1. ' Plaintiffs in this suit claim a total sum of Rs,4,99,641.97 from the defendants by way of refund of the advance of Rs,1,40,000 in the context of an agreement to supply wheat straw by the defendants, damages for breach of contract and interest. Shortly, it is urged that the plaintiffs are engaged in the manufacture of Corrugated Board and being a public limited company their present name has been assumed in substitution of the previous one viz. Dada Corrugated Board and Paper Mills Limited and such comes about with the permission of the Government of Sindh w,e,f. 18-10-1973. A photostat copy of the permission has been attached with the plaint. The plaint recites that a contract was concluded between the plaintiffs and the defendants (defendant No,1 acting for the defendant No,2), on 9-3-1972 for the supply of 100,000 maunds of wheat straw at the rate of Rs,3.75 per maund by the defendants to the plaintiffs, deliveries commencing on 1-6-1972 with an option to the plaintiffs to lift an additional quantity of 50,000 maunds. A sum of Rs,90,000 was paid by the plaintiffs to the defendants in advance. Supplies worth Rs,630 were made on or about 28-5-1972 i,e.
2. Before the commencing date of 1-6-1972. However, on 2-8-1972 the agreement of 9-3-1972 was novated for similar supplies but the rate was enhanced to Rs,4.75 per ton and deliveries were to commence from March/April, 1973. Advance amount of Rs,90,000 was also duly adjusted.
3. Subsequently a further sum of Rs,50,000 was paid to the defendants in consideration whereof the defendants allegedly agreed to commence delivery on or after 21-5-1973 and to complete the same by 31-7-1973. An addendum to such effect was inserted at the bottom of the subsequent agreement dated 2-8-1972 aforesaid. It is next pleaded that on 15-5-1973 a meeting was held between the parties when "it was discussed and agreed that the supply of wheat straw may be postponed till December, 1973 on account of the delay in the erection of the plaintiffs' factory".
4. However, it is maintained that the defendants, through their letter dated 25-5-1973, came out with the plea that they had not agreed to the postponement of the delivery whereupon the plaintiffs, per their letters dated 4-6-1973 and 12-6-1973, proposed to discuss the programme for lifting the deliveries. The defendants, failing to respond, through letter dated 14-6-1973 were required by the plaintiffs "to start the deliveries of the contracted quantity of wheat straw immediately". Ultimately the defendants having totally failed, legal notice was addressed and the present suit was filed.
5. ' The defendants in their written statement have denied the allegations of the plaintiffs except in so far as the same are expressly admitted. They say that it were the plaintiffs who never placed themselves in a position to lift the contracted deliverid, their factory having taken more time in being put up than originally anticipated and that the plaintiffs themselves were in breach, resulting in heavy losses to the defendants. While no counter-claim had been lodged forfeiture of the advance made has been claimed and the suit is urged as liable to dismissal. On the pleadings of the parties the following issues were framed:-- "(1) Whether the defendants were ready and willing to perform their part of the contract dated 2-8- 1972?
(2) Whether the amount of Rs,90,000 was paid by the plaintiffs to the defendants in three instalments on 9-3-1972 and on 3-6-1972 and on 23-6-1972 to keep the contract dated 9-3-1972 alive? . (3) Whether numerous truck loads of wheat straw, except one truck carrying 168 maunds and 24 seers of wheat straw, sent by the defendants to the plaintiffs in pursuance of the contract dated 9- 3-1972 were returned by the plaintiffs who were not inclined to honour their commitment of purchasing the wheat straw?
(4) Whether the plaintiffs were not willing to take deliveries of the wheat straw even after the execution of the contract dated 2-8-1972?
(5) Whether it was agreed between the parties on 15-5-1973 in a meeting that supply of wheat straw be postponed till December, 1973 on account of delay in erection of plaintiffs' factory?
(6) Whether the defendants failed and neglected to tender the delivery of the contracted goods to the plaintiffs?
(7) What should the decree be?"
6. ' In evidence only plaintiffs have examined one witness, the defendants failing to lead any evidence and their side having been closed. Even so, the learned counsel for the defendants maintains that the plaintiffs must succeed on their own evidence and cannot take advantage of lack or absence of evidence from the side of the defendants. There is no denying the legal proposition that in order to succeed a claimant before a Court of law has to independently establish hip rights and cannot succeed in obtaining a decree solely on the basis of the weaknesses, lacunas or even total absence in or of the defence.
