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Halayudh and anr. Vs. Tek Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal Nos. 39 and 40 of 1952
Judge
Reported inAIR1953HP85
ActsCode of Civil Procedure (CPC) , 1908 - Section 11 - Order 41, Rules 23 and 25
AppellantHalayudh and anr.
RespondentTek Chand and ors.
Appellant Advocate Thakur Prasad, Adv.
Respondent Advocate Kedar Ishwar, Adv.
DispositionAppeal allowed
Cases ReferredJainul Ahideen Marakayar v. Habibullah Sahib
Excerpt:
.....courts - as per terms of contract rs. 2000 became payable as soon as four nullahs were cleared of their contents and entire floatage had passed confluence of nullahs at khanagi - admittedly this work had been completed by defendants before arrival of plaintiffs' men - plaintiffs never paid this amount to defendants - said breach on part of plaintiffs had effect upon alleged breach by defendants - defendants perfectly justified in leaving off work after failure of plaintiffs to pay them rs. 2000 according to terms of contract - no breach of contract on part of defendants - findings that defendants committed no breach of contract sufficient for dismissal of plaintiffs suit - remand wholly unjustified in that it sought to give plaintiffs another opportunity of proving their case after..........to -/11/6 per sleeper. in case of stoppage, delay or mismanagement in the carrying out of the work the defendants were to be liable to the plaintiffs in damages for any loss sustained by; the latter. the defendants were to be responsible for supply of ration to their labour. rs. 5,000/- were paid by the plaintiffs to the defendants by way of advance. rs. 2,000/- were to be paid to the defendants on the collection of the floatage of all the nullahs and on the plaintiffs receiving their instalment of money from the government. the rest of the money due to the defendants would be recoverable by them on the floatage reaching its destination.3. the plaint allegation was that the defendants did go to the work taut fled away with the labour employed by them after doing the work for a few.....
Judgment:

Chowdhry, J.C.

1. These are two appeals by the defendant's arising out of a suit of the plaintiffs-respondents for recovery of Rs. 3,000/- as compensation for breach of a contract.

2. The plaintiffs had taken from the Government a contract for floating sleepers of wood down certain streams, and part of that work was entrusted by them to the defendants under a contract dated 17 Har 2004 B. In order to understand the terms of the contract it is necessary to be clear with regard to the topography of the scene of the defendants' work. The plaintiffs had depots at the upper reaches of four nullahs. The defendants had to launch sleepers at these depots into the four nullahs and float them down the streams until they met at a point known as Khanagi. Thereafter the sleepers were to be floated through a single and a deeper channel, known as Killan Khud two or two and a half miles in length, before this channel joined the main channel called Bakhal Khud at a point known as Killan. After floating the sleepers from the Killan Khud into the Bakhal Khud the defendants had so to arrange the sleepers in the latter Khud that the same should float down the Bakhal Khud in a proper manner. The defendants' work, however finished after they had so arranged the sleepers in the Bakhal Khud. They had nothing to do with the further floating of the sleepers down the Bakhal Khud.

It appears that the plaintiffs, were to bring another floatage of sleepers down the Bakhal Khud from a point or points above Killan. No time limit was fixed in the contract between the parties for the defendants carrying out their work, but it was stipulated that they should carry it out as soon as possible and in any case before the arrival of the plaintiffs' floatage. In other words, the defendants were to float their quota of sleepers down the four nullahs, then along the Killan Khud and finally into the Bakhal Khud at the meeting of the two Khuds at Killan, and thereafter to properly arrange the floatage in the Bakhal Khud before the arrival of the plaintiffs' floatage of sleepers at Killan. The defendants were to employ labour according to need which was in no case to be less than eight men per thousand sleepers. They were to be paid at-/11/-per sleeper of specified dimensions. Payment in respect of sleepers of other dimensions was to be made according to the rates fixed by the Forest Department. This rate, it is common ground, was subsequently raised to -/11/6 per sleeper. In case of stoppage, delay or mismanagement in the carrying out of the work the defendants were to be liable to the plaintiffs in damages for any loss sustained by; the latter. The defendants were to be responsible for supply of ration to their labour. Rs. 5,000/- were paid by the plaintiffs to the defendants by way of advance. Rs. 2,000/- were to be paid to the defendants on the collection of the floatage of all the nullahs and on the plaintiffs receiving their instalment of money from the Government. The rest of the money due to the defendants would be recoverable by them on the floatage reaching its destination.

