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(On a difference of opinion between the members of the above‑noted Division Bench, the case was referred to the Honourable Shabir Ahmad, J. under clause 26 of the Letters Patent Act).
First Appeal No. 34 of 1950, decided on 16th January 1956, from the decree of Muhammad Saleem, Civil judge 1st Class, Lahore, dated the 17th April 1950.
, Ss. 46, 73, Explanation, and ill. (b)‑Breach of contract‑Party suffering from breach not obliged to wait for a second attempt to fulfil contract, although time not essence‑Damages for inconvenience caused by breach Means of remedying breach‑Burden of proof.
The defendant agreed to print certain maps for the plaintiff. The maps when printed were defective; the plaintiff refused to accept them and claimed damages for breach of contract. No time limit had been fixed for the supply of maps.
Held, that the defendant had to supply them within a "reasonable time" contemplated by section 46 of the Contract Act.
The maps being defective, the plaintiff was entitled to refuse to receive them and was under no obligation to take steps to enable the defendant to repair the breach. The plaintiff was therefore entitled to receive compensation in terms of section 73, Contract Act.
If goods are not according to specification, the buyer can reject them and with his rejection the contract comes to an end.
The plaintiff, therefore, had a right of repudiating the contract and no question of reprint arose.
Further that as the plaintiff was able to remedy the breach in terms of Explanation to section 73 by getting maps printed elsewhere, he had not suffered any loss in the natural course of things. He was, however, entitled to damages for the trouble and inconvenience of getting the maps prepared by a second order of printing by virtue of illustration (b) to section 73, Contract Act.
The burden of proving the existence of means for remedying the breach is on the defendant.
Hadley v. Baxendale (1854) 9 Ex. 341, Wertheim v. Chicoutimi Pulp Company 1911 A C 301, Roper v. Johnson (1873) L R C P Vol. VIII, p. 167, James Finlay & Co. v. N. V. Kwik Hoo Tong Handel Maatschappij (1928) L R K B D Vol. II, p. 604 and Ma Hnin Yi v. Chew Whee Shein A I R 1925 Rang. 261 ref.
Mst. Aliya Begum v. Mohini Bibi 18 Luck. 327 dissented from.
Incompetency in execution of work cannot be pleaded in estoppel.
The defendant pleaded that the plaintiff had accepted defectively printed maps on a previous order of his and thus the plaintiff could not refuse to receive defectively printed maps on subsequent orders.
Held, that incompetency could not be pleaded in estoppel.
, cl. 26‑Points on which Division Bench Judges differ to be specified when referring to third sludge.
Malik Muhammad Akram and Kh. Nazir Ahmad for Appellant.
Yaqub Ali Khan, Ch. Feroze‑ud‑Din, H. A. Taib and Ata Ullah Sajjad for Respondent.
‑This appeal arises out of a suit instituted by the respondent in which he claimed Rs. 5,100 as damages against the appellant. The plaintiff, who is a bookseller and publisher in Lahore and claims to be a specialist in maps and atlases, alleged in his plaint that in November 1948 he conceived the idea of publishing wall maps of West Punjab and East and West Pakistan, as they were urgently required by the Education Department of this Province and were not available in the market. He consulted educational institutions (or concerns, as it is stated in the plaint) and was assured of immediate orders provided he mounted the West Punjab map separately and the East and West Pakistan maps together on one surface and could get them ready by the end of February 1949 to enable most of them (the educational institutions) to purchase in March, the last month of the financial year. As there were only four printing presses in Lahore, including the defendant's, which possessed " off‑set " machines and three of them belonged to publishers, the plaintiff could safely entrust the printing of the maps only to the defendant. He settled the terms and conditions with the defendant through the foreman‑in‑charge of its off‑set department. Syed Muhammad Hussain Shah. He apprised Muhammad Hussain Shah of all the circumstances, stated above, relating to his venture and the latter " assured him that he fully realised and appreciated the situation and would see that this printing is done properly, correctly and early ". Fifteen hundred copies of each of the three maps were ordered by the plaintiff. The West Punjab map was printed first and the plaintiff took its immediate delivery. A few days later, in January 1949, the other two maps were, ready but "the plaintiff to his dismay found the printed matter defective and unacceptable " and he, therefore, "refused to take delivery of the said two (kinds of) maps, and asked the defendant to make amends, but they paid no heed ". The plaintiff thereupon instituted the present suit claiming Rs. 5,100 as profits of which, on account of the default, negligence and clarelessness of the defendant, he was deprived as he became unable to supply the sure want on the basis of promised and assured order. It was alleged that the maps in dispute would have cost the plaintiff Rs. 4 each and he would have made a profit of Rs. 6 per map. ' As the plaintiff definitely was getting orders for one thousand . . . . maps he has been deprived of a profit of rupees six thousand' which along with Rs. 400, cost of paper supplied by the plaintiff to the defendant, comes to Rs. 6,400; but he ' willingly ' gave up Rs. 1,300 out of this. The learned trial Court decreed the suit and the defendant is challenging the decree in this appeal.