7. Issues Nos. 1 to 6: ' I have minutely gone through the evidence led in the suit from the side of the plaintiffs, inclusive of the documents relied upon by or confronted to their solitary witness. It is manifestly clear that the agreement dated 9-3-1972 was substituted through that dated 2-8-1972 largely because the plaintiffs' factory had not been erected within the expected period of time. However, not everything turns on that and what has to be seen is as to who was in breach of the novated agreement dated 2-8-1972 and what is the effect there of.
8. ' In the above context, first of all, it is to be observed that the contraints on the part of the plaintiffs regarding the acceptance of deliveries are implicit in the novated arrangement. Thus it is categorically brought out in the Agreement dated 2-8-1972 (Exh. 14) that the deliveries shall "commence from March/April, 1973 and under no circumstances will the buyers lift delivery prior to that date. The sellers will not deliver more than 20 (Twenty) truckloads per day". The contractual price itself was enhanced to the tune of Re.1 per maund from Rs,3.75 to Rs,4.75. This itself underwent revision on 11-4-1973, when an addendum of that date was inserted at the bottom of the novated contract dated 2-84972 the insertion admittedly being "in consideration of a further amount of Rs,50,000 towards the purchase price" the defendants correspondingly agreeing "to commence deliveries on or after 21-5-1973 and to complete (it) by 31-7-1973" (para. 7 of the plaint). Still, the sellers were not to "supply more than 20" (twenty) truck-loads of wheat straw per day"
9. (Addendum). This was in the background of defendants' letter dated 7-3-1973 (Exh.16/1), produced by the plaintiffs themselves, wherein the defendants, recounting that deliveries could not be lifted by the plaintiffs in the preceding year due to the plaintiffs not going into production, expressed satisfaction that the plaintiffs had then agreed to accept deliveries and requested for purchase order and authority letter so that supplies could start in the first week of April, 1973. Copy of this letter (Exh.25) when confronted to plaintiffs' solitary witness in cross-examination has, however, surprisingly been denied receipt of and was admitted only subject to objection. Next, it is to be seen that the plaintiffs on 10-5-1973 wrote a letter (Exh.16/2) to the defendant No,2 requiring them to see Ali Muhammad Dada, the Chairman of the plaintiffs on 12-5-1973. Then on 16-5-1973 the plaintiffs wrote a letter of that date (Exh.26) to the defendants contents of which are as under:-- "This has reference to the discussions held between us at factory-site on the 15th instant, when our production schedule was also discussed and it was agreed that due to delay in the erection of the plant and equipment of our project, the supply of wheat straw as per our contract dated August 2 1972 may be postponed till December, 1973. We would also advise you to please see the undersigned at our office at Sattar Chambers, on any working day during office hours, for further discussion on the subject."
10. (The underlining is added here).
