QADEERUDDIN ARMED, C. J.--These two appeals have arisen . From a common judgment given by a First Class Sub-Judge, Hyderabad dated the 17th of November 1960, by which he dismissed the suits of both the parties. Suit No. 55 of 1953 was filed by a firm known as Haji Soomar Haji Hajan against Faiz Muhammad. Suit No. 21 of 1954 was filed by Faiz Muhammad against Haji Soomar Haji Hajan.
2. The facts which form the background of these suits were that in October 1949, Haji Soomar Haji Hajan agreed to lease 7000 acres of land, situated in Taluka Tando Allahyar, for five years to Haji Faiz Muhammad from Rabi 1949-50 to Kharif 1954-55 at a yearly rent of Rs. 1,58,000. According to Faiz Muhammad possession of 5500 acres of that land was delivered by Haji Soamar Haji Hajan in October 1949. On the 14th of December 1949, Haji Faiz Muhammad paid Rs. 10,000 to Haji Soomar Haji Hajan. According to Haji Soomar Haji Hajan, possession of 5500 acres of land was delivered on the 1st of January 1950. On the 10ch of February 1950, an agreement to lease, Exh. 67, was written in which it was stipulated that a formal document of lease would be executed after obtaining necessary sanctions and ascertaining the validity of the title of Haji Soomar Haji Hajan. Haji Faiz Muhammad was to pay the balance of the price instalments one in April and the other in May 1950 and possession of the remaining 1500 acres was to be delivered to him. The payment was not received by Haji Soomar Haji Hajan ; therefore, he sent a tele--gram, Exh. 87, to Haji Faiz Muhammad. According to Haji Falz Mubammad, Haji Soomar forcibly took back the possession of 5500 acres together with the crop which belonged to Haji Soomar Haji Hajan and was at that tine standing on the land. Thereafter, according to counsel for Faiz Muhammad, efforts to arrive at a settlement failed but according to Mr. Nizam Ahmed they were successful and resulted in an arrangement which is embodied In a document which it is described as a receipt and is Exh.
66. It is dated the 30th of May 1950. According to Mr. Jamaluddin, this receipt was obtained from Haji Falz Muhammad under coercion.
3. In terms of receipt, Exh. 66, an arrangement was arrived at. It was that the above-mentioned transaction was cancelled and another transaction, which was made separately on the 11th of July 1949, was completed by adjusting the amount of Rs. 10,000 which was paid by Haji Faiz Muhammad to Haji Soomar Haji Hajan towards the above-mentioned transaction. The total amount which was payable in connection with the transaction of the 11th of July 1949 was Rs. 47,000 which amount, according to the derails which are contained in the document was paid. Along with the execution of toe receipt, another document was executed which is Exh. 89, dated the 30th of May 1950, according to which Haji Faiz Muhammad had to supply 4000 mounds of cotton pods to Haji Soomar Haji Hajan at the rate of Rs. 25 per mound. This contract was to be performed between the 15th of Bhadon and 30th of Aso of Sambat 2007. s. 12,000 were paid to Haji Faiz Muhammad as earnest money in connection with this transaction. The receipt of this amount by Haji Faiz Muhammad is mentioned in Exh. 89.
4. In the above circumstances, Haji Faia Muhammad took the stand that Haji Soomar had committed breach of the contract according to which he had to lease 7000 acres of land and had by threats and coercioa obtained his signature on the receipt, Exh. 66, and had also failed to account for two crops which belonged to him but were reaped by Haji Soomar. As against this, the stand of Haji Soomar Haji Hajan was that Faiz Muhammad had committed breach of the contract which was embodied in Exh.
89. Some of the goods which were to be supplied, according to it, were not supplied. The position, according to Haji Soomar, was that Haji Soomar Haji Hajan were entitled to recover from Haji Faiz Muhammad Rs. 57,261-8-0 partly by way of damages and partly byway of refund of the money which was advanced to Haji Faiz Muhammad.