The facts as they emerge out of the evidence, docu mentary and oral, produced by the parties are, however, substantially at variance with the allegations in the plaint and may be cleared at the outset. No written contract has been produced by the plaintiff. Defendant's counsel stated before the trial Court on the 13th of June 1949, nearly two months before the issues were framed, that the order for the printing of the West Punjab map was first given in writing and after they had been printed and delivered the plaintiff verbally, ordered the printing of the East and West Pakistan maps on the same terms. In para. 3 of the replication the plaintiff asserted, contrary to his allegation in the plaint, that the order for the West Punjab map had preceded the order for the other two maps, and admitted in his cross‑examination; " At first I placed an order in respect of the map of West Punjab only . . . . . . The West Punjab maps were duly published by the defendant and I received them. I do not remember whether it was before or after I received the maps that I placed orders in dispute with the defendant . . . . ." Thus it is clear that, as stated by Muhammad Hussain, D. W. 1, the plaintiff placed an order for the maps in question after accepting the maps of the West Punjab. The third para. of the replication contains the further admission: " It is correct that the terms in case of all maps were the same and naturally had to be the same ". In his cross‑examination, as P. W. 7, the plaintiff said: " All the terms orally settled with Muhammad Hussain were put down in the order forms given by me ". So the terms regarding the second order, whether it was written or oral, were the same as those contained in the written order regarding the West Punjab map; and thus the documents containing the first contract will show the terms which also governed the second contract. The non‑production of the second contract, or order, by the defendant is explained by its counsel's statement that it was oral; and if it was in writing, the plaintiff ought to have called upon the defendant to produce it, a step which he did not take.
Exh. D. 1/A is the order form and Exh. D. 2/A, the esti mate regarding the West Punjab map. Both of these are signed by the plaintiff, who admitted his signatures on them on the 13th of June 1949. Exh. D. 1/A contains the bald order: " Please supply 1500 copies of West Punjab maps in four colours‑Size 30 x 40 " The terms alleged by the plaintiff are not contained either in the order form or in the estimate. Nor are the terms mentioned in the plaint the same as deposed to by the plaintiff in the witness‑box. The plaintiff did not, while giving evidence on his own behalf, allege that he told the defendant, through Muhammad Hussain or any other of its employees, that the maps in question were not available in the market, that he had been assured of large and firm orders by the Headmasters of five or seven local schools and two or three District Inspectors of schools, that the defendant's was the only press which he could safely trust with the printing of the maps, that he was going to make the very extraordinary profit of one hundred fifty per cent on these maps or that if he was unable to supply the maps to his customers by the end of the financial year he would suffer loss. It is true that he stated that he had asked Muhammad Hussain to have the plans printed by the end of the financial year; but if they were to be printed by the 31st of March it is difficult to see how they could have been sold to the numerous out station customers before the end of the financial year. In his statement on the 13th of June 1949, however, the plaintiff had categorically admitted, in the most unqualified and clear language, that ' no time had been settled with the defendant within which the maps had to be printed without fail. ' The two District Inspectors of schools, P. Ws. 4 and 5, one Headmaster P. W. 6, and a Geography Teacher P. W. 2, examined by the plaintiff do not state that they required the maps before the end of the financial year or that they would not have purchased them after that time. In the letter. Exh. D, 3, which the plaintiff wrote to the defendant on the 27th of January 1949, it is not alleged that any time for the printing had been fixed between the parties.
As regards the allegation of the plaintiff that before he placed the order in question he had been assured of definite orders from various educational institutions there is absolutely no evidence on the record to corroborate it. The only documentary evidence relating to the supply of the East and West Pakistan maps by the plaintiff consists of Exhs. P. 6, P. 7. and P. 9. Exh. P. 6 is a letter, dated the 5th of February 1949, written by P. W. 4, Mr. Shabbir Hussain. District Inspector of Schools, Rawalpindi, to the plaintiff enquiring from the latter the price of West Punjab and East and West Pakistan maps (in Urdu). On the 3rd of March P. W. 4 again wrote to the plaintiff, with reference to the quotation given by the latter in response to Exh. P. 6. asking whether he (the plaintiff) could supply 500 maps of East and West Pakistan by the 15th of March. It is, however, noteworthy that he did not require the seemingly more important West Punjab maps and that neither he nor the plaintiff disclosed the price which had been quoted in reply to Exh. P. 6. Exh. P. 9 is a letter, dated the 9th of February 1949, written by P. W. 5 Mr. Ali Muhammad District Inspector of Schools Multan, inviting tenders from the plaintiff for, inter alia, forty maps of East Pakistan and fifty of West Pakistan. Since this gentleman required East and West Pakistan maps separately, plaintiff could not have supplied these for he was mounting East and West Pakistan maps on one surface. P. W. 5 says the tender was made by the plaintiff after the 18th of February and was sanctioned by the Chairman District Board towards the end of February and that so far as he could remember the rate mentioned in the tender was Rs. 5 per map; but neither the tender nor the sanction of the Chairman has been produced. Thus there is no satisfactory evidence to prove that before ordering the defendant to print the maps the plaintiff had consulted various educational institutions and had been assured by them of definite orders for the sale of one thousand maps, or that all the possible customers were willing to pay Rs. 10 per map. Nor is it established that the plaintiff settled any terms with the defendant or gave them any information, beyond what is contained in Exhs. D. 1/A and D. 2/A. A perusal of the original Exh. P. 9 shows that it is a carbon copy of a typed letter and the plaintiff's name is written in ink at the top, which means that Exh. P. 9 was really a circular letter sent to various book sellers calling tenders from them for the numerous items mentioned in it and that the plaintiff was one of them: In other words the plaintiff was not the only book‑seller from whom tenders were invited for the East and West Pakistan maps. Had the plaintiff been really in a hurry about getting the two maps in question printed, he would have, as alleged in the plaint, ordered their printing on the 9th of December along with that of the West Punjab map and would not have placed the order for them after the printing of the West Punjab map, three weeks afterwards.