11. ' On 22-5-1973 the plaintiffs requested the defendants (Exh.16/3) to acknowledge receipt of such letter dated 16-5-1973. Through letter dated 25-5-1973 (Exh.16/4) the defendants maintained that the suggestion to postpone the delivery schedule till December, 1973 had emanated from the plaintiffs for "the reason of delay in erection of plant." It was also said that the plaintiffs had failed to take delivery on 21-5-1973 involving losses to the defendants because of the rainy season, advances made to Zamindars and truck owners. A reply was solicited from the plaintiffs. Per letter dated 4-61973 (Exh.16/5) defendants' letter dated 25-5-1973 was acknowledged and a visit, on 6- 6-1973 at the plaintiffs' office was solicited "to discuss the programme for lifting deliveries." On 12-6- 1973, with reference to letter dated 4-6-1973, request for a call, on any working day, at the plaintiffs' office was repeated (Exh.16/6). Apparently, without awaiting for a reply to the letter dated 12-6-1973 (Exh.16/6), the plaintiffs suddenly, on 14-6-1973 (Exh.16/7) asked the defendants "to please start sending the deliveries of the quantity as per agreement, immediately, failing which we will not be responsible for any loss to be sustained by you, which please note" (underlining added). Through letter dated 26-6-1973 (Exh.16/8) the plaintiffs regretted that the defendants had "failed to provide the schedule of supply of quantities contradicted" and threatened that they would, "arrange for the quantity for our trial run purpose on monthly basis from any other alternative source in open market and you shall be liable for the financial losses on account of a difference between the market rate as may be prevailing on the date of purchase and the contracted price". In the meantime, on 26-6-1973, the defendants also addressed a letter of their own (Exh. 16/9) saying that the plaintiffs' letter dated 14-6-1973. Had reached them only on 21-6-1973. The defendants recounted the various factors which, according to them, involved defaults and breaches on the part of the plaintiffs, urging that at least six to eight weeks were required to martial the actual work of supply, that the advances made to them had been forfeited, that the plaintiffs had failed to accept supplies from 21-5-1973, that the defendants' overtures in attempting to call at the plaintiffs' office in response to letters dated 4-6-1973 and 12-6-1973 had failed because of, on both the occasions, the defendant No,1 being told by one Mr. Liaroon that Ahmed Seth was not available, that the defendants were only a laison between the plaintiffs and the growers and that, on account of breaches, the defendants had suffered a loss of Rs,3,15,00() details whereof were given in such letter itself. On 2-7-1973 (Exh. 16/10) the defendants, on receipt, repudiated the contents of plaintiffs' letter dated 26-6-1973 (Exh. 16/8) saying that they had already lodged their claim on the plaintiffs per their letter dated 26-6-1973 (Exh. 16/9). On 9-7-1973 (Exh.17) the plaintiffs repudiated the allegations in defendants letter dated 26-6-1973 (Exh. 16/8) and, inter alia, maintained that the defendants had suffered no losses and on the contrary were holding a sum of Rs,1,40,000 from the side of the plaintiffs. Demand was made to commence the supply of the contracted goods failing which the defendants would be liable in damages. The defendants responded through their own letter dated 13-7-1973 (Exh. 18), reiterated their claim of Rs,3,15,000 and re-capitulated that the plaintiffs had even refused to accept their proposal, apparently extended in the meantime, to go to arbitration or even to accept the intervention of their own Chairman, All Muhammad Dada. The matters seem to have tarried here when legal notice dated 10-12-1971 (Exh.19) was addressed by the plaintiffs' counsel to the defendants requiring that the supply of the contracted goods be started within seven days failing which it was said that the plaintiffs would be constrained to purchase the contracted goods at the defendants' risk as to costs and consequnces making the defendants liable in damages together with refund of the amount of Rs,1,40,000. The defendants responded on 17-12-1973 (Exh. 20) denying all the allegations and once again offering mediation through the abovesaid All Muhammad Dada or even arbitration. This was followed by another legal notice dated 16-1-1974 (Copy .Exh. 21) from the side of the . Plaintiffs (no postal receipt . Produced in spite of challenge in cross-examination) wherein claim of damages was raised on the basis of an alleged market price prevalent on 26-6-1973 at the rate of Rs,7 per maund and resulting in damages in the sum of Rs,2,25,000 on a supply of 100,000 maunds of wheat straw and Rs,1,12,500 for additional (and optional) 50,000 such maunds together with refund of advance of Rs,1,40,000 bringing the total to 4,77,500. To this figure, of course, in the suit interest also has been added in bringing of the total claim of Rs,4,99,641.97.
12. ' Now, plaintiffs' witness has admitted that their factory was re-erected after a year's delay and came into operation only in the beginning of 1974 though he has repudiated that the plaintiffs were in no position to take deliveries as stipulated. He has produced no Power of Attorney nor has he shown himself to be in the know of facts on his own. By designation he is manager at the plaintiffs' factory. The witness states that all agreements in suit were concluded with the preyious management running the Company in a different name. This makes no difference, at law, because the plaintiffs, as a legal entity, have remained the same. He has denied that performance was extended till the end of December, 1973 though in the legal notice dated 10-12-1973 (Exh. 19) the defendants were finally called upon to start deliveries within 7 days of receipt and earlier on in plaintiffs' own letter dated 16-5-1973 (Exh. 26) it was stipulated as agreed that the supply may be postponed till 'December, 1973. Prevailing market rate of the contracted goods is also not disclosed in the testimony though such rate Rs,7 per maund in the final notice dated 16-1-1974. (Copy Exh.21) has been claimed as on 26-6-1973, the witness himself remaining totally silent on that score. On this state of the record it is to be examined as to what is the effect of the oral as well as the documentary evidence in the case, some of the material documentary evidence consisting of copies, not objected to at the time of their being exhibited and the remaining not being adduced through scribes or authors or not being proved as regards contents in any specific details.