Both the parties fi~.Ed suits. The first suit was filed by Haji Soomar Haji Hajan bearing No. 55 of 1953 on the 9th of November 1953, and Haji Faiz Muhammad filed Suit No. 21 of 1954 on the 30th of March 1954. The first suit related to the refund of Rs. 8,856.08 and damages in the amount of Rs. 48,405 for rendition of account. The second suit was against Haji Soomar Haji Hajan with respect to the two crops which they had allegedly by force taken into their possession.
The two suits were tried together in the sense that evidence recorded in one was ordered to be read in the other.
5. Haji Soomar Haji Hajan produced four witnesses, namely, Haji Hajan P. W. 1, Muhammad Finial P.
W. 2, Ghulam Hyder P. W. 3 and Hidayat Ali P. W.
4. Haji Faiz Muhammad examined himself as his oven witness as P. W. I and on behalf of Haji Soomar Haji Hajan four witnesses were examined.
They were Ghulam Hyder D. W. 1, Hidayat Ali D. W. 2, Haji Hajan D. W. 3 and Haji Soomar D. W. 4.
6. The most important documents which have been brought on record are the agreement, Exh. 61, of the 10th of February 1950 to lease 7000 acres of land, the receipt dated the 30th of May 1950 Exh. 66, the agreement dated the 11th of July 1949, Exh. 86 and the last agreement, dated the 30th of May 1950, Exh. 89.
7. Separate issues were framed in both the suits as follows :- Issues in Suit No. 55 of 1953 tl) Are the plaintiffs agriculturists ?
(2) Is the plaintiff a registered firm ? If not, what is the effect ?
(3) Is there no ginning factory standing in the name of the plaintiff at Tan Jo Allahyar ?
(4) Did the defendant agree to melt the cotton pods to the plaintiff ? If so, what quantity and what were the terms of agreement ?
(5) What rate did the defendant agree to for the cotton pods ?
(6) Did the defendant not execute the kabala ?
(7) Are the terms of the agreement incorporated to the kabala ?
(8) Did the defendant execute the kabala under coercion and undue influence ? If so, what is the effect ?
(9) Did the defendant not receive the amount of Rs. 12,000 by war of earnest money ?
(10) Did the defendant not execute a receipt for this amount?
(I1) Is this receipt a fictitious document and was it executed by defendant under coercion and undue influence ?
(12) Did the defendant not deliver the cotton pods to the plaintiff as per kabala and what was the quantity of cotton pods delivered by the defendant ?
(13) What payments have been received by defendant from the plaintiff ?
(14) Did the defendant agree to adjust money by subsequent delivery ?
(15) Has the plaintiff suffered any loss on account of the non--performance of the contract by defendant?
(16) Has the defendant to pay any amount to plaintiff and if so, how much ?
(17) Is the suit not maintainable in the present form ?
(18) Is the suit not in time ?
(19) Has the Court no jurisdiction to try this suit ?
(20) What should th: decree be ?
Issues in Suit No. 21 of 1954
(1) Is the suit not in proper form ?
(2) Is the suit time-barred ?
(3) Are the defendants agriculturists ?
(4) Are the defendants accounting party and are they liable to render accounts of the crops of the Rabi 1950 and Kharif 1950-51.
(5) Had the defendants granted a valid lease of the entire land ? If not, what is the effect ?
(6) Under what circumstances had the plaintiff to make payment of lease money ?
(7) Could the defendants forfeit the advance of Rs. 10,000? If not, what is the effect ?
(8) Did the plaintiff surrender the lease willingly ? If not, what is the effect ?
(9) What was the value of the crops and had the defendant not to give credit of it to the plaintiff ?
(10) Were the defendants entitled to recover the entire amount of another lease from the plaintiff ?
If not, under what circumstances has the same been paid ?
(11) What should the decree be ?
8. On the basis of the evidence of the parties, the learned --trial Court disposed of both the suits by one judgment dated the 15th of September 1960, and dismissed both the suits with no order as to costs.
9. Haji Soomar Haji Hajan have filed Ist Appeal No. 48 .Of 1961 against the judgment and decree in Suit No. 55 of 1953 and Haji Faiz Muhammad has file) 1st Appeal No. 1 of 1961 against the judgment and decree relating to his suit bearing No. 21 of 1954.