The order for the West Punjab map was placed with the defendant on the 9th of December 1948 (vide Exh. D. 1/A and Exh. D. 2/A). The maps, according to the statement of the defendant's counsel made on the 13th of June 1949, were ready in December 1948 and were delivered to the plaintiff on the 30th of that month. There is no evidence or allegation to the contrary. The plaintiff said in cross‑examination that he did not remember the date on which be received the West Punjab maps, " nor whether it was in 1948 or 1949 ". The defendant contended in para. 5 of the written statement:‑
" The printing and colouring of all the said three maps were of one and the same quality. Similarly the registration of the colours were the same in all the three maps ordered. There was no difference whatsoever between the said three maps as to printing and colouring. If there are any alleged defects in the two maps of Western Pakistan and Eastern Pakistan the same appear in that of the West Punjab. The plaintiff took delivery of the West Punjab map after satisfying himself with the printing colouring scheme and the registration of colours and hence he is now stopped by his act to complain of some alleged defects in the other two maps ",
In para .4 of the replication the plaintiff replied as
" That para. No. 5 of the written statement does not correctly represent facts. Colour schemes and printing for each were different. It is wrong that the West Punjab map had any such defects as the other two maps. The plaintiff is not estopped on account of accepting the West Punjab map. At any rate, acceptance of one, even if defective does not deprive the plaintiff of his right to object to the other maps."
P. W. 2, a Senior Geography Teacher, who was examined as an expert made the following statement, in his cross -examination, regarding the West Punjab map printed by the defendant:‑
" When rivers are shown in wall maps they are shown either in a single blue line or by two lines coloured blue in between. To me the whole of the boundary line between West Punjab and Baluchistan (in Exh P. 1 the West Punjab map printed by the defendant) seems to indicate a river including the black dotted line. In plan, Exh. P. 1, the line showing the river Sind from the place near Makhad upwards does not give the impression of a river line because it is not blue. I have never heard of a river flowing down from Koh Murree side towards Chaklala and Daoodkhel as shown in Exh. P. 1. The river Chenab as shown in Exh. P. 1, right up to the Jammu side gives the impression of a river although the colour is defective towards the end."
When confronted with Exh. P.1 in the cross‑examination the plaintiff had to put his denial of the defendant's conten tion regarding that map at a very low level: "The West Punjab maps were to a large extent correct according to my directions," but so were the other two maps 1 In his examination‑in‑chief the plaintiff could allege at the most five defects, for some of which the responsibility lay with himself, in the West Pakistan map printed by the defendant and only three in the East Pakistan map. The two experts produced by him, P. Ws. 2 and 3, did not say a word against the East Pakistan maps; they pointed out only two defects in the West Pakistan map. Learned counsel for the appellant, however, frankly and fairly admitted before us that both these maps are strictly speaking defective. Similarly the learned counsel for the respondent did not contend that there were no defects in the West Punjab map‑and some of them similar to those in the other two maps.
It is not now denied that the order for the two maps in question followed the execution of the first order relating to the West Punjab map; and indeed, in view of the con siderations mentioned in the second paragraph of this judg ment, there is little room for such a denial. It appears from Exh. D. 3, a letter written by the, plaintiff to Muhammad Hussain Shah on the 27th of January, 1949, that the printing of East and West Pakistan maps had taken about three weeks, that they were ready for delivery on or about the 20th January and that the plaintiff had seen them on that date. Nearly seven days after the plaintiff wrote Exh. D. 3, saying: "As these maps have been incorrectly printed I am unable to accept them. You should, therefore, settle this dispute with me amicably at your earliest convenience. I shall await you at my shop every day between 9 a.m. and 5 p.m. until the 1st of February 19.19". It is not clearly indicated in this letter as to what kind of settlement the plaintiff desired; but it is to be noted that he does not ask for the correction or reprinting of the maps and that in the week that had elapsed between the printing of the maps and the writing of this letter (Exh. D. 3) he had not made any such demand. To this letter the defendant replied as follows by their letter dated the 1st of February 1949 (Exh. D. 4):‑
"Ch. Ghulam Rasul,
Book‑seller and Publisher,
Mohan Lal Road, Lohore.