13. Qanun-e-Shahadat, 1984, is a Code complete in itself as to the mode of proof of facts by way of oral and documentary evidence. Oral evidence has to be of those who have themselves witnessed facts (inclusive of events, state of things and condition of mind etc.) if such were capable of being seen, heard them if susceptiblc.To hearing or perceived them otherwise if the facts could be so perceived through the senses or have subscribed to or participated in relation the same. Hearsay is no evidence. Documents are to be proved through their authors or scribes or witnesses in whose presence such were written or signed or as are acquainted with the writing or signatures of the author or through expert evidence or by comparison of signatures or upon admission etc. Therefore, production of documents through authors or scribes, albeit being the best, is only one of the methods of proof though it is always expected that best evidence in a case would be produced, failure giving rise, where relevant, to adverse inferences. A very useful discourse on the point is to be found in the judgment of Muhammad Afzal Lone, J., in Agro Marketing Corporation Ltd. v. Pakistan, PLD 1982 Lah.
20. At the same time, objections as to admissibility of documents are to be raised at the earliest and usually at the time such are exhibited and admitted in evidence. Failure to timely object or at the earliest opportunity therefore, may foreclose such objections at a later stage of the proceedings. The rule is based on common sense and good policy. A prompt objection puts the adversary on due notice and does not result in denial of opportunity to the opposite number to satisfy the requirements of proof. A document admitted in evidence without objection and exhibited in terms of Order XIII, rule 4 is a proved document and its admissibility cannot, except for good reason, be questioned at a later stage. There is a good deal of case-law on the subject but for the present only the following may be noted:--
(i) Gopal Das v. Shri Thakurji, AIR 1943 Privy Council 83.
(ii) Shahzadi Begum v. Secretary of State, 34 I.A.
14. 194.
(iii) L. Suraj Bhan v. Hafiz Abdul Khaliq, AIR 1944 Lah.l.
(iv) Muhammad Yusaf v. Hafiz Abdul Khaliq, AIR 1944 Lah.
15. 9.
(v) Abdullah v. Abdul Karim, PLD 1968 SC 140.
(vi) Malik Din v. Muhammad Aslam, PLD 1969 SC 136.
(vii) Muhammad Hussain v. Ghulam Ali, PLD 1977 Kar.
16. 285.
(viii) Karachi Municipal Corporation v. Ali Hussain, 1982 CLC 93.
17. However, objection to admissibility of a document even though not expressly taken does not necessarily constitute admission either in totality or as to contents. Such an objection may be inherent in a situation where relevant facts have been denied in the pleadings and are in issue (See Abdul Razzaq v. Fatima Bai 1981 CLC 1083) or authorship not being disputed contents alone are questioned (Refer Madholal Sindhu v. Asian Assurance Co. Ltd. AIR 1954 Born. 305). Likewise, where a document is admitted, merely dispensing with formal proof and exhibited, the party admitting does not thereby ipso facto accept the truth of the contents and would be free to question the same by way of cross-examination or otherwise, which would not be within its entitlement if the document is admitted and marked on admission, without reservation, resulting in the contents not only being evidence but also taken to be admitted (Lionel Edwards Ltd. v. State AIR 1967 Cal. 191). A document admitted in evidence, such as a letter written by a witness, is no evidence of the facts therein stated and the only legitimate use to which the letter can be put would be to use it in cross-examination for the purpose of discrediting the witness, if what he had stated was inconsistent with his evidence. Similar is the position of contents of a telegram which per se are not evidence of the facts stated therein. Judah v. Isolyne Shrojbashini Bose AIR 1945 Privy Council 174). There is a distinction also between proof of a document, upon its being exhibited, and its authorship. Where the document is admitted subject to objection the position is self-evident (Fore-most Trading Company v. Caledonian I.C. Limited, PLD 1988 Kar. 131). Likewise, merely because a document has been admitted in evidence and exhibited such fact alone, whereupon the record source of the document is disputed, would not constitute proof of its execution by the purported executant. (Sec Kishwardas v. Deputy Settlement Commissioner, Mirpur Khas 1985 CLC 1385). In Bengal Friends & Company v. Gour Benode Saha & Company PLD 1969 SC 477, regarding authenticity of account books, accepted in evidence, and their effect this is what the Supreme Court had to say:- "In the affidavit of the respondent sworn on the 25th August 1958, in paragraph the genuineness of the record, Exhibits G.B 1 to G.B.10, is affirmed, but this bald statement did not constitute proof of the entries in these series unless they were in his handwriting and he swore to the correctness of the transactions mentioned therein."
