1. This appeal by the defendants Laxminarainand Gyaniram has been directed against the judgment and decree of the Senior Civil Judge Jaipur, dated 12-8-1954 in a suit for damages for breach of contract, whereby he partially decreed the plaintiff Gulabchand's suit for an amount of Rs. 10,411/ 10-. The plaintiff has also filed cross-objections stating that his suit should have been decreed in toto and praying for increasing the amount of decree by Rs. 7,088/6/-.
2. The case of the plaintiff briefly is that he has been carrying on trade in salt and gunny bags at Sambhar. The defendant Laxminarain and Gyaniram are members of a joint Hindu family of which Laxmi Narain is the Manager. The defendants' firm also carries on trade in salt and gunny bags. The trade in gunny bags in Sambhar is said to be subject to the trade usage according to which the transactions between the parties are to be adjusted and set off and delivery of the gunny bags is to be effected after such adjustment and the due date of delivery is the Punam of every month; but an additional period of five days is allowed as a period of grace for effecting delivery. According to the plaintiff, the defendants purchased from the plaintiff 185 bales of gunny bags under three different transactions, the details of which are as follows:
15thMarch, 1947 corresponding to Chait Vad 8, Smt. 2003.
22ndMarch, 1917 corresponding to Chait Vad Amavas, Smt. 2003.
20thMarch, 1947 corresponding to Chait Vad 13, Smt. 2003.
3. The defendants sold 5 bales of gunny bags on 22-3-1947 (Chait Vad Amavas) at Rs. 71/8/-. After adjusting the latter transaction, the defendants were bound to take delivery of 170 bales on 10-4-1947 and of 10 bales on 10-5-1947 according to the case of the plaintiff. The defendants, however, took no delivery of the bales. The plaintiff, therefore, served notice on various dates on the defendant for taking delivery intimating that in case of failure to take delivery, the bales would be sold in the market at the defendants' risk and costs.
However, before these notices could be served upon the defendants, the goods were sold in the open market in various instalments at a price much less than the contractual prices. The result of these transactions was that the plaintiff had to debit Rs. 67,871/5/- in the account of defendants and credit Rs. 52,146/147 on account of price received on the resale of the gunny bags in open market. He therefore, claimed Rs. 14,725/1/- as damages and Rs. 2,754/15/ as interest thereon, total Rs. 17,750/-.
4. The defendants resisted the plaintiff's suit. They filed separate written statements. Defendant Laxminarain denied having entered into these transactions of sale altogether. He, however, admitted that some time earlier than the dates of these contracts, he had entered into Mandi and Teji-Mandi transactions with the defendants' firm. In these contracts, he only paid some premia to the defendants to buy a right of option to be declared a seller at a particular rate on a particular date and as the plaintiff did not exercise any option on those dates, the premia stood forfeited and these transactions did not mature into resultant contracts of sale and purchase.
Realising, however, that there were contracts signed by his employee evidencing regular contracts, he took the plea that Manmal and Kalyanmal, al-though his employees, were not competent to enter into and execute contracts on his behalf. Alternatively, he pleaded, rather vaguely, that there was no breach of contract. As regards damages, his case was that in no case the plaintiff could be entitled to claim damages on the basis of the difference in the contractual price and the price obtained on resale.
He can at best claim damages on the basis of the difference between the contractual rate and the rate prevailing on the due date. The other defendant Gyaniram's defence is that he has nothing to do with the firm's business at Sambhar, that he had separated from his brother Laxminarain long back and he cannot be in any way liable for losses incurred in respect of the firm's business at Sambhar.
5. The trial Court after framing issues and recording such evidence as the parties produced, decreed the plaintiff's suit for Rs. 10,411/10/- and dismissed for the remaining amount. Its findings may be summarised as follows:
1. That, the Firm Kishangopal Laxminarain was a family firm and both the defendants are members of that family and both of them are liable for losses in respect of the transactions.
2. That, though the earlier transactions werein the nature of Mandi and Teji-Mandi transactions,yet they were subsequently regularized and therecame into existence proper contracts for the saleand purchase of gunny bags as alleged by the plaintiff.