Dear Sir,
Mr. Muhammad Hussain Shah has passed your letter, dated January 27th, 1949, along to me.
I gather from Mr. Shah, that you now tell him that these maps were required for some school competition by January 15th, 1949, and that they are now of no use to you. Why did you not inform us that they were required by January 15th, when you placed the order.
The registration can be largely corrected and I would like you to see a corrected copy in my office. I am prepared to reduce the agreed price for this job by Rs. 100, i. e., from Rs. 700 to Rs. 600.
Yours faithfully,
The Civil & Military Gazette, Limited,
(Sd.) (Illegible)
General Manager."
It would be seen that between the 27th of January and the 1st of February the plaintiff had seen Muhammad Hussain Shah and gave him the reason for his refusal to accept the maps, viz., that he had required them for some school competition by the 15th of January and that they were of no use to him‑a reason which he had not mentioned in Exh. D. 3. The attitude which the plaintiff, according to this letter, took up was one of final and unqualified refusal to take the maps on the ground that on account of the defective printing it had become too late for him to do anything about the maps as he had required them by the 15th of January. This is also substantially borne out by Exh. D. 3 and the plaintiff's statement in the examination -in‑chief; "I refused to accept the maps published by defendant and sent him a letter accordingly"; and in cross -examination :-
"Two or three days after receiving Exh. D. 4, I went personally to the office of defendant to know how the maps in dispute could be set right. And when I was told the way in which the maps were proposed to be set right I refused to accept the maps there and then. I had also rejected them in my first letter. The tenders for the District Boards were filled up by me before I finally refused to accept the maps. Again said, some tenders were also filled up by me after the final refusal, with the hope that the defendant may have the maps printed again for me. I never wrote to defendant asking them to print the maps again."
He referred to his unexpressed hope' "that the defendant may have the maps printed again for me" in order to meet the awkward question as to why had he made tenders for these maps after his definite refusal to have them‑a significant fact, which will be reverted to hereafter 1 The complaint of the defendant that the plaintiff had never said that he required the maps by the 15th of January is borne out by the finding already arrived at in this judgment that in fact the plaintiff had given no time to the defendant for printing the maps.
On the 13th of June 1949, the plaintiff stated that he replied to Exh. D. 4 by Exh. D. 5. This is clearly wrong as Exh. D. 5 contains a reminder by him to the defendant that his (the plaintiff's) letter of the 10thof February had not been replied to. The defendant denied having received the letter of the 10th of February. The plaintiff never called upon the defendant to produce the original; nor did he produce his own office copy‑although he filed office copies of all the other letters that passed between him and the defendant. Exh. D. 5 runs as follows:‑
"To 4‑3‑1949/7‑3‑1949.
The General Manager,
Civil & Military Gazette, Lahore
Dear Sir,
With reference to my letter, dated the 13th February (This is a printing mistake. In the original it is "10th",) 1949, I have the honour to inform you that uptil now I have. received no reply from you.
If you will not settle the matter within 4 days from the receipt of this letter, I will be compelled to file a civil case against you.
Yours faithfully,
(Sd.) G. Rasul."
In this letter the plaintiff reiterates his original demand for a "settlement" without amplifying his idea of a 'settle ment'. Surely he could not have contemplated on the 4th (or the 7th) of March the reprinting of the maps It has been seen that the printing had taken about three weeks and even if the defendant had agreed to print them on the fourth day of his letter, i. e., on the 8th (or the 11th) of March, they could not have been ready for him to sell before the expiry of the financial year 1 The fact that he threatened to file a suit failing a settlement within four days clearly indicates that all the time by the settlement he meant the payment of damages by the defendant for not having printed the maps correctly. In reply to Exh. D. 5, the defendant wrote Exh. D. 6:‑
"8th March 1949,
Ch. Ghulam Rasul,
Book‑seller and Publisher,
Mohan Lal Road, Lahore
Dear Sir,
With reference to your letter, dated the 4th March 1949, we have not received your letter, dated the 19th February 1949 (This appears to be a typing mistake in the original for "the 10th ").
We would suggest that instead of filing a civil case against us, which will only cost you many and get you nowhere that you call at our office and discuss the matter.
Yours faithfully,
The Civil & Military Gazette, Limited.
(Sd.) (Illegible)
General Manager."
There is no reply by the plaintiff to this letter. Nor does he say that he ever saw any of the defendant's officials or employees after its receipt. About a month and a half afterwards he filed the present suit on the 23rd of April 1949.