3. The plaint allegation was that the defendants did go to the work taut fled away with the labour employed by them after doing the work for a few days. Debiting the defendants with Rs. 17,000/-, i.e. with the aforesaid advance of Rs. 5,000/- and with a sum of Rs. 12,000/-which, according to the plaint, the plaintiffs had to spend in completing the work, and crediting them with Rs. 13,000/-, i.e. with Rs. ,11,500/- as the amount which the plaintiffs would have had to pay to the defendants had the latter completed the work and a further sum of Rs. 1,500/-as due to the defendants on account of the work actually done by them, it was alleged that a sum of Rs. 4,000/- was due and owing by the defendants to the plaintiffs. The plaintiffs gave up Rs. 1,000/- and filed the present suit for recovery of the balance of Rs. 3,000/-.

4. The defendants pleaded that their coolies continued to work upto the very end, that it was the plaintiffs who broke the contract in that they refused to pay Rs. 2,000/- to the defendants according to the terms of the contract when the defendants collected the sleepers after floating them down the nullahs, and that thereafter when only little work remained to be done the plaintiffs introduced their surplus labour without informing the defendants. The defendants denied their liability for any compensation to the plaintiffs and contended that the plaintiffs themselves were liable to pay them about Rs. 7,000/-.

5. The trial Court framed the following two issues:

'(1) Whether the defendants did not execute their contract in accordance with the agreement?

(2) If issue No. 1 is proved in favour of the plaintiffs, how much labour they had to employ, and what did they spend on that labour?'

The onus of proving both the issues was placed upon the plaintiff's. The first issue was decided in favour of the plaintiffs, the finding of the Subordinate Judge being that the defendants had failed to fulfil their part of the contract. On issue No. 2 he was of the opinion that a sum of Rs. 1,600/- was payable by the defendants to the plaintiff's, that being the amount which he found the plaintiffs to have spent to complete the work. Accordingly, he passed a decree for Rs. 1,600/- in favour of the plaintiffs and against the defendants.

6. Both the parties went up in appeal to the District Judge. The District Judge agreed with the finding of the trial Court on issue No. 1. As regards issue No. 2, although he held that the plaintiffs had failed to substantiate their claim by production of their account books and other satisfactory evidence, he remanded the case for re-decision after framing the necessary issue and placing the onus of its proof on the plaintiffs, because, in his opinion, the trial Court had not adopted the proper method to calculate the loss suffered by the plaintiffs on account of the breach committed by the defendants. What the proper method was, was pointed out by the District Judge in his judgment. It is against this order of remand that the defendants have come up in appeal to this Court, and, since the said order of remand disposed of the appeals of both the parties, the defendants have as a measure of abundant caution filed two separate though identical appeals in this Court.

7. The learned counsel for the defendants-appellants began by justifying the filing of two appeals in this case. The learned counsel for the plaintiffs-respondents advanced no argument in this connection. It may, however, be stated here that it was not necessary for the defendants to have filed two appeals in this case. Their learned counsel justified the filing of two appeals on the authority of--'Badal Das Jethmul firm v. Gurdinomal Narumal firm', AIR 1939 Sind 329 (A), It was held there that where two suits or two appeals between the same parties and raising the same question are tried together but separate and independent judgments are given in each, or where the two suits or appeals are tried by two different Courts and separate judgments are delivered, and a party appeals from one leaving the other to become final against him, the rule of res judicata will apply and the appeal preferred by him will be barred. In the present case the two appeals were not decided by two different Courts, and the lower appellate Court disposed of both the appeals by a single judgment. The conditions laid down in that ruling were therefore, not satisfied and it would, therefore, have been sufficient for the defendants to file but one appeal in this Court.

8. The first question argued was that of breach of contract. It may be mentioned here that the present was a suit for recovery of a specific amount as compensation for alleged breach of contract. The defendants no doubt pleaded that breach had emanated from the plaintiffs, and that they (the defendants) were entitled to recover about Rs. 7,000/- from the plaintiffs; but the defendants did not press that plea any further. They paid no court-fee in respect of their counter claim, and at no stage have they questioned the omission of the trial Court to take any action on that plea of theirs. It is manifest, therefore, that there could be no question of going into the accounts without the plaintiffs first substantiating their contention that the defendants had broken the contract. Both the Courts below have, however, given only a cursory attention to this matter, and they seem to have thought that the main thing was the disposal of the second issue. The trial Court recorded a telegraphic finding on this issue. It was as follows:

'The defendants themselves admit in para 2 of their Jawabdawa that they could not fully execute their part of the contract. The reasons assigned are that the plaintiffs did not pay them the balance money when demanded. Secondly, one of their jamadars with his men fled. The issue is decided in favour of the plaintiffs.'

There is no doubt that in para 2 of the written-statement the defendants did say that they had broken the terms of the contract, but, as was conceded by the learned counsel for the plaintiffs-respondents himself in the course of arguments in this Court, a perusal of the entire paragraph shows that the word defendants was inadvertently used for plaintiffs in that sentence. This is abundantly clear to anybody who reads the entire paragraph, and should have been so to the trial Court also. That being so, the trial Court was not justified in deciding this issue on the so-called admission of the defendants themselves. It is against judicial integrity to find such a shortcut to decision on a seeming, but not real, admission of a party. On appeal the learned District Judge stated that he agreed with the finding of the trial Court on the first issue. It should have been apparent to him, however, that, for reasons recorded above, the so-called finding of the trial Court was really ino finding. The reasons adopted by the learned District Judge himself for agreeing with the finding of the trial Court on that issue were only a trifle more exhaustive than those given in the trial Court's judgment. The first reason given by the learned District Judge was that the defendants did not employ sufficient labour. Firstly, that was not a plaint allegation. Secondly, the learned District Judge did not show how he arrived at that conclusion. The next reason given by him was that a part of the defendants' labour left the job unfinished and the plaintiffs were forced to employ their own labour under the orders of the Government official in charge of the 'ghal' work. Again, there is only; this ipse dixit of the learned District Judge without any attempt on his part to support it by reference to any evidence on the record. After these two sentences follows the finding of the learned District Judge that the plaintiffs were entitled to claim damages from the defendants. It is clear, therefore, that the first issue, which was the primary issue in the case, received scant attention from the two Courts below. I now proceed to dispose of that issue in the light of the evidence on record and the arguments advanced by the learned counsel for the parties before me.

9. The plaintiffs' allegation in the plaint with regard to breach of contract by the defendants was, as adverted to above, that although the defendants did go to the work they fled away with the labour employed by them after doing the work for only a few days. In his statement under Order 10, Rule 2, C. P. C., Hari Singh, one of the plaintiffs, also stated that the defendants' men 'fled away before finishing the work. In the notice Ex. P. O. which the plaintiffs gave to the defendants before the institution of the present suit it was alleged that the defendants failed at the very launching depots, that the work of the defendants' labour was not satisfactory in any of the nullahs as a result of which the plaintiffs had to send their own labour to those nullahs, that the defendants' men who were only a few in number fled away one after the other and they had no labour at the end, that sleepers were not floated down the nullahs in time and the water of the nullahs dried up with the result that the plaintiffs had to spend a month or a month and a half over work in the nullahs which should have taken only a week or a week and a half, and that the work in question was considerably delayed with the result that the plaintiffs' other work down the Bakhal Khud was also delayed causing considerable loss and damage to them. It will be noticed that no allegation of delay was made in the plaint. Prom the said allegation specifically made in the plaint, and further cleared by the plaintiffs in their notice, it would appear that the breach alleged against the defendants was that they left the work only a, few days at the early stages of launching at the depots without floating the sleepers down, any of the four nullahs. The evidence on the record, including admission of the plaintiffs' own witnesses however, shows that these allegations were wholly unfounded.

10. The defence contention, on the other hand, was that the defendants' coolies continued to do the work upto the very end, that it was the plaintiff's who broke the contract by refusing to pay Rs. 2,000/- to the defendants after the sleepers, had been floated down the nullahs, and that thereafter when only a small part of the work, remained to be done the plaintiffs introduced labour of their own which had become surplus, without informing the defendants. The defendant Sada Nand and the defence witnesses have supported his defence contention. (After discussion of the evidence the judgment proceeds:--) It is; impossible in these circumstances to hold that. there was any breach of contract on the part of the defendants.

11. After recording the above finding that the defendants committed no breach of contract, it is really not necessary to go any further. That finding is sufficient for the dismissal of the plaintiffs' suit. It may, however, be stated that the defence contention with regard to the breach having emanated from the plaintiffs is correct. As already stated, Rs. 2,000/- were payable to the defendants on the collection of the floatage of all the four nullahs. It was argued by the learned counsel for the plaintiffs-respondents that the defendants did not become entitled to this amount when the floatage of all the four nullahs had reached the confluence of those nullahs at Khanagi point because, he said, the sleepers of the four nullahs may not collect there but beyond that towards Killan. He further argued that the amount became payable only after all the sleepers had collected beyond Killan in Bakhal Khud. Such an interpretation renders wholly redundant the subsequent clause regarding the balance becoming payable on the arrival of the floatage at its destination. The destination was the Bakhal Khud beyond Killan, so that according to the interpretation of the learned counsel for the plaintiffs-respondents both Rs: 2,000/- and the balance of account would be payable on the arrival of the floatage there. This was certainly not the intention of the contract which clearly sought to make a distinction between the two spots, one where Rs. 2,000/- was to become payable, and the other where the balance of account was to be cleared. The latter was the spot where the defendants' work finished, i. e. the spot in Bakhal Khud immediately beyond Killan point where the entire floatage had to be spread by the defendants in such a way that it may be in a position to float down further.

The spot where Rs. 2,000/- was payable was an earlier one, and that was where the floatage of all the nullahs collected. Of course, from the very nature of the work it was not possible for the entire floatage to collect at one spot, for the sleepers must float down the Killan Khud between Khanagi and Killan in a long procession. Evidently, therefore, the stress in the phrase 'on the collection of the floatage of all the nullahs' was not merely on the word collection but on the entire phrase. In other words, Rs. 2,000/- became payable as soon as the four nullahs were cleared of their contents and the entire floatage had passed the confluence of the nullahs at Kha-nagi. That this work had been completed by the defendants before the arrival of the plaintiffs' men has been admitted by the plaintiffs' own witnesses, as adverted to above. The' plaintiffs, however, never paid this amount to the defendants. This breach on the part of the plaintiffs had an effect upon the alleged, breach by the defendants. Although it has been found above that there was no breach of contract by the defendants, the latter would have been perfectly justified in leaving off work after failure of the plaintiffs to pay them. Rs. 2,000/- according to the terms of the contract. In view of the above evidence and circumstances, I hold, disagreeing with the two Courts below, that there was no breach of contract by the defendants. The first issue is accordingly decided against the plaintiffs.