10. Counsel for the parties agree that the suit of Haji Soomar Hail Hajan was dismissed on three technical grounds which were embodied in Issues Nos. 2, 18 and 19 in Suit No. 55 of 1953. The learned Judge held that the suit was barred by section 69 of the Partnership Act and was further barred by limitation because it was filed beyond three years and that he had no jurisdiction to try it in terms of section 11 read with section 3 (w) of the Dekhan Agriculturists Relief Act, 1879. The suit of Haji Faiz Muhammad has been dismissed on merits as well as on two technical grounds, namely, that it was also barred by lindtation and that Haji Soomar Haji Hajan were not liable to render accounts.
11. We may first examine the judgment with respect to the appeal of Haji Faiz Muhammad which is 1st Appeal No. 1 of 1961. His suit was filed with reference to the receipt, Exh. 66, .Dated the 30th of May 1950, on the 30th of March 1954, with the allegation that Haji Soomar Haji Hajan had forcibly taken possession of two crops which he had sown in pursuance of the oral lease of October 1949, and that they had under coercion obtained his signature on receipt Exh. 66, according to which the disputes relating to that lease had been settled. According to counsel for Haji Faiz Muhammad, the exact date on which possession of two crops was taken by Haji Soomar and I3aji Hajan is not known but that was in April 1950. The suit was filed on the 30th of March 1954; therefore, admittedly after more than three years of the alleged usurpation of the crops bu lit the cause of action, according to counsel, arose when an oral demand was made by Haji Faiz Muhammad that Haji Soomar Haji Hajan should render account with respect to the two crops. This demand, according to counsel, was made in April 1951 therefore, the suit was within time. Mr. Jamaluddin says that although according to the language of paragraph 16 of the plaintiff the defendants Haji Soomar Haji Hajan were required to render accounts but actually the purpose and object of his client was to get compensation for the value of the crops which were allegedly usurped and misappropriated ; therefore, according to counsel, Article 49 of the Limitation Act was applicable. According to that Article, the period of limitation !s three years from the time when the property was wrongfully taken or injured or possession of the property became unlawful.
In this case, if the facts stated in the plaint are accepted as correct, then the possession of the crops was unlawful from the first date, therefore, the period of limitation under Article 49 started to run from the date on which possession of the crops was allegedly taken in April 1950. Counsel says that the period of limitation did not start to run from the date of unlawful: possesssion of the crops but from the date when demands were--made and repudiated. According to counsel promises were in the beginning made in answer to the demands to pay compensation.
Therefore, counsel says, limitation began to run from each promi a which was made by Haji Soomar to pay compensation. Haji Soomar, according to counsel, repudiated the claim in April 1951; therefore, the period of limitation should be taken to run from that time. Counsel says that the possession of the crops should be taken to have become unlawful on the repudia--tion of liability by Haji Soomar Haji Hajan and that until then their possession could be said to be lawful.
12. The above reasoning of counsel is obviously unsound. The suit was undoubtedly barred by time, from the point of view which has been pressed by counsel for Haji Faiz Muhammad in these proceedings, because limitation began to run from the first day of taking forcible possession.
13. As to the liability of Haji Soomar Haji Hajan to, render accounts to Haji Faiz Muhammad, the learned trial Judge has observed as follows:- "The accounts were finally settled on 30-5-1950 (vide Exh. 66). There is no question of calling upon the defendants to render any accounts."
The above observations are based on the reasoning that possession of the crops is said to have been taken in April 1950, but the receipt, Exh. 66, was executed on the 30th of May 1950 and Haji, Faiz Muhammad has not denied that he signed it. His stand is that his signature was taken on it under coercion. The nature of coercion is disclosed in paragraphs 8 and 9 of the plaint of Haji Faiz Muhammad. According to them, the alleged coercion consisted in Haji Soomar Haji Hajan holding out "threats and inducements" and that these men were very influential persons in official and unofficial circles. We have no reason to disagree with the view taken by the trial Court that coercion for the execution of Exh. 66 has not been established and that therefore in the presence of the document, Exh. 66, there is no question of accountability. The consequence of these findings is that it is unnecessary to further examine 1st Appeal No. 1 of 1961.