The first question which falls to be considered in this case is whether the plaintiff has laid the foundation for his claim to damages from the defendant. No party to a contract can claim damages without showing that, in the words of section 73 of the Contract Act, the "contract has been broken" by the other contracting party against whom the claim is laid. Has the defendant broken the contract in question In view of our finding that no time had been fixed for the printing of the maps in question, the plaintiff cannot complain that the defendant committed a breach of contract by not completing the printing within the stipulated time. The defendant could be held guilty of a breach of the contract only if it can be shown that he failed to perform his part of the contract within a reasonable time (vide forty sixth section of the Contract Act). It has already been found that the defendant had not been told by the plaintiff, nor has he been shown to have known otherwise, any special circumstance necessitating an expeditious execu tion of the contract. In the absence of a contract of which time was of the essence or special circumstances requiring immediate performance of the contract which were in the knowledge of the parties when they made the contract, it cannot be said that delay caused by the first honest endeavour to perform the contractual obligation being unsatisfactory in some small, although important particulars,' is unreason able ‑especially in a country where the technical skill is not highly developed. There are few printing jobs done in this country, much simpler than the printing of maps, which are free from error. This is a fact of which the plaintiff as bookseller and publisher must have been fully cognizant. In this case the plaintiff was fully aware, from his personal experience of the defendant's defective printing of the West Punjab map that the defendant could not be entirely relied upon for printing maps with scrupulous accuracy, at any rate in the first attempt. If he again placed the second order with the defendant in spite of this knowledge it is a fair presumption that he was willing to take the risk of the first impression being inaccurate. And had the plaintiff made it a condition of his order that the maps‑should be absolutely correct in the first instance, it is strongly probable that the defendant's management, knowing the poor efficiency dis played by their staff in printing the West Punjab map a few days before, would have refused to accept the order. In these circumstances it would be unreasonable to hold that the defendant had failed to print the maps within a reasonable time and had thus committed a breach of the contract entitling the plaintiff to claim damages from them. Nor can the plaintiff complain of a breach because the defendant did not print the maps again. Did he want them to be printed again He had the option of accepting the defective maps, requiring them to be printed again, or rescinding the contract. In fact his whole attitude throughout has been that the contract had come to an end, and that he had become entitled to damages simply because the maps which had been printed were defective. It is not that the plaintiff was unwilling to accept only those maps or that he wanted them to be printed again; the only thing he was willing to accept was a 'settlement' in the shape of damages. An analysis of the evidence on record leaves no doubt that the plaintiff was all along suffering under the erroneous impression that simply because the maps had been incorrectly printed the law gave him the right to claim damages straight way.
The plaintiff having failed to establish any breach of the contract on the part of the defendant, his suit as regards damages must fail. It, therefore, becomes necessary to consider the applicability of the Explanation to section 73 of the Contract Act to the facts of this case, were it, however, necessary, there are circumstances on the record which would require the most serious consideration. Why did not the plaintiff get the maps printed in some other press In that case the defendant would have been liable only for the extra expenses incurred for that purpose. The allegation that the defendant's was the only press in Lahore to which he could entrust the printing of the maps has not been satis factorily established. The plaintiff has admitted in his cross- examination that subsequently he did get the East and West Pakistan maps printed by Kapur Art Press. It has also been noticed in this judgment that even after the plaintiff had definitely terminated his contract with the defendant he made tenders to different customers for the East and West Pakistan maps. Had he, by then, already arranged to get the maps printed elsewhere
The plaintiff is, however, entitled to the cost of the paper which he supplied to the defendant for the printing of the maps and which had been wasted on account of the defective printing by the latter. The plaintiff alleged that he had purchased the paper for Rs. 400; but has not produced any voucher or other evidence to prove it. D. W. 1 has stated that the paper supplied was three reams and that in those days the price of that kind of paper was fifty or sixty rupees per. ream. In the circumstances I fix the cost of the paper at Rs. 250. Setting aside the judgment and decree of the trial Court, I would decree the plaintiff's suit for Rs. 250 only and order that the parties shall receive and pay costs, in this Court and in the Court below, in proportion to their success and failure.
---As I do not agree with my brother that ‑the contract between the parties was not broken, I should state the reasons for that decision and the incidents flowing therefrom.
It will have been seen that the defendant had undertaken to supply the plaintiff with maps of the West Punjab,, the East Pakistan and the West Pakistan, that the defendant had first printed the West Punjab map which had been accepted by the plaintiff and that thereafter the maps which form the subject matter of the suit, namely, those relating to East and West Pakistan, had been printed by the defendant and rejected by the plaintiff. The plaintiff's case was that he had sustained loss because the maps were unserviceable and that as there was no competition in the market, he would have particularly gained if the maps could have been supplied to educational institutions before the close of the financial year 1948‑49. On facts, my brother has come to the conclusion that the order for the maps in suit was placed after the plaintiff had accepted the West Punjab maps and with this finding I agree. He also held that there was no satisfactory evidence that before placing the order the plaintiff had consulted various educational institutions and had been assured of definite orders for the sale of a thousand maps, or that all possible customers were willing to pay Rs. 10 per map. With this finding also I agree in a qualified manner, the qualification being that at least two District Inspectors of Schools had asked him whether he could supply these maps, and although there is no definite evidence that the orders were actually placed, the plaintiff could be fairly certain that the maps would be sold to various educational institutions. For it was a necessary incident of the partition that the maps of West Punjab and of East and West Pakistan should be in demand.
I also agree with the finding that no time limit was fixed for the supply of the maps in suit and that consequently the defendant had to supply them within the "reasonable time contemplated by section 46 of the Contract Act.
My brother then goes on to hold that the maps of East and West Pakistan were no more defective than the West Punjab maps which the plaintiff had already accepted, but after pointing out the defects in the West Punjab maps and placing responsibility for "some" of them on the plaintiff, the judgment states‑a statement which I was anxiously expecting round every corner that the defendant's counsel "frankly and fairly admitted before us that both these maps are, strictly speaking, defective". In fact, so far as my recollection goes, the argument had proceeded before us on the basis that the East and West Pakistan maps were so defective that they did not serve the purpose for which they had been required and on the understanding we folded back the samples after a cursory examination of the colour schemes, the rivers and the boundaries. When the defendant pleaded in the written statement that the colour schemes and other important matters in the West Punjab maps were equally defective, he was merely pleading an estoppel and I am not prepared to hold that because the defects in the West Punjab map were not pointed out by the plaintiff, he was estopped from objecting to them in all subsequent contracts relating to other maps. Incompetency cannot be pleaded in estoppel.
Next, my brother holds that the attitude which the plaintiff adopted after rejecting the maps was "one of final and unqualified refusal to take the maps on the ground that on account of the defective printing it had become too late for him to do anything about the maps as he had required them by the 15th of January", that when he had asked the defendant to "settle" the matter with him, the idea which he entertained of a settlement was one of payment by way of damages and that he had not asked the defendant to reprint the maps. This finding is based on the plaintiff's letter Exh. D. 3, the defendant's reply Exh. D. 4 and the statement made by the plaintiff in evidence. In Exh. D. 3 the plaintiff told the defendant: "As these maps have been incorrectly printed, I am unable to accept them. You should, therefore, settle this dispute with me amicably at your earliest convenience." The defendant replied in Exh. D. 4 that he had learnt from Mr. Muhammad Hussain Shah, foreman of the defendant s' printing department (with whom the plaintiff had placed the orders), "that you now tell him that these maps were required for some school competition by January 15th 1949, and that they are now of no use to you. Why did you not inform us that they were required by January 15th when you placed the order. The registration can be largely corrected and I would like you to see a corrected copy in my office. I am prepared to reduce the agreed price for this job by Rs. 100, i.e., from Rs. 700 to Rs. 600." My brother inferred that between the 27th of January and the 1st of February the plaintiff had seen Muhammad Hussain Shah and given him the reason for his refusal, namely, that he had required them for some school competition by the 15th of January. This, according to my brother, is substantially borne out by Exh. D. 3 and the plaintiff's statement in examination‑in‑chief: I refused to accept the maps published by defendant and sent him a letter accordingly, and in cross‑examination: Two or three days after receiving Exh. D. 4, I went personally to the office of defendant to know how the maps in dispute could beset right. And when I was told the way in which the maps were proposed to be set right, I refused to accept the maps there and then. I had also rejected them in my first letter. "
I regret that on this point I cannot come to the same conclusion with my brother. The reason which the plaintiff's letter Exh. D. 3 gives for rejecting the maps is that they have been "incorrectly printed". The reason which he gives in his statement in Court is that when he was told verbally the way in which the maps were proposed to be set right he refused to accept them. He has amplified this reason thus: "Defendant offered to correct the published maps by filling up the vacant spots with colour and covering the out spread portions of colour with sufeda. I refused to accept the offer because the colour could not be filled in smoothly by the hand, and the covering of white paint was liable to be removed at the time of varnishing the plans". Therefore to say that the plaintiff had rejected the maps because he wanted them only by the 15th of January, and to rely for that statement on the plaintifi's own evidence is to exceed the plaintiff's case. Neither in the plaint nor in any part of his statement has the plaintiff given this as a reason for rejection.
I agree, however, that the plaintiff did not ask for a reprint of the maps but, on the other hand, the defendant also did not make an offer of reprint. If the defendant had made an offer and the plaintiff had rejected it, then the principle of "reasonable time" enunciated in section 46 might have come into operation against him. It would then have to be seen whether the defendant could perform the contract within a reasonable time. As it is, if what the defendant did amounted to a breach of the contract, there was no further obligation on the plaintiff to take steps enabling the defendant to repair the breach.
Finally, my brother holds that in view of the finding that no time had been fixed for the printing of the maps, "the plaintiff cannot complain that the defendant committed a breach of contract by not completing the printing within the stipulated time. The defendant could be held guilty of the breach of contract only if it can be shown that he failed to perform his part of the contract within a reasonable time (vide 46th section of the Contract Act). It has already been found that the defendant had not been told by the plaintiff nor has he been shown to have known otherwise any special circumstances necessitating an expeditious execution of the contract. In the absence of a contract of which time is of the essence or special circumstances requiring immediate perfor mance of the contract which were in the knowledge of the parties when they made the contract, it cannot be said that delay caused by the first honest endeavour to perform the contractual obligation being unsatisfactory in some small, although important particulars, is unreasonable, especially in a country where the technical skill is not highly developed. Nor can the plaintiff complain of a breach because the defendant did not print the maps again. Did he want them to be printed again In fact his whole attitude through out has been that the contract had come to an end, and he had become entitled to damages simply because the maps which had been printed were defective."