12. The first issue having been decided against the plaintiffs, the second does not arise. It may, however, be stated that even if the finding on the first issue were in favour of the plaintiffs the suit is still liable to dismissal due to their having totally failed to discharge the onus with re-gard to the second issue. The trial Court discarded the plaintiffs' evidence but gave them a decree for Rs. 1,600/- on the finding that they employed 40 men for 20 days to complete the defendants' part of the job. How that finding was arrived at it is difficult to understand. The learned District Judge rightly remarked that the plaintiffs had to substantiate their allegation that they had to spend Rs. 12,000/- in completing the work. At the same time he remarked that no accounts were either produced or shown to the Court by the plaintiffs to prove the total expendi- ture incurred by them, and that without that it was not possible to determine the loss which they had suffered on account of the breach committed by the defendants. He again, remarked that the plaintiffs had to substantiate their claim for damages by production of their account books and other satisfactory evidence to show the total expenditure incurred by them, and that this had not been done. In spite of these remarks, however, the learned District Judge remanded the case to the trial Court for a redecision. In fact, the reason for remand given by the learned District Judge was that the plaintiffs had failed to substantiate their claim. If the plaintiffs had failed to substantiate their claim, the only proper order that the learned District Judge should have passed was to dismiss their suit. He was not justified in giving the plaintiffs another opportunity of proving their case. The learned counsel for the plaintiffs-respondents sought to justify the action of the learned District Judge by contending that the second issue had not been properly framed. This is riot correct. The learned counsel admitted that the plaintiffs had to prove that they had spent Rs. 12,000/- in completing the work. This point has been clearly brought out in the second issue. He cited a number of rulings, e.g.--'Raghuraj Singh', v. Majid-un-nissa', A. I. R. 1925 Oudh 692 (B);--'Bhup Singh v. Prem Singh', AIR 1924 Lah 362 (C)--'Kari Bapanna v. Sunkari Yerramma', AIR 1923 Mad 718 (D);--'Tin Maung v. Mg. Po Htoo', AIR 1927 Rang 192 (E)',--'Sundara Rama Iyer v. Sathianathan', AIR 1927 Mad 1190 (E) and--'Province of Bihar v. Choudhary Balam Singh', AIR 1950 Pat 356' (G). None of these cases, how-ever, justified a remand, as in the present case, where the party was given another opportunity to prove its case although it failed to do so in the trial Court without any justification and in ispite of a clear issue. The order of remand in the present case was, therefore wholly unjustified. Furthermore, the learned counsel for the plaintiffs-respondents did not point out any evidence on the record from which it could be said that the plaintiffs had proved any part of their claim for compensation. Their suit was, therefore, liable to dismissal on findings on both the issues.

13. There was one point argued by the learned counsel for the plaintiffs-respondents which might be briefly dealt with. He did not say that no appeal was competent, but that the defendants should not have filed an appeal at this stage but should have rather come up in second. appeal after the case had been decided by the trial Court on remand and also the appeal by the District Judge from that decision of the trial Court. In support of this argument the learned counsel cited--'Jainul Ahideen Marakayar v. Habibullah Sahib', A. I. R. 1928 Mad 430 (H). That ruling interprets the relevant law, i. e. Sub-section (2) of Section 105, C. P. C., which lays down that where any party aggrieved, by an order of remand made after the commencement of the Code from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness. On the face of it, if the course suggested by the learned counsel for the plaintiffs-respondents had been followed by the defendants they would have been precluded from disputing the correctness of the order of remand. All that the ruling laid down was that under the said provision the correctness of the order of remand could be questioned on only two grounds, i. e. that the remand itself was illegal as the decision of the first Court was not on a preliminary point, or that the decision of the preliminary point by the appellate Court was erroneous. Supposing the order of remand passed by the lower appellate Court in this case was one under Order 41 Rule 23, C. P. C., the present appeals would be competent according to this very ruling because the appeals impeached the correctness of the order of remand on the ground that the decision of the lower appellate Court on the preliminary point which was the subject-matter of the first issue was not correct. The objection raised by the learned counsel for the respondents has, therefore, no force. It may, however, be stated, here in passing that the order of remand passed by the learned District Judge was not under Order 41 Rule 23 since the trial Court had not disposed of the suit on a preliminary point but had, on the contrary, decided all the issues that arose for determination. The point need not, however, be laboured any further since from what has been stated above it is clear that the remand was wholly unjustified in that it sought to give the plaintiffs another opportunity of proving their case after they had failed once to do so.

14. The appeals are allowed, the judgment anddecree of the trial Court and the judgment andorder of the lower appellate Court are set asideand the plaintiffs' suit is dismissed. The defendants are allowed their costs in all the Courtsagainst the plaintiffs.


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