14. In the suit from wbich Appeal No. 48/61 arises, as many as 20 issues were settled which have been reproduced above. Issues 2, 8, 11 and 15 were decided in the negative while issues 4 and 7 in the affirmative. Under issue No. 5 it eras held that the agreed rate was Rs. 25 per maund and that under issue No. 6 the trial Court reached the conclusion that the kabala (Exh. 69) was executed by the respondent and upon this finding the trial Court under issue No. 9 held that the respondent received Rs. 12,000, under issue No. ; 0 that the respondent executed the receipt for Rs. 12,OC0, and under issue No. 12 that the respondent delivered only 773 maunds of cotton pods against the delivery of the agreed quantity of 4000 maunds. Again under issue No. 13; the trial Court held that the respondent had received Rs. 28,000 and in this context further held under issue No. 14 that the respondent had agreed to adjust this amount against subsequent delivery of cotton pods. Under issue No. 16 the appellant was held to be entitled to receive Rs. 24,991-8-0 on account of damages and over-payment. However, while calculating the damages the Court held that 15th October 1950 was the date of breach because ft corresponded to 30th Assu 2007 and that the price of cotton pods was Rs. 30 per maund on that date. Under issue No. 17 it was held that the suit was maintainable in its present form. Under issue No. 18, the trial Court reached the conclusion that the suit was filed beyond time and under issue No. 19, that the Court at Hyderabad had no jurisdiction to entertain it. In the result, the suit was dismissed mainly because the trial Court held that the appellant was not a ,registered firm, that the suit was filed beyond time and that the Courts at Hl derabad had no jurisdiction to entertain it.
15. At the Bar, the learned counsel for the parties addressed us only on the legal grounds which are covered by issues 2, 18 and 19. The first contention related to issue No. 2 and was on the question as to whether the suit was barred by section 69 (2) and the Partnership Act, because at the time at which the kabala was executed in favour of "Seth Haji Hashmsni Factory", (hereinafter referred to as the `firm'), it was not registered as a firm. The suit was filed in the name of the appellant anti in paragraph 2 of the plaintiff it was averred that the appellant was registered under the "Partnership Act". The respondent had merely denied this allegation. The issue framed did not reflect the dispute decided by the trial Court as there is nothing In it to show that it was raised is the pleadings of the parties in this form. However, Hajl Hajan, a partner of the appellant firm, has stated that the original name of the cotton ginning factory was "Haji Hashim Ghaning Factory of Tando Allahyar" and that at present the name of the ginning factory is "Haji Soomar Haji Hajan Cotton Factory". He has also admitted that the firm " Seth Haji Hashmani Factory " commenced business in May 1950, that Haji Hashmani Factory was not registered and that there is no agreement of this partnership in writing.
So far as the registration of the appellant is concerned It cannet be disputed, for the registration certificate (Exh. 68)a has been brought on record to establish this fact. It is equally clear from It that the suit was filed after the registration of the appellant. The respondent admits that the partners of the appellant were the same persons who got the kabala executed "under coercion and undue influence". In these circumstances. Having regard to the evidence of Haji Hajan and that of the respondent, It follows that the partners did business as a firm. The respondent has not pleaded that the. 'firm' was dissolved, nor was any question put to Haji Hajan in this respect, nor was any allegation made that the appellant could not enforce its rights tinder the kabala. All that is disclosed in the evidence is that there is only a change in the name of the firm. The partners have the same collective entity and were carrying on the same business. Tfi In the circumstances, how was the bar of section 69 (2) of the Partnership Act pressed into service, is not understandable, for the provision only affects the institution of a suit and not the validity of any contract entered into by an unregistered firm. The agreement of partnership, which was oral, also remain unaffected by the non-registration of the 'firm' (See Usman v.
Haji Umar Aaji Ayub and another (1).