Section 73 of the Contract Act lays down that when a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, (1) which naturally arose in the usual course of things from such breach, or (2) which the parties knew, when they made the contract, to be likely to result from the breach of it. Since we have held that the special circumstances, namely, that the maps would be sold to educational institutions before the 31st of March 1949, were not within the knowledge of the defendant, the second part of section 73 will not apply, but if the contract was broken, there is no reason why the first part also should not apply. For the natural and ordinary consequences of any event‑namely, such as can be foreseen without any special information‑are always assumed to be in the contemplation of reasonable men, and "it is no excuse for a man to say that he failed to think reasonably or did not think at all". That is the principle of Hadley v. Baxendale ((1854) 9 Ex. 341) and on that principle are based the words which naturally arose in the usual course of things from such breach" in section 73. In such cases the measure of damages is the difference between the market price and the price at which the plaintiff had contracted to buy. If, for instance, it had been found that the plaintiff could have sold the maps at the rate of Rs. 10 per map in the ordinary market, then since it cost him to get one printed for Rs. 4, the ordinary loss to him per map would be Rs. 6 and that in fact is the measure which he himself has applied. In the language of Wertheim v. Chicoutimi Pulp Company (1911 A C 301), "it is the general intention of the law that in giving damages for breach of contract, the party complaining should, so far as it can be done by money, be placed in the same position as he would have been in if the contract had been performed."
The next question is whether the, contract has been broken, and it seems to me to be a matter of commonsense that, if goods are not according to specification, the buyer can reject them and that with his rejection the contract comes to an end. But I am not relying merely on commonsense. It was stated by the defendant's counsel on the 13th of June 1949, that with the placing of the order the plaintiff had supplied the defendant with two printed maps from a geography book, instructing the defendant to follow their colour scheme. These maps consequently were to be followed as a sample. According to section 17 of the Sale of Goods Act, a contract of sale is a contract for sale by sample where there is a term in the contract, express or implied, to that effect. Subsection (2) of that section states that in such a contract there is an implied condition that the bulk shall correspond with the sample in quality and the buyer shall have a reasonable opportunity of comparing the bulk with the sample, and according to section 12 (2), "a condition is a stipulation essential to the main purpose of the contract the breach of which gives rise to a right to treat the contract as repudiated". The plaintiff, therefore, had a right of repudiating the contract and no question of reprint arises As I have already stated, if the defendant had offered to reprint the maps and the plaintiff had rejected the offer, the question to decide would be not whether the contract was broken in the first instance but whether with reference to the explanation to section 73 of the Contract Act (which deals with the existence of means to remedy the inconvenience caused by non‑performance), any sum could be claimed in damages.
Therefore, holding that the contract was broken when the defendant supplied what might be called unmerchantable goods, and that the plaintiff thereupon became entitled to compensation with reference to the market available to him for sale. I proceed to examine the explanation to section 73 of the Contract Act, which is in these terms:‑
"In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non‑performance of the contract must be taken into account."
It must be clear that the burden of proving the existence of such means is on the defendant, notwithstanding the view expressed in Mst. Aliya Begum v. Mohini Bibi (18 Luck. 327), without reference to authority. That seems to be the only case which holds that the burden of the explanation is on the plaintiff. On the other hand, it was held in Roper v. Johnson ((1873),L R C Y Vol. VIII, p. 167), that in the absence of evidence on the part of the defendant that the plaintiff could have obtained a new contract on such terms as to mitigate his loss, the true measure of damages was the difference between the contract price and the market price at the time of delivery. In James Finlay & Co. v. N.V. Kwik Hoo Tong Handel Maatschappij (1928 L R K B D Vol. II, p. 604 ) it was held that a plaintiff's duty to minimise damages is limited to doing what is reasonable in all the facts of the case, the onus of showing a breach of that duty being on the defendant. The same view was held in Ma Hnin Yi v. Chew Whee Shein (A I R 1925 Rang. 261).
Unfortunately for the plaintiff, however, he has himself indicated the means of remedying the inconvenience by stating in cross‑examination:‑
"Recently I have had maps of East and West Pakistan published by Kapoor Art Press . . . I do not remember what I have paid to the Kapoor Art Press for the maps."
He made this statement on the 10th of November 1949 and the contract was broken some time in January or February of that year. We do not know what exactly he means by "recently". It may be, as my brother has pointed out, that he had already arranged to get the maps printed else where because after terminating his contract with the defendant, he made tenders to different customers for the East and West Pakistan maps. The fact that he does not remember what he paid to the Kapoor Art Press may indicate unwillingness on his part to disclose the payment. If he had paid more than the contract rate with the defendant, he would certainly have produced evidence to prove his loss. As regards the market rate, we cannot arbitrarily hold that it was higher in January, February or March than in the middle of the year. I would, therefore, hold that he has not sustained any loss or damages in the natural course of things.
