1. Two questions arise in this Appeal : the first is whether time was of the essence of the agreement between the parties. We think that the District Munsif was right in answering this question in the affirmative. The ruling relied on, by the Subordinate Judge, in Jamshed Khodaram v. Burjorji Dhunjibhai (1916) 40 Bom. 289 is not in point. In that case, the conduct of the parties showed that neither of them considered the time limit agreed on to be an essential term of the contract, Here, on the other hand, there is every thing to indicate that both parties considered time to be of the essence of the contract. We cannot, therefore, uphold the finding of the Subordinate Judge.
2. The second question is one of fact and is raised by the third issue in the suit. The District Munsif answered it in favour of the defendant; but his finding was reversed in appeal by the Subordinate Judge. This being a question of fact, the finding of the latter would be binding on us, were it based on a proper consideration of all the evidence available. We are of opinion that it is not so based. 'What it comes to is this : that defendant should have given plaintiff another extension of time to complete the contract. The real question, of course, was whether defendant was responsible - at any rate in part - for plaintiff's failure to carry out the contract. On that, the Subordinate Judge was of opinion that he was and that plaintiff failed, because defendant did not supply him with elephants. Assuming, without deciding, that this is correct, the Subordinate Judge has not considered the terms of the contract : vide Exs. I, A and II. It is argued that the defendant was not bound by them to supply elephants, and if at one time he agreed to do so, it was clearly as a matter of grace and subject to his own requirements, and that when the time for performance was to be extended, plaintiff was given no reason whatever to suppose that any elephants would be supplied to him by defendant : vide Exs. V and VII. We think that the Subordinate Judge's finding is vitiated by his omission to consider material evidence on this point. Then there is the other plea that Government timber was blocking plaintiff's way. On this, the Subordinate Judge has really considered none of the evidence, but that of plaintiff himself. He has not considered Exs. G and VI. These are petitions submitted by plaintiff, in neither of which is there any reference to this particular plea. No doubt, there is such a reference in Ex. E; but, Ex. E is of earlier date than Exs. G and VI. Plaintiff's explanation of his failure to refer to the obstruction in Exs. G. and VI is that he was afraid of annoying the forest officials. It has to be seen how far this can be accepted, in view of the reference in Ex. F. If there had ever been any obstruction, it has to be found, whether it had been removed, before the date of Exs. G and VI. Here again we consider that the finding is vitiated by the Subordinate Judge's failure to consider material evidence. Under the circumstances, we think that the only course open, to us is td remand the appeal for a fresh finding on issue III. Finding will be returned in one month, from date of receipt of this order. Seven days will be allowed for filing objections.
3. After the return of the finding of the lower Court, the second appeal came on for final hearing before Kumaraswamy Sastry and Waller, JJ.