16. The trial Court has held that the 'firm' had become defunct . As observed earlier, there is no evidence to sustain this finding, for it is abundantly clear that the same partners, who constituted the earlier firm, are carrying on business in a different name; accordingly there is no justification for assuming that the 'firm' had been dissolved. The trial Court his erroneously concluded from the language of section 69 (2) of the Partnership Act that since the'firm' was not registered, it could not validly enter into contracts with strangers. On this ground, the issue has been decided against tha appellant. This is not a correct finding and we hold for the foregoing reasons that the kabala was validly executed in favour of the 'firm' and that the bar under section 69 (2) of the Partnership Act does not apply. Consequently, this issue is decided in favour of the appellant.
17. The second contention relates to limitation and falls under issue No. 18. The respondent has pleaded in his written statement that the suit was filed out of time and in the circums--tances of the case the burden of the issue as framed was rightly placed on him. According to the averment in the plaint, delivery had to be effected from 15th Bado 2007 to 30th Assu 2007 and that the last date corresponded to 11th November 1950. Nowhere in the written statement has the respondent taken the stand that the last date of delivery was the 15th of October 1950, and not the 11th of November 1950. Haji Hajan has stated in his evidence that the respondent failed to deliver the entire quantity of cotton pods on 11th November 1950; therefore, he had to undergo a loss of Rs. 50 per maund for the balance quantity of 3227 maunds which remained undelivered. No question was put in cross--examination to Haji Hajan that 30th Assu 2007 did not correspond to 11th November 1950. The respondent also led no evidence on this point. At the time of arguments, the learned counsel for the respondent, however, produced diaries for the inspection of the trial Court to dispute the above fact. From the side of the appellant its counsel also produced a'Jantary' in support of its stand that the date corresponded to 11th November 1950 but the trial Court held that 30th Assu 2007 did not correspon to 11th November 1950. We are unable to see how the trial Court could take judicial notice of the diaries under section 57 of the Evidence Act when they were not one of those document which are enumerated in that section. Additionally, the trial Court also relied on Exhs. 71 and 71/1 in coming to the con--clusion that the date of breach was not 11th November 1950 but 15th October 1950. The entries in these documents were made by Mahboob Ali, who was a clerk of the appellant and in the column under the caption 'promise' the figures "1/9 to 15/10" are written with no particulars to explain as to what was meant by them. However, in the same document there are
(1) PLD 1966 SC 328 other entries relating to the delivery, which was made from time to time, and the advance payments which were made to the respondent. The last date of delivery was 25th October 1950, and of the last payment was 26th October 1950. It is nobody's case that the period of delivery was extended by mutual agreement. If we take the 15th of October to be the date of breach, in accordance with the figures 15/10" which appear in the column under the caption 'promise', then how can it be the last delivery made on 25th October 1950 ? It is, therefore, not possible to conclude from the course of dealing between the parties as entered in this document that 15th October 1950 was the date on which tt-,e delivery had to be completed. The onus of establishing this issue was on the respondent and in the absence of any evidence led to establish this issue, he has failed to discharge the burden. Accordingly, it is decided against the respondent. The plea of limitation, therefore, fails.
18. The third legal contention relates to issue No. 19. According to it, the point for consideration is whether the suit could be filed in the Court at Hyderabad. Chapter 11 of the Dekhan Agriculturists Relief Act, 1879 relates to suits of which the pecuniary limits are enumerated anal the present suit is not one which can fall in the category of those suits. However, Chapter III deals with suits and other proceedings, to which agriculturists are parties and it is this chapter which can apply to the present suit. Section 11 of this Chapter deals with the institution of a suit in the Court within the local limits of whose jurisdiction the defendant, who is an agriculturist, resides. It reads as under "(lI) Every suit of the description mentioned in section 3, clause (w), may, if the defendant, or, when there are several defendants, one only of such defendants, is an agriculturist, be instituted and tried in Court within the local limits of whose jurisdiction such defendant resides, and not elsewhere.
Every such suit in which there are several defendants who are agriculturists may be instituted and tried in a Court within the local limits of whose jurisdiction any one of such defendants resides, and not elsewhere.
Nothing herein contained shall affect sections 22 to 25 (both inclusive) of the Code of Civil Procedure."
The language of this section shows that it is only the category of suits, which is covered by section 3 (w) in Chapter II, for which the place of institution of a suit at a place in which the agriculturist resides, is a mandatory requirement. Section 3 (w) enumerates three classes of suits, and with a view to convey a clear idea of the nature of those suits, this provision is reproduced as under :- "(w) suits for the recovery of money alleged to be due to the plaintiff on account of money lent or advanced to, or paid for, the defendant. Or as the price of goods sold, or on an account stated between the plaintiff and defendant, or on a written or unwritten engagement for the payment of money not hereinbefore provided for;"
The learned counsel for the appellant urged that the earnest money, which was in the nature of an advance, was covered by the words "advanced to" in the category of suits; accordingly the suit should have been filed in a Court at Mirpuskhas where the respondent resided and not at Hyderabad. He also invited our attention to the dictionary meaning of the word 'advance', which means either payment before hand or loan and, according to him, it was the first meaning of this word which covered the payment of earnest money.
19. In order to examine the meaning of the words "advanced to" reference may with advantage be made to the marginal note to section 12 of the Dekhan Agriculturists Relief Act, which reads "History of transactions with agriculturist-debtor to be inves--tigated."
In this section, those classes of suits are enumerated which are mentioned in section 3 (w) of the Act. The words "agriculturist debtor" in the marginal note should be noted because some assistance can be received for interpreting the words "advanced to", which occur in section 3 (w), as meaning those transactions in which the agriculturist stands to the position of a debtor. This is also consistent with the preamble of the Act, which gives the object for enacting it as one to "relieve the agricul--turist classes in certain parts of the Dekkhan from indebtedness. The word 'indebtedness' in the preamble shows the state of being In debt ; therefore, while construing the words "advanced to or paid for, the defendant", their meaning should be under--stood consistently with the legislative Intent. This is clear from the following passage in Maxwell's Interpretation of Statutes, 11th Edition, at page 16:- "It is an elementary rule that a thing which is within the letter of a statute will, generally, be construed as not within the statute unless it be also within the real intention of the Legislature, and the words, if sufficiently flexible, must be construed in the sense which, if less correct grammatically, is morn in harmony with that intention."
Accordingly, with a view to harmonise with the legislative intent the words "advanced to or paid for, the defendant", which are of wider import and follow the word 'lent', should be construed ejusdem generis with the preceding word 'lent' and should be given the meaning which the word 'lent' conveys; therefore, the words "advanced to" are restricted to the category 0 of those transactions which arise out of money lending and in concept are synonymous with 'debt' but would not include earaest money which was paid not as a loan but as an advance for the due performance of the contract, Section 11 will, therefore, have no application and, in our view, the suit filed in the Court at Hyderabad was properly instituted. The trial Court has not consider=d the meaning of the words 'advanced to' in the light of what we have observed and reached the wrong conclusion that earnest money was also included in the term 'advanced to' and held that since the appellant was not able to establish that the respondent resided in Hyderabad the suit was not maintain--able.
This issue is accordingly decided in favour of the appellant.
20. In view of our conclusion that the contract was not executed under "coercion and undue influence", the learned .Counsel for the respondent was unable to impeach the findings on fact as to the execution of the contract, payment of advance moneys, delivery of a part of the agreed quantity of cotton pods, particularly in the face of the overwhelming evidence to show that the respondent had partly performed the contract and had committed breach by not supplying the full quantity of cotton pods.
21. However, one question remains to be considered and that is the amount of damages to be awarded to the appellant. The trial Court reached the conclusion that on 15th October 1950, the rate of cotton pods was Rs. 30 per maund and thus awarded a sum of Rs. 16,135-8-0 as damages.
We have earlier held that breach was not committed on 15th October 1950 but on 11th November 1950; therefore, the determination of damages at that rate cannot stand. Haji Hajan in his evidence has stated that he had undergone a loss of Rs.15 per maund by the non-delivery of 3227 maunds of cotton pods and had suffered loss to the extent of Rs. 48,405 because the appellant had entered into con--tracts for the supply of this quantity of cotton pods with the purchasers in Karachi and the appellant had to purchase cotton pods to fulfil those contracts. No evidence was led to show the rate at which the appellant had entered into contracts with the purchasers at Karachi and nothing is on record to prove the rate at which cotton pods were purchased by the appellant. It is also not known as to what steps were taken to mitigate the loss. In this view of the matter, the following observations of their Lordships of the Supreme Court in The Province of West Pakistan v.