Illustration (b) to section 73 of the Contract Act, however, entitles the plaintiff to claim damages for "trouble and expense" occasioned to him in contracting with the Kapoor Art Press. Illustration (b) is as follows:‑
"A hires B's ship to go to Bombay, and there take on board, on the first of January a cargo which A is to provide, and to bring it to Calcutta, the freight to be paid when earned. B's ship does not go to Bombay, but A has opportunities of procuring suitable conveyance for the cargo upon terms as advantageous as those on which he had chartered the ship. A avails himself of those opportunities, but is put to trouble and expense in doing so. A is entitled to receive compensation from B in respect of such trouble and expense."
We have no evidence of any "expense" having been incurred but there can be no doubt that it is troublesome and inconvenient for a person to cancel one contract and enter into another. If each time that the plaintiff entered into such a contract, he had to rescined it two months later because the goods were not according to specification on the balance of a whole year he will have entered into six contracts and made no profits. It is not easy to assess the pecuniary value of an inconvenience, but where the defendant was to get Rs. 700 for the work and the plaintiff could be reasonably expected, as in the case of the West Punjab map, to sell it at double the cost price, a sum of Rs. 200 for inconvenience would certainly not be excessive.
For the price of the paper given to the defendant, the plaintiff claimed Rs. 400. This amount has been reduced: by my brother to Rs. 250 on the strength of the statement of the defendant's foreman that three reams of paper were supplied to him. Although in para. 10 of the plaint the plaintiff put his profits at Rs. 6,000 and the cost of paper at Rs. 400, the defendant in the written statement, while generally denying the correctness of para. 10 stated particularly that the plaintiff had suffered no loss and was not entitled to any damages, and he made no reference to the cost of paper. I, therefore, do not think the plaintiff was called upon to produce any more positive proof of the costs of paper and I would not be inclined to prefer the statement of the defendant's foreman to a similar statement made by the plaintiff himself in his evidence. I would, therefore, hold that the plaintiff is entitled to Rs. 600 with proportionate costs.
In view of the difference of opinion, the appeal will be heard by a third Judge.
Muhammad Akram for Appellant.
Mushtaq Hussain for Respondent.
---‑This regular first appeal which arises out of a decree for a sum of Rs. 5,100 granted in favour of the respondent has come before me under Clause 26 of the Letters Patent of this Court, because my brothers Kayani and Akhlaque Hussain who heard it were divided in opinion as to the decision to be given. The points on which my learned brothers were divided in opinion have‑ not been specified as they should have been under Clause 26 of the Letters Patent, but that omission does not make any material difference or affect my jurisdiction to deal with the case:
The suit out of which the appeal arose was to recover Rs. 5,100 of which Rs. 400 was for price of the paper supplied by the plaintiff to the defendant for printing some maps and the balance as damages for breach of contract. My brother Akhlaque Hussain held that the plaintiff had not succeeded in proving a breach of contract, while my brother Kayani, though holding that there had been a breach of contract, was of the view that the plaintiff was entitled to only Rs. 200 for the inconvenience caused to him because of the bad work manship of the defendant. With regard to the price of the paper supplied by the plaintiff to the defendant, my brother Akhiaque Hussain thought that the plaintiff should get only Rs. 250 while my brother Kayani.held that the plaintiff was entitled to Rs. 400 on that score. The gist of the opinion of my brother Akhlaque Hussain is that the plaintiff was entitled to Rs. 250 and the parties should receive and pay costs in both the Courts in proportion to their success and‑failure, while my brother Kayani would grant a decree to the plaintiff for Rs. 600 with proportionate costs.
After going through the relevant parts of the record and the judgments recorded by my brothers and hearing the learned counsel for the appellant, I find myself in complete agreement with the findings of my brother Kayani and the reasons he has given, for arriving at them, In view of my complete agreement with my brother. Kayani, I consider unnecessary to give my own reasons as that will be no more than a repetition of what has been said by him. I might add that, in my opinion, the plaintiff should have got more than Rs. 200 on the ground of inconvenience caused to him and were it not for the fact that even if I granted the plaintiff al larger sum than Rs. 200 on the score of inconvenience no more than my brother Kayani held him to be entitled can be decreed in the plaintiff's favour, I would have increased that amount substantially.
The result, therefore, is that a decree will be passed in favour of the plaintiff for a sum of Rs. 600 with proportionate costs.
Kh. Nazir Ahmad for Appellant.
Mushtaq Hussain for Respondent.
In accordance with the majority opinion, the appeal is accepted to this extent that the plaintiff is granted a decree for Rs. 600 with costs throughout.
The defendant will receive the costs of appeal in proportion to his success in this Court.
A. H. Appeal partly accepted.
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