3. The trial court also came to the conclusion that there was a breach of contract on the part of the defendants by omitting to take delivery either on the due dates or within the days of grace allow-ed under the trade usage.
4. Regarding damages, the trial court did not accept the plaintiff's contention that he was entitled to claim compensation on the basis of the difference between the contractual price and the price obtained on resale, as the goods had not been appropriated. However, it thought proper to award compensation to the plaintiff on the basis of the difference calculated on the contractual rate and the rate prevailing on the date of the delivery. As in the case of gunny bags which were to be delivered on 10th April, there was no evidence of the rates prevailing oh the date of delivery, the amount of compensation was calculated on the basis of difference between the contractual rate and the rates on the due date. The defendants and the plaintiff both challenge the decree of the trial court.
6. Taking up the appeal so far as Gyani Ram is concerned, it was strenuously urged that the trial court did not exercise sound discretion and consequently erred in preventing the defendants from bringing on record important documents, which were not such as could be concocted and about whose genuineness there was no doubt. Firstly, to support the case of partition, the defendant-appellant Laxminarain wanted to produce in court the registered deed of partition between the appellants, during his examination as a witness on 21-5-1954, but the court rejected the document on the ground that it was not produced at an earlier stage and was not included in the list of documents.
It is regrettable that the pertinent question whether there was any good reason for permitting the production of the document at that stage was not considered and decided. We may pause to observe here for the guidance of the subordinate courts that the object of courts is to decide the rights of parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. They do not exist merely for the sake of enforcing discipline but for the sake of deciding the matters in controversy.
There are numerous authorities, which lay down that in admitting documents produced at a stage later than the first hearing, the courts should be liberal and should not exclude documents which are above suspicion, if they are necessary for the proper decision of the case. In the present case, the document sought to be produced was a registered partition deed. There was no ground for supposing that it was fabricated. It had obviously a material bearing on the controversy between the parties. In our opinion, in the circumstances of the case, the court ought to have allowed the production of the document and it acted wrongly in rejecting it.
7. Exception has also been taken by the appellant's counsel to the refusal on the part of the trial court to summon the record of the Central Bank, Sambhar relating to the firm Kishangopal Laxminarain for the period 1943 to 1946. An application for this purpose was presented by the appellant Gyaniram as early as 21-11-1953 and thereinit was specifically stated that the defendant Eaxmi-narain had got the firm Kishangopal Laxminarain's account opened in the bank showing himself as the sole owner of the firm. These documents were not in possession or power of the defendant Gyaniram and were required to be produced by the Bank and, therefore, clearly Order 13 Rules 1 and 2 C. P. C. had no application and did not stand in the way of the summoning of the record.
It may also be pointed out that while Order 7 Rule 14 read with Order 7 Rule 18 G. P. C. disable a plaintiff from producing in evidence documents whether in his possession or power, if he had not included them in a list to be filed with the plaint, there are no similar provisions so far as the defendants are concerned. The defendant has an unquali-fied right to produce in evidence documents at any stage so long as his evidence has not been closed, | provided they were not in his possession or power. We must emphatically state that there was not the slightest justification for the lower court in refusing to summon the record applied for.
Incidentally, we may also mention that besides the oral evidence produced by the defendants, there were other materials such as copies of income-tax returns, which prima facie support the defendants' plea of partition and consequently, we were seriously considering the question of rectifying the errors committed by the trial court by permitting additional evidence under Order 41 Rule 27; but the plaintiff-respondent's advocate intimated to us that he had no objection to the acceptance of the appeal of Gyani Ram and to the dismissal of the suit as against him. In view of this statement, therefore, without going further into the matter, we accept Gyaniram's appeal, set aside the decree against him and dismiss the plaintiffs suit. However, considering the delay in producing the registered partition-deed, we do not think it proper to award him costs.
8. Now coming to Laxminarain's appeal, Shri Prakash Chandra contended in the first instance that the plaintiff-respondent having rested his claim for damages on the basis of resale and having not claimed damages on the basis of difference between the contractual price and the market price on the date of delivery, the lower court should not have awarded damages on the latter basis, it being a basis totally different, without amendment of the plaint.
Reliance was placed in this connection on Angullia and Co. v. Sassoon and Co., ILR 39 Cal 568. The observations in this case no doubt support his contention; but with great respect to the learned Judges, we find it difficult to accept the wide proposition stated therein. This case was subsequently considered by the Bombay High Court Sn Narsinggirji Manufacturing Co. v. Budansaheb Afdulsaheb, ATR 1924 Rom 390 which refused to follow it with the following comments:
'With all due respect to the Judges who decided ILR 39 Cal 568, it seems to us that it is going too far to hold that when a plaintiff has made a mistake in demanding damages on a wrong basis, the Court must refuse to set right the mistake by directing the damages to be calculated in the proper way unless the plaint is amended'.
9. Recently in Majesty Balakrishna Rao v. Mooke Devassy Ouseph and Sons, AIR 1939 Andh Pra 30, Umamaheswaram J. after referring to both the Bombay and the Calcutta cases, felt inclined to follow the view of the Bombay High Court which was more conducive to justice in preference to that of the Calcutta High Court as mentioned above. The correct rule on the subject of variance between pleading and proof has been formulated by the Supreme Court in Firm Sriniwas Ram Kumar v. Mahabir Prasad, AIR 1951 SC 177 as follows:
'The rule undoubtedly is that the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not oniy admitted by the defendant in his written statement, but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant him-self makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings'.
10. Examining the case in the light of the above principle, we might mention that it was the defendants' own case that the damages could be claimed only on the basis of difference between the contractual price and the market price on the due date. Further, the issue framed in the case is also comprehensive enough and can be easily said to cover the whole controversy about the quantum of compensation. It reads as follows:
'Whether the plaintiff proves that on taking account of all the transactions Rs. 14,725/1/- and Rs. 2,754/15/-, total Rs. 17,500/- are properly due? If not, what amount, if any, is due to the plaintiff?'
11. It was open to the defendant to pursue his defence and lead proper and necessary evidence for the purpose of calculation of the fair amount of compensation payable to the plaintiff on the basis of the issue framed and it was presumably on that account that he brought on record the evidence as to rates on due dates and dates of delivery in the cross-examination of the plaintiff's witness No. 2 Bhanwarlal. In these circumstances, the defendant was neither taken by surprise nor did he suffer any prejudice on account of the trial court having awarded damages on the basis of the evidence about the rates brought on record during cross-examination of P. W. 2 Bhanwarlal by the defendant himself. This contention of Shri Prakash Chandra, therefore, cannot be accepted.
12. Lastly, it was contended by Shri Prakash Chandra that so far as 170 bales of gunny bags are concerned, there is no evidence on record of the rates prevailing on the date of delivery and that the trial court was in error in adapting the rate on due date for calculating compensation for these 170 bales of gunny bags when in respect of the other transaction, the standard adopted was the rate prevailing on the date of delivery. We, however, cannot ignore the defendant's own admission that the com-pensation should be calculated on the basis of difference between the contractual rate and the rate on the due date. Even in the present appeal, the defendants have taken a specific ground that compensation should have been calculated on the basis of difference between the contractual price and the market price on the due date.
Shri Maghraj suggests that there was a further fall in the price of the gunny bags during the period between the due date and the delivery date and this suggestion, in our opinion, finds support from the ground taken by the appellants themselves. The trial court cannot be said to be in error in the circumstances of this case in allowing relief to the plaintiff on the basis of the defendant's admission by calculating compensation on the difference between the contractual price and the market price on the due date. We, therefore, find no force in the last contention of Shri Prakash Chandra.
13. All the three contentions having thus been rejected, it follows that there are no merits in Lax-minarain's appeal and consequently it is dismissed.
14. The plaintiff-respondent did of course filecross-objections claiming Rs. 7,088/6 more on thebasis of resale, but during the course of arguments,the cross-objections were not pressed. They are,therefore, dismissed. As both the appeals of Laxminarain and the plaintiff's cross-objections fail, weleave the parties to bear their own costs in thisCourt.