18. ' In Muhammad Yousuf Khan Khattak v. S.M. Ayub PLD 1973 SC 160, Hamoodur Rehman, C.J. Said:-- "There is no dispute as to the principles enunciated in these cases; but the learned counsel for the respondent contthids that, where nobody disputes the signature or the writing in the document nor raises any objection to the admissibility of the document into evidence, no question of proof arises, one is called upon to prove only those facts on which issue is joined."
19. ' Dissenting, Sajjad Ahmad, J., observed:-- "I am of the view that even if such documents are brought on record and exhibited without objection, they remain on the record as "exhibits" and faithful copies of the contents of the original but they cannot be treated as evidence of the original having been signed and written by the persons who purport to have written or signed them unless the writing or the signature of that person is proved in terms of the mandatory provisions of section 67 of the Evidence Act. If instead of the copy Exh. P-1, the original form "E" which formed the primary evidence, had been exhibited on the record without proving as to who was its author can it be argued that by merely exhibiting it, the document should be taken for granted as bearing the signatures of the appellant without proof that in fact it was written and signed by him. The onus obviously lay on the respondent to prove this fact and his failure to prove it did not cast any responsibility on the appellant to negatively disprove it."
20. ' Anwarul Haq, J., however, decided that case on facts, finding that objection to the document was actually though subsequently taken and even in the attested copy signatures of the appellant were spoken of as "over-written". The learned Judge then concluded: "In these circumstances, it was obviously necessary for the Election Tribunal to have the signatures and the handwriting of the appellant proved in accordance with the mandatory provisions of section 67 of the Evidence Act but this was not done. The onus of proving this document lay on the respondent, and the fact that the appellant or his counsel did not take any specific objection at the time of the production of this document does not mean that the same stands duly proved in view of the patent overwriting existing in the original and noted in the attested copy."
21. ' Such judgment was followed by a Division Bench headed by Dorab Patel, J. In this Court in Deutsche Dampschiff Faharts-Gessellschaft v. Central Insurance Co. Limited PLD 1975 Kar. 819, where the Bench found documentary evidence in admissible when produced through a witness, admittedly, having nothing to do with the entries sought to be proved through him. Fakhruddin G.
22. Ebrahim, J. In Muhammad Hussain v. Ghulam All PLD 1977 Kar. 285, however, distinguished the view in Re Muhammad Yousaf, observing that the case did not relate to the mode of admissibility of the document but, as to proof of signatures under section 67 of the Evidence Act. A learned Single Judge of the Lahore High Court in Mst. Mehari v. Noor Bhari PLD 1978 Lah. 771, distinguished the case of Muhamamd Yousuf as majority view only and preferred to follow Abdullah v. Abdul Karim PLD 1968 SC 140. The Supreme Court itself in Ghulam Muhammad v. U.S. (AID) 1986 SCMR 907, termed the case of Muhammad Yousuf exceptional, "in which the authenticity of the document itself was doubted" and no such suspicion in the matter before them existing found that case distinguishable. In a more recent enunciation viz. Muhamamd Aslam v. Gulraj Begum 1989 SCMR 1, the Supreme Court Bench, consisting of five Judges, referring to bulk of the above case-law, opined that mode of proof of a document being a question of procedure was capable of being waived and where objection as to manner of proof was not taken at the time the same was 'sought to be proved in the trial Court and such was freely referred to, objection was not open subsequently in appeal.
23. Thus it can safely be concluded that a document, on being exhibited without contest, is a proved document for all purposes but that is so only when authorship is not in question in the case or is impliedly or expressly proved and the contents, not otherwise in dispute, .Prove themselves e.g. In a receipt or deed of sale etc. At the same time, proof of a document is not the equivalent of its relevancy; the two are independent concepts. Likewise, admissibility of a document in evidence is not synonymous with its evidential value or vice versa. See Agro Marketing Corporation Ltd. v.
24. Pakistan ibid. ' It is on the basis of the foregoing formulations that the documentary evidence in the suit is to he assessed. In so far as the contract itself and the payments made in relation to it, as evidenced by separate receipts, are concerned none at any stage has denied the same and such have been exhibited and admitted in evidence without objection. Aggregate advance payment of Rs,1,40,000, in the context of the contract, to the defendants is thus a proven fact.
25. The next question in the case is as to which of the parties was in breach and what is the evidentiary value of the correspondence between them, which again has been exhibited without demur. Apart from the fact that such correspondence has been admitted in evidence without objection from, the defendants no question at any time was raised about such correspondence not having been exchanged nor did the defendants deny their signatures on such exhibits as purported to hear them. Original and exhibited letters from the defendants are thus proved documents.
26. Correspondingly, many of these letters refer and are even in response to the exhibited copies of the correspondence emanating from the plaintiffs. Such copies also have been exhibited without objection. In this state of the record, it must be found that the relevant exhibits in the correspondence were proved to have been authored by those who purported to have signed them and besides bare recitals in such correspondence, as distinguished for veracity thereof, also stand proved. However, whether the contents of these documents were proved as correct factually is another matter and shall have to be decided in totality and upon preponderance of evidence.
27. ' It has already been seen that the plaintiffs themselves had been postponing the time of delivery largely because their factory had not been set up. Such fact even resulted in an earlier contract being rescinded and the current one superseding the same. Then, in course of time, the defendants objected and pointed out that several weeks' time would be required by them to commence supplies before the plaintiffs decided to lift deliveries because of necessary arrangements with the growers and truck owners they having, allegedly, already suffered in the matter of advances earlier given but no corresponding supplies having been agreed to be entertained by the plaintiffs. This is manifest from the letters the defendants wrote and these facts are not denied in the correspondence attributable to the plaintiffs and even in oral testimony. As late as on 16-5-1973 (Exh. 26) the plaintiffs were seeking extension of the delivery period till December, 1973. On 25-5-1973 (Exh. 16/4) the defendants pinned the burden of repeated postponements on the plaintiffs. This, apparently, alerted the plaintiffs and thereupon followed several letters from them, as detailed above, culminating in the letter dated 14-6-1973 (Exh.16/7) seeking immediate commencement of deliveries by the defendants. This was also, as explained by the plaintiffs in their subsequent letter dated 26-6-1973 (Exh.16/8), merely for their tfial run. It is thus obvious that, in the face of persistent delays and seeking of time on the part of the plaintiffs, no sufficient time was given to the defendants to arrange for immediate supplies, the defendants having uncontrovertedly maintained (see Exh.17) that adequate prior intimation would be needed.
28. Besides the defendants had been led into complacancy, shortly before, by the plaintiffs themselves seeking commencement of deliveries unequivocally in December, 1973. No cogent explanation of these failings has been provided in oral testimony either, from the side of the plaintiffs. It cannot, therefore, be said that the defendants were clearly in breach. Even if there was breach on their part, it was not unaided by the plaintiffs, who were contributory to it.
29. Alternatively, assuming the defendants to be in breach, it has next to he seen as to whether the plaintiffs have been able to establish any damage in terms of section 73 of the Contract Act. Now, section 73 makes the party in breach liable to compensation for any loss or damage caused by the breach, which naturally arose in the usual course of things or which the parties knew, when they made the contract, to be likely to result from the breach of it. Such compensation is not to be awarded for any remote or indirect loss or damage and in estimating the loss or damage the means which existed of remedying the E inconvenience caused by non-performance of the contract arc to be taken into account.
