers refunding the freight charges; (2) truck bilty (truck notes) instead of railway billy (R/Rs); or (3) delivery of the goods at Karachi. On the same day a telegram was sent by the sellers to the buyears that the performance of the contract had become impossible due to prohibition imposed by law rendering performance unlawful as also excluding exercise of the options suggested by the buyers and offered to return the deposits. The buyers replied denying that the contracts had become frustrated contending that the order passed by the District Magistrate under section 144, Cr. P. C. Was without jurisdiction illegal and, therefore, called upon the sellers to deliver the goods either in the manner stipulated in the contracts or according to any of the options suggested by them. As no compliance was made by the sellers, the buyers alleged that the sellers had committed breach of contracts and they sent two bills claiming differences, for a sum of Rs, 47,850 on the first contract and Rs, 43,500 on the second contract, making an aggregate claim of Rs, 91,350. As the liability was denied by the sellers, a suit for recovery of the said amount was filed by the buyers in the High Court of Sind. The suit was resisted by the sellers and their main defence was that the order of the District Magistrate imposing restriction on the export of rapeseed out of the district had rendered the performance of the contracts unlawful and impossible thereby frustrating the contracts.
3. The main issue framed in the suit was whether the two contracts between the parties were frustrated and became impossible of performance by the Order under section 144, Cr. P. C.
Promulgated by the District Magistrate, Tharparkar at Mirpurkhas on 25-2-1965. At the trial no evidence was led by the buyers who relied on the correspondence between the parties. The sellers on the other hand examined three witnesses, two of whom deposed that they had entered into contracts with the sellers for the purchase of rapeseed but in view of the ban imposed by the order of the District Magistrate, they had settled the contracts and obtained refund of the amount. The third witness, Abdul Sattar, partner of the sellers' firm, stated that his firm had entered into 13 forward contracts for the purchase of rapeseed from merchants in Mirpurkhas in order to fulfil his firm's commitment to the buyers, but as the goods were not supplied to his firm due to the imposition of the ban, his firm could not, in turn, fulfil the contracts with the buyers.
4. The learned trial Judge examined the question of the validity of the order of the District Magistrate, Tharparkar, and held that it was illegal and without authority as the same fell beyond the purview of section 144, Cr. P. C. It was, therefore, held that the sellers could not place reliance on the said order in support of their plea of frustration of contracts. He further held that it was not an implied term of the contracts regarding delivery that the sellers themselves had to despatch rapeseed to Karachi by railway from any station on the Mirpur Line in Tharparkar District and, in the circumstances, the sellers could have delivered R/Rs of the consignments of rapeseed of contract quality by purchasing the same from merchants in Karachi who had imported the said goods before the imposition of the ban. Accordingly, it was held that as the sellers had failed to prove that they were unable to obtain the goods from other merchants in Karachi, their plea of impossibility of performance owing to imposition of ban was not substantiated. As the sellers had not disputed the market rate prevailing on the date of breach, the claim of the buyers was decreed in full as prayed, as per judgment dated 23-5-1967. The judgment and decree so passed in the suit was challenged by the appellant/ sellers by filing a Letters Patent Appeal which was allowed as per impugned judgment. Hence this appeal.
5. The issue with regard to the frustration of contracts on account of imposition of ban by the District Magistrate, Tharparkar, was examined by the learned Division Bench of the High Court and it was considered whether the said order was nullity in law and void ab initio so as to be ignored or whether it was a mere voidable order. Relying upon a judgment of this Court in the case of Chief Settlement Commissioner Lahore v. Raja Muhammad Fazil Khan and others , it was held that the order in question could not be treated as void because indeniably the District Magistrate had the requisite power and- jurisdiction to pass such order under section 144, Cr. P. C. Upon his satisfaction that there was an emergency and that it was necessary to prohibit the export of oilseeds out of the1 District in order to prevent acute shortage of oil seeds in the district which may lead to or encourage adulteration of edible oils and thus be a danger to public health or otherwise cause disturbance or dislocation of economic life. On such premises it was held that at best it could be a case of mere illegal order erroneously passed in the exercise of jurisdiction and not cause of an order passed patently without jurisdiction and, being a voidable order, it was liable to be set aside at the instance of an aggrieved person in the appropriate legal proceedings, either by having it rescinded as altered under subsections (4) and (5) of section 144, Cr. P. C. Or by filing a revision to the High Court under section 439, Cr. P. C. It could also be challenged through a- constitution petition as was in fact done by the appellants through a Constitution Petition No, 101/65 which, however, was rendered infructuous upon the expiry of the order at the end of the month. In the circumstances, it was observed by the learned Bench that the validity of the order in question could not be challenged in the suit collaterally without joining the District Magistrate and/or the Provincial Government who were necessary parties.
6. The. Above findings of the learned High Court are unexceptionable and the learned counsel for the appellants was unable to challenge the same. The said findings are supported by a judgment of this Court in the case of Mansukhdas Bodaram v. Hussain Brothers Ltd. . In the said case frustration of contract for supply of rapeseed was claimed on account of the promulgation of a Martial Law Regulation during the currency of the contract fixing the price of the rapeseed much below the contract price. The contract, in the circumstances, was held to have become unlawful and impossible to be performed and thus frustrated under section 56 of the Contract Act. In the said case it was held that the effect of frustration of a contract was immediate and automatic as "it guillotines the contract without the action of the either party".
7. It was, however, contended by the learned counsel for the appellants that notwithstanding the order passed by the District Magistrate. ' it was still open to the sellers to have supplied the goods under any of the modes suggested in their letters dated 26-2-1965. The contention has no force. Firstly, because the letters in question were written by the buyers after the contracts stood already frustrated a day earlier on 25-2-1965 upon the imposition of the ban by the District Magistrate on the said date. The letters of the appellants/buyers dated 26-2-1965 at best were in the natureA of fresh proposals as the mode of delivery was sought to be changed contrary to the stipulation contained in the two contracts.
Further, the stipulation in the contracts with regard to delivery was that the sellers had to present R/Rs at Karachi to the buyers and payment of 90% of the price was to be made against the R/Rs, Thus, undoubtedly the intention of the parties was that the mode of performance contemplated by them was that the sellers themselves had to despatch the goods by rail to Karachi from any railway station on the Mirpur Line and present relative R/Rs to' the buyers at Karachi before 28-2- 1965. No exception, in the circumstances, can be taken to the finding of the learned Bench of the High Court that the alternate mode of delivery of the goods ex-stock with other merchants in Karachi, could not have been in the contemplation of the parties or intended by them as a natural or reasonable mode of delivery of the goods.
8. For the reasons mentioned above, we find no merit in this appeal which is dismissed but however there will be no order as to costs. PLD 1975 SC 331 PLD 1980 SC 122 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.