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Civil Revision Petition No. 132/55, decided on 9th December 1955.

, S. 2 (a)‑Sporting offer not proposal‑Civil Procedure Code (V of 1908), O. XXIII, r. 3.

A sporting offer by the plaintiff, in a suit for possession of a water‑mill, that he would sell the mill for a sum of Rs. 250 or Rs. 200 to the defendants, made in answer to a question in the course of defendants' counsel's cross‑examination with reference to an issue on the value of the mill for purposes of Court‑fee, is not a proposal within meaning of section 2 (a), Contract Act, and the case cannot be said to have been adjusted within meaning of O. XXIII, r. 3, Civil P. C. by the acceptance of such a proposal by one of the defendants.

Thakar Dass for Petitioners.

Kazi Abdur Rashid for Respondents.

.‑This revision petition arises out of unique case perhaps not covered by any published authority. The learned counsel for the parties confess that they have not been able toy find any ruling on the point. Muhammad Afzal Khan plaintiff had instituted a suit for the possession of a water mill. Appearing as his own witness he in the course of his evidence, in reply to a question by the defend ants' counsel gave the value of the water mill as Rs. 200 or Rs. 250, and offered to sell the same to the defendants for that price. The defendants' counsel expressed his acceptance of the offer on behalf of his clients. Azizur Rehman (defendant No. 1) made an application to the trial Court that he be permitted to deposit the money. On the hearing of the application, the Court dismissed the suit, holding that it had been fully adjusted by a lawful agreement between the parties. On appeal by the plaintiff, the District Judge reversed the order of the trial Court, and restored the suit. The defendants have now come up to this Court on a revision petition.

The petitioners' counsel urges that the reply of the plaintiff to the question of the defendants' counsel amounted to a proposal, which was duly accepted by his clients, and, therefore, the parties adjusted the suit by an agreement as provided for under Order XXIII rule 3 Civil P. C. The argu ment sounds fairly plausible at first sight, but when it is considered against the background of the proceedings of the case, it loses its force completely.

For the correct appreciation and understanding of the point involved, the facts of the case may be set out briefly as follows: ‑

Muhammad Afzal Khan plaintiff had instituted a suit for the possession of a water mill as well as some agricultural land. The suit was decreed. On appeal, the District judge held that as the suit in respect of the land was between a landlord and his tenants, Civil Court had no jurisdiction to adjudicate upon it. The plaintiff came up to this Court on a revision petition. The learned judicial Commissioner of this Court, who heard the petition, agreed with the finding of the District Judge, and directed the plaintiff to amend his plaint, and restrict his suit to the water mill only. The plaint was amended accordingly. The defendants resisted the suit on various pleas. One of the issues struck in the case was, whether the suit was properly valued for the purposes of Court‑fee and jurisdiction This issue was framed because the plaintiff estimated the value of the water mill at Rs. 300, while the defendants gave its value as Rs. 15,000. When the plaintiff was giving evidence as his own witness, the counsel for the defendants in the course of cross‑examination, put him a question about the value of the water mill in dispute. The plaintiff replied that the water mill was worth Rs. 200 or Rs. 250. It appears that on a further question, the plaintiff told the counsel that if the defendants paid him that amount, he would give the water mill to them. Taking full advantage of the reply, the counsel for the defendants promptly ex pressed his willingness to pay the amount on behalf of his clients. Realizing the implication of his offer made thought lessly and accepted by the other party, the plaintiff hurried to add that he would consult his brother and ultimately revoked his so‑called proposal.

It is clear from the facts outlined above that there was no genunie proposal made by the plaintiff. Apparently, the counsel for the defendants was making efforts to prove that the value of the water mill was not less than Rs. 15,000 as alleged by the defendants in their written‑statement, and that the suit had been undervalued. 'The plaintiff quite naturally was anxious to show that the value of the water mill was not more than Rs. 300 as stated by him in the plaint, and when a question was put to him, he replied that the water 'mill was only worth Rs. 200 or Rs. 250. On an apparently tactical question by the defendants' counsel he also expressed his willingness to sell the water mill at that price, though almost in the same breath, he resiled from his offer when the defendants' counsel told him that he was prepared to pay the amount.

Section 2 (a) of the Contract Act defines proposal as under: ‑ '

When one person signifies to another his willingness to do or to abstain from doing anything with a view to obtain the assent of that other to such act or abstinence, he is said to make a proposal.

It is quite obvious from the definition that the willingness to do a certain thing on the part of the promisor must be with a view "to obtaining the assent of the promisee to such act." In the present case, the intention of the plaintiff was to show to the Court that the suit had been valued properly for the purposes of Court‑fee and jurisdiction. He had no intention to actually sell the water mill to the defend ants. In fact, he could not possibly have had such an intention when the defendants themselves were admitting that the water mill was worth Rs. 15,000. It is impossible to conceive that the plaintiff would have agreed to sell the water mill at a ridiculous price of Rs. 200 or Rs. 250. A sporting offer, made casually and not genuinely, by a plaintiff in the course of his cross‑examination, in reply to a question put by the counsel of the opposite party, primarily intended to discharge the burden of proof placed upon him under an issue, cannot be interpreted by any stretch of imagination or language as a "proposal" within the meaning of section 2 (a) of the Contract Act.

There is also another aspect of the case, which is equally important for the determination of the question. If the words of the plaintiff are construed as rigidly as is suggested by the learned counsel for the petitioner, his contention falls to the ground. Suppose the plaintiff did make a proposal to sell his water mill, but we must remember, he made it to "the defendants", and not to any particular person or persons. The exact words used by him are: ‑

"If the defendants pay me this amount, I will give the water mill to them".

Now, there are no less than ten defendants and one of them is Muhammad Aslam Khan, a brother of the plaintiff. The counsel, who accepted the offer, represented only the other defendants, and not Muhammad Aslam Khan. The latter never accepted the offer of the plaintiff. Therefore, it is quite obvious that the proposal could have been accepted by all the defendants, and not by some of them.

Consequently, for the reasons given above, I fully concur in the order of the District judge, and dismiss the revision petition with costs of this Court.

A. H.

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