30. ' Mr. Lqbal Ahmed has urged firstly that for assessing loss or damage arising from a breach of contract it is necessary that the loss or damage, has actually been suffered or sustained and secondly, such has to be proved by positive evidence. As to the first, he has contended that the plaintiffs have never claimed that because of breach, if any, the plaintiffs were driven to purchase the contracted goods from the market and thus suffered any loss. The enquiry, according to him, should stop here and in the absence of proof of actual loss no further determination need be made as to what was the prevailing price of the contracted goods on the date of breach. Next, but alternatively it is contended that no- market price was proved in evidence and, therefore, even if such was relevant, on breach having been established, there is no yardstick to assess the compensation. In support of the first contention, learned counsel relies on West Pakistan Industrial Development Corporation Karachi (W.P.I.D.C) v. Aziz Qureshi 1973 SCMR 555 and Trading Corporation of Pakistan Ltd. v. International Trading and Sales Incorporated 1991 CLC 32. Where the case of West Pakistan Industrial Corporation was followed. Similar opinion was expressed by a Peshawar Division Bench in Government of N.-W.F.P. v. Bahadur Khan, 1985 CLC 1457. In reply, Mr. Nizam Ahmad has referred to Khanzada Muhammad Abdul Haq Khan Khatak & Company V.
31. WAPDA 1991 SCMR 1436.
32. ' In the Supreme Court case of the West Pakistan Industrial Development Corporation it was held that upon breach of contract, compensation is payable for the actual loss or damage caused but the loss or damage must be the proximate result of the breach and forseeable by the defendant.
33. The principle applicable is Restitution in Intcgrum. The matter of assessment is left to the good sense of the Court but the recompense has to be adequate. It is then said that proof of actual damage is not always necessary in order that damages may be awarded. Every Injuria, although without loss or damage, would entitle the plaintiff to judgment. In actions for breach, nominal damages-may be recoverable although no actual damage can be proved. As seen, the decision wss follovved in this Court in the case of Trading Corporation of Pakistan supra and the principle was applied by the Peshawar High Court in the case of Government of N.-W.F.P. v. Bahadur Khan.
34. ' The case of Khanzada Muhammad Abdul Haq Khan Khatak & Company ibid. Pertained, essentially, to liquidated damages under section 74 of the Contract Act. Since the plaintiff in that case had laded to complete the work assigned within the stipulated period the dcfendants had deducted a certain sum of money from its bills by way of liquidated damages in pursuance of conditions of the contract. Upon discussion, the decree of dismissal, as upheld in appeal, was maintained.
35. ' On principle, it is correct that the party in breach is liable to compensate its opposite number to the extent of the actual loss sustained and proved. In the absence of such loss or proof and upon mere establishing of breach, nominal damages are to be paid. This is the general rule as to measure of damages. However, a contract for the sale or purchase of goods, involves also other considerations. Generally,1 there is a failure to supply the contracted goods and the buyer is constrained to obtain similar goods through repurchase then, subject to the means which existed of remedying the inconvenience caused by the non-performance and provided that the buyer is not seeking compensation for any remote or indirect loss or damage, he would be entitled to the difference between the,price of repurchase of the goods and that earlier contracted. This will be the buyer's actual loss and is within the scope of the general rule. However, in contracts of sale of goods where there is no actual repurchase, another principle applies and that consists of the buyer's entitlement, upon breach, to claim from the defaulting seller the difference, if any, between the market or ruling price of the goods contracted and the price stipulated in the contract. This is irrespective of any actual loss or damage and is awardable upon mere proof of the market or ruling price and calculation of the difference between such price and that in the contract. Where there is no market at the place' of delivery, nearest market may have relevance. (See Hope Prudhomme & Company v. Earnest Louis Max AIR 1916 Mad. 813; Ismail Sail & Sons v. Wilson & Company, 45 IC 942, Mackay v. Kameshwar Singh 59 IC 398, Michal Assely v. Abdul,Sattar & Bros.
36. PLD 1960 Kar. 346, Province of W. Pakistan v. Saaz & Co. PLD 1964 SC 625 and Aijaz Ahmad v. Amin Fabrics Ltd. PLD 1983 Kar. 63). The rule equally applies to the case of an aggrieved buyer, the seller having failed to lift the supplies, quantum of damages being the same namely, inverse difference, if any, between the prevailing price and the contractual price. The principle is enacted in illustrations (a), (c) and (d) to section 73 of the Contract Act. Here a fallacy may be noticed. Neither the operative part of section 73 of the Contract Act nor all the illustrations appended to it speak of any market price. Where readily available the concept of market price may no doubt be resorted to but that is not the sole criterion. What is to be assured is a gettable price and its difference with that contracted, the underlying idea always being to place the party complaining of breach in the same position, as far as may be, had the breach not occurred.
37. It therefore, follows that the plaintiffs, if there was a breach of contract to supply goods on the part of the defendants, were not obliged to make a matching purchase or for the matter of that any purchase of the goods so as to make them entitled to claim damages. All that they had to do was to prove and claim the difference, if any, between the price agreed inter partes and the ruling price of the goods on the date of breach. Correspondingly, it was to be shown as to what was the date of breach, if any, and what was the, available price then.
38. ' It is here to be clarified that the date of breach is not always the date when the defaulting party refuses to perform the contract. In contracts for sale of goods it is the date or dates when the goods are stipulated to be delivered. We have seen already that on more occasions than one the parties varied the dates of performance. According to the plaintiffs' own version, with which they should be bound, the goods were to be supplied starting from December, 1973. The defendants maintained that the variation had come about at the instance of the plaintiffs and niade some reservations. The plaintiffs thereupon retracted and tried to fall back on the original schedule but gave no reasonable notice for performance. Could they do it? Perhaps not. At any event, sufficient time should have been provided for starting deliveries. It, therefore, follows that the stipulated time for performance remained December, 1973 and there is no market price shown, as prevailing during that period.
39. ' Assuming that there was no alteration as to the date of performance, the fact still remains that there was no single date of performance and 20 truck-loads a day for about two months' time had to be delivered. There is no evidence as to the ruling prices on such dates. Even otherwise, there is a bare mention of a single market price of June, 1973, in the legal notice, itself claiming performance in December, 1973, but nothing has been said on that question by the witness. He has not even adverted to any figure or figures on the point, remaining content with producing the said notice as an exhibit. In view of what has been said and the witness remaining totally reticent on the subject, no market price or prices can be deemed established. The dictum of the Supreme Court in the case of Bengal Friends & Co. (supra) applies with-full force. No difference between the market and contractual prices can, therefore, be assessed and none can be allowed towards compensation, even if applicable.
40. ' Corresponding to the above is the allied question, whether the plaintiffs at all material times were ready and willing to perform their part of the contract. This was essential. Wahiduddin Ahmad, J., speaking for a Division Bench of this Court in Bashir Hussain Siddiqui v. Pan Islamic Steamship Co.
41. Ltd. PLD 1%7 Kar. 222, opines that the party suing for breach must prove its readiness and willingness to perform at all material times. The plaintiffs, at best, were ready for a trial run and no more.
42. ' The next question is of nominal damages. Principles on the subject have been discussed by Salahuddin Ahmad, J., in the case of W.P.I.D.C. (supra). No hard and fast rule can be laid down on the subject and in the cited case a sum of Rs,5,000 was allowed. It has already been held that the defendants cannot be found to be in breach or at least unilaterally so. This, therefore, is not even a case fit for grant of nominal damages. Issues Nos.1 to 6 answered accordingly.
43. ISSUE No 7.
44. I having already found the plaintiffs to be disentitled to a decree for damages. The next question is of relief, if any. As said earlier, the defendants have not filed any counter-claim nor have they proved any specific damage. There was a claim of Rs,3,15,000 raised by them in the correspondence, which has been exhibited but the defendants failed, to examine, any evidence or to prove any loss of their own. They, in effect, supplied goods worth Rs,630 only. In such circumstances, they are not entitled to retain the advance amount of Rs,1,40,000 received by them from the plaintiffs. Plaintiffs, correspondingly, are entitled to recover the same minus Rs,630 aforesaid. Decree for the plaintiffs in such sum shall, therefore, follow but with no Birder as to costs.