1. The parties to this appeal entered into a contract on the 8th of January 1914. The contract was for a supply of sleepers to the plaintiff-appellant, Sheikh Habib-ul-lah. According to the terms of the contract the defendant-respondent, Mohammad Shan, was to supply the plaintiff with 8,000 sleepers of a particular description. It was agreed that the sleepers should be stocked for delivery at two stations on the Bengal and North-Western Railway and under the 4th clause of the contract note, it was provided that the plaintiff should have the sleepers examined and passed by the end of April 1914. After the contract note had been drawn up, Habib-ul-lah advanced the sum of Rs. 5,660 to the defendant by way of earnest money. Under the 8th clause of the contract note, it was agreed that if, within the time fixed for the completion of the contract, the plaintiff have any cause of dissatisfaction with the defendant, the latter was to be liable to refund the earnest money and pay damages. Two suits arising out of the contract embodied in this note were filed by the parties. We are dealing here in appeal with the suit in which Habib-ul-lah was the plaintiff. According to the case set out in the plaint the defendant was guilty of breach of the contract by failing deliver sleepers at the place appointed, within the period fixed by the agreement. It was alleged in the fourth paragraph of the plaint that the defendant had failed to supply even a solitary sleeper. For this reason, therefore, Habib-ul-lah brought a suit to recover Rs. 9,660. Out of this Rs. 5,660 represents the money which he had advanced to the defendant. The balance Rs. 4,000 was claimed by way of damages for breach of the contract.
2. The counter-suit, which was brought by the defendant Mohammad Shafi, was for recovery of the balance of the purchase-money. According to the case set up by him, he had fulfilled the contract into which he had entered and had supplied the goods to Habib-ul-lah as agreed upon. His case rested upon the allegation that the contract had been completed and the property in goods had passed to Habib-ul-lah. He gave credit for the amount of the earnest money received, that is to say, Rs. 5,660, and claimed Rs. 3,539 as the balance of the money which was owing to him.
3. Both suits were tried together but separate decrees were prepared and the result of the trial was that the suit brought by Mohammad Shafi against Habib-ul-lah was dismissed. According to the learned Subordinate Judge's opinion the contract had not been fulfilled, the property in goods had not passed to Habib-ul-lah and, therefore, Mohammad Shafi was not entitled to claim the sum he was asking for as the balance of the price of the goods. An appeal against this decree was taken to the Court of the District Judge of Agra and was dismissed. So far, therefore, as the suit which was brought by Mohammad Shafi against Habib-ul-lah is. concerned, it has been disposed of for good and all.
4. Turning now to the suit which was brought by Habi-bul-lah we find that on the pleadings five issues were framed, three of which related to the other suit filed by Mohammad Shafi. The result of the trial of the present suit has been that the Subordinate Judge has found that Habib-ul-lah, the plaintiff was guilty of breach of the contract. Notwithstanding this finding, he was given a decree for the refund of the earnest money less a sum of Rs. 2, 265-10-0 on account of, damages to which he thought Mohammad Shafi was entitled by reason of the breach.
5. In the course of the argument it was complained by the learned Counsel for the appellant that the case had not been properly tried in the Court below and certainly there are some grounds for criticizing the manner in which the case was handled by the Subordinate Judge. He tells in his judgment that both parties took up a very obstinate attitude. They were represented by Pleaders whom he describes, perhaps facetiously, as 'able Pleaders.' There seems to have been considerable wrangling between these Pleaders regarding the incidence of the burden of proof and the Subordinate Judge seems to have been quite overcome by the, situation and to have been unable to exercise any control over the proceedings before him.
6. We think, under the circumstances which are shown, that the Subordinate Judge would have been well advised to express an opinion on the legal question as to which party was liable to support the burden of proof. It is evident from his judgment that he was aware of the law on the subject and. indeed he has expressed it quite correctly in his judgment. The plaintiff Habib-ul-lah came into Court asking for damages for breach of the contract and there can be no doubt whatever that the burden of proving a breach of the contract lay upon him.
7. However, whatever faults may be attributed to the learned Judge in connection with these proceedings, we are not prepared to listen to the argument that a fresh trial should be ordered in the interests of the plaintiff. We have the fact that he was represented by Counsel and we have also the fact that he and his Pleaders stubbornly refused to produce any evidence other than certain evidence which had been previously taken upon commission. The plaintiff asserted that the burden of proof lay upon the defendant and he refused obstinately to give any other evidence. If a plaintiff takes up this attitude and if it subsequently turns out that it was a mistaken attitude, he has only got to thank himself or the Pleaders who were advising him. We decline to pass any orders referring this case again for a fresh trial.
8. There is evidence on the record consisting, as we have said, of statements, which were taken on commission, of two witnesses; who were examined on behalf of the plaintiff and three en behalf of the defendant. On the materials before him, the learned Subordinate Judge came to the conclusion the breach of the contract was due to the omission of the plaintiff to carry out his part of the agreement. The learned Subordinate Judge refers m particular to the statements of two witnesses Chaudhri Afzal Rahman and Bashir-ud-din On their statements he holds as a matter of tact that 8,000 sleepers had been collected by the defendant at the appointed places before the end of April 1914. Me further finds that the plaintiff had failed to have the sleepers inspected and passed by the Engineer whom he was employing for that purpose.
9. If this finding of fact can be supported it seems to us that the appellant here is not entitled to succeed in his appeal and, therefore we must hold that the cross-objections which lave been filed on behalf of the defendant-respondent must prevail. So far as the finding is concerned we agree with the Court below. An objection has been taken to the evidence of these witnesses, which was recorded by a Commissioner. It is said that the evidence was not recorded in the manner prescribed under the rules contained in Orders XVIII and XXVI of the Code of Civil Procedure. The Record of the evidence is in English and it is contended that there is nothing to show that the evidence having been given in Urdu the English record was translated to the Witnesses and admitted by them as correct So fir as this point is Concerned, we have font is clear that no objection on this score was taken to the evidence when it was tendered in the Court below, nor is the omission of a certificate to the effect that the evidence was translated to the witnesses any proof that the law has not been complied with. There is no rule that such a certificate must be attached to the record and we are entitled to resort to the ordinary presumption that everything has been done in due order. We agree with the Court below that there is no reason to discredit the statements of these two witnesses and they being accepted, it necessarily follows that Habib-ul-lah was guilty of the breach of the contract It is hardly necessary to observe that a plaintiff who himself is guilty of breach of the contract cannot sue for damages arising out of his own default. Consequently in no circumstances is it possible for Habib-ul-lah to maintain the claim for Rs. 4,000 damages.
10. There remains the question whether or not he was entitled to a refund of the earnest money amounting to Rs. 5,660. We have already mentioned that the Subordinate Judge has found that he was entitle to this refund less a certain sum deducted on account of damages claimable by the defendant-respondent.
11. The law, however, is not as laid down by the Subordinate Judge. Our attention has been called to two cases in this Court, namely Bishan Chand v. Radha Kishen das 19 A. 489 : 7 A.W.N. (1897) 123, 9 Ind. Dec. (N.S.) 316 and Roshan Lal v. Delhi Cloth and General Mills Co. Limited 7 Ind. Cas. 794 : 33 A. 166 : 7 A.L.J. 1019. The third case is a case of the Madaras High Court: Vellore Taluq Board v. Gapalsami Naidu 26 Ind. Cas. 226 (F.B.) : 38 M. 801 : 17 M.L.J. 84. The law as settled appears to be that where a plaintiff has advanced for the fulfillment of the contract he cannot that the breach of the contract is due to his own default. That being the law it seems to us that the proper order for the judge to pass in this case was to dismiss the claim Habib-ul-lah entirely. What we have said disposes of the various grounds of appeal which are to be found in the memorandum of the appellant and also determines the cross-objections which have been filed on behalf of the respondent. We think the plea which is continued in the first paragraph of the petition of cross objections must prevail and we allow these cross-objections accordingly. The result is that the appeal fails and is dismissed with costs, including costs in this Court on the higher scale. We allow the cross-objections and award costs on the higher scale in favour of the respondent against the appellant.