Messrs Saaz & Co. (1) are fully applicable to this case : - "This section (section 73 of the Contract Act) embodies the same principles as those given in section 50 of the English Sale of Goods Act, where it is stated in subsection (3) that the measure of damages is to be estimated, where there is an available market for the goods in question, 'by the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for acceptance, then at the time of the refusal to accept'. This rule has also been e.Splained in the case of Barrow v. Arnaud (1846) 8 Q B 595 as follows :- 'Where a contract to deliver goods at a certain price is broken, the proper measure . Of damages in general is the difference between the contract price and the market price of such goods at the time when the contract is broken, because the purchaser, having the money in his hands, may go into the market and buy. So, if a contract to accept and pay for goods is broken, the same rule may be properly applied for the seller may take them into the market and obtain the current price for them: (1)PLD1964SC625 This principle !s equally applicable in this country, as has been pointed out by the Letters Patent Bench. In the cases of Jamal v. Moolla Dawood Sons & Company L R 43 1 A 6 and Erroll Mackay v.
Maharaja Dhiraj Kameshwar Singh and another AIR 1932 P C 196 the Judicial Committee of the Privy Council followed this principle in cases from British India.
Upon this rule, the Government was clearly not entitled to delay the sale for nearly another 2J months by not disposing of the commodity concerned between the 14th of November 1949, and the 1st of February 1950. During this period the goods must be deemed to have been lying at the risk of the Government. Any fall in the market price or deterioration in the quality, which might have occurred during this period, must be borne by the seller who did not take immediate and prompt steps to mitigate the loss by selling the goods on the date of the breach. As observed by the Privy Council in the case of Jamal v. Moolla Dawood Sons & Company it is the undoubted law that the plaintiff who sues for damages owes the duty of taking all reasonable steps to mitigate the loss consequent upon the breach and cannot claim as damages any sum which is due to his neglect."
It was further held as under :- "In the circumstances, we agree with the conclusions of the Letters Patent Bench that the damages recoverable by Govern--ment had to be computed on the basis of the difference between the contract rate and the market rate prevailing on tile date of the breach and on this basis the damage teas rightly calcu--lated at Rs. 26,133 which, after setting off the amount of security deposit came to Rs. 16,133. No just exception can, therefore, be taken to the decree passed by the Division Bench of the High Court."
Accordingly the appellant is not entitled to the loss suffered by it in repurchasing cotton pods for fulfilling its contract with the purchasers at Karachi, but only entitled to the difference between the market price and the contract price. But neither is there any evidence on record to show the market rate of cotton pods prevailing on the date of breach, nor on the nearest to It. Therefore, it is not possible to determine the difference between the market rate and the agreed price and that damages cannot be determined in this case. In similar circumstances, a Division Bench of the Karachi Seat in M. Younus & Co. v. Hajiani Mariam Bai and others (1) did not even award nominal damages In the absence of evidence reflecting the damage or loss sustained by the plaintiffs. The relevant observations areas under: "This case is similar to the case reported in AIR 1923 Cal. 49 considered above and as mentioned by us when dealing with that case we are reluctant to fix any amount be it nominal or otherwise reflecting the damage or loss sustained by the plaintiffs, particularly in the total absence of any evidence to show whether the resale of the goods had in fact brought about a loss rather than a profit"
(1) PLD 1963 Kar. 791 This principle is equally applicable to the present case and disentitles the appellant to nominal damages.
22. The appellant is, however, entitled to the refund of Rs. 8856-8.0 and the suit !s decreed to this extent with costs throughout, while the dismissal of the rest of the claim is maintained.
23. On the conclusion of arguments by the learned counsel for the parties we had orally announced on 24th September 1971 the dismissal of Appeal No. 1/61. The above are the reasons for it. The judgment in Appeal No. 48/61 was reserved. We accordingly allow it in part and modify the judgment and decree to the extent indicated above.