1. This is a defendant's appeal from a decree of the Subordinate Judge of Allahabad in favour of the plaintiff in an action for breach of contract. The defence was struck out for noncompliance with an order to file papers and list of witnesses. The plaintiff's case was then heard ex parte. The appellant asks that the decree should be set aside on the ground that the learned Subordinate Judge should not have struck out the defence, nor heard the plaintiff's case ex parte, and that on the materials on the record the plaintiff was not entitled to the decree which was awarded to him.
2. As to the first ground of appeal it appears that on the 26th of August, 1927, the defendant filed a medical certificate saying that he was ill with enteritis and jaundice and that it was hoped that in a fortnight or so he would be cured. On the 1st of September, the plaintiff filed an application for discovery of document under Order XI, Rule 12, and an order was made that the defendant should file papers 'on the next day as agreed by Mr. Gupta'. The defendant was also ordered to file a list of witnesses. By the same order the defendant was asked to state 'if the evidence recorded in the criminal case as affected this case should be read in this case.' It appears that the plaintiff had prosecuted the defendant under Section 420 of the Indian Penal Code for cheating in connexion with this transaction. The evidence recorded in the criminal case could not be read or used in the civil case. The defendant objected to this order. On September the 5th the case was put up for hearing and a telegram from the defendant was read stating that he was still ill The Judge made a peremptory order that the defendant 'do file papers and list of witnesses by 3-45 p.m. that afternoon otherwise his defence be struck off and the proceedings shall be taken ex parte' At 4 o'clock the Judge struck out the defence, and on September the 8th the case was heard ex parte and judgment given for the plaintiff. I am of opinion on the facts that the Judge was wrong in acting as he did, and on this ground alone the appeal ought to be allowed.
3. As to the last ground of objection, that on the materials on the record the plaintiff was not entitled to the decree which was awarded to him, I am clear that the appellant's objection is sound. It is patent on the face of the plaint that the Subordinate Judge had no proper materials before him to arrive at his decision. The plaint itself offends against every rule of pleading. It is verbose, extremely long and involved, and impossible to understand. It does not allege clearly any fact which would show that the Judge had jurisdiction to hear the case at all. Nowhere is there an allegation that any part of the contract was either 'made at or to be performed in Allahabad. But even more important, although the breach of contract alleged is failure to supply a 'new Platen printing press and Double Crown flat bed printing machine', the plaint nowhere alleges that the defendant had contracted to supply such a machine to the plaintiff. No dates are given. Rupees 3,000 are claimed as damages for loss of profit, but there are no particulars of special damage alleged. It is quite impossible for any Court to do justice between the parties when a plaint is in such a condition. The defendant in his written statement, para. 1, complains that the plaint is embarrassing and should be rejected. I am of opinion that this objection of the defendant was properly taken and ought to have been acted upon by the Judge. The whole document ought to have been struck out under Order VII, Rule 16, or an order made for its amendment, so that an intelligible case could have been presented to the Court, and the defendant put in a position to know what case he had to meet. It was quite impossible for any defendant to draft a proper written statement in answer to such a plaint.
4. The case must be returned to the Subordinate Court for a proper bearing before some other Judge.
5. The plaint should be amended by striking out paras. 1-19. The plaintiff should have 14 days for amendment of his plaint and he must give full particulars of any contract on which he intends to rely. The defendant will have 21 days thereafter to file his amended written statement. There ought also thereafter to be mutual discovery on oath of all the relevant documents in the case.
6. Before Counsel for the plaintiff drafts the new plaint he should obtain from his client by conference or otherwise all the facts and documents he can and carefully consider the reports of the experts. He should then consider the law applicable to the case, make up his mind whether the case is one of ordinary breach of contract or warranty or condition, whether representations, if any, were made inducing the contract, and, if so, whether they were innocent or fraudulent, always bearing in mind that a plea of fraud is a most serious matter not lightly to be put on the record, and that an unsubstantiated plea of this character is most damaging to his case. He then should consider what relief the plaintiff is entitled to claim. If actual loss is claimed full particulars of special damage should be pleaded.
7. I agree. In strictness we ought to have allowed the defendant's appeal and entered judgment for him on the ground that the plaint disclosed no cause of action. The position then would have been that the plaintiff would have laboured under a sense of grievance, inasmuch as he would never have had a trial on the merits. Such a trial he ought to have had.
8. The waste of time and money in this case is due to the failure of care and thought on the part of three persons: the plaintiff himself, Counsel whom he employed, and the Judge. It was the duty of the plaintiff to have told his Counsel exactly what the contract was, exactly what was the breach, and in support of this part of the case, to have furnished him with the reports of experts, such as are now at this late stage of the case to be found in the evidence. He also could have given him particulars of the damages he claimed to have sustained, and the heads of that damage should have been properly set out in the plaint. The Counsel for the plaintiff should then have considered what were the rights of the plaintiff and whether he could repudiate the contract in its entirety and reject the article and demand a return of the money he had already paid, or whether his claim sounded in damages only. He would have had to consider whether the case was one of breach of condition or warranty, or whether there existed innocent misrepresentation, or whether there was any ground for alleging the existence of fraud.
9. The case must be re tried by a Judge other than Mr. Saiduddin, who failed to observe that the plaint disclosed no cause of action and was in other respects manifestly imperfect, and who disposed of this case in far too summary a fashion.
10. By the Court.--The order of the Court is that this case be remitted to the Court of the Subordinate Judge of Allahabad and an amended plaint and written statement be delivered as ordered. The 14 days for the delivery of the amended plaint to run as and from the date on which this record reaches the Subordinate Court, and the case, when ready for trial, is to be re-heard by some Judge other than Mr. Saiduddin, and the costs of all the proceedings from the 25th of July, 1927, the date of the institution of the suit, down to and including the hearing of this appeal, to be, to this extent, in the discretion of the Judge deciding the new trial, namely, that he is to decree them wholly or in part against the plaintiff, having regard to his failure properly to plead his cause of action in the plaint of the 25th of July, 1927, and the defendant is to have the whole of the costs thrown away unless in the opinion of the Judge the defendant has behaved unfairly to the defendant either in the making or carrying out of the contract or during the proceedings.