Shiam Krishna Dar, Member
1. This is an appeal against a judgment & decree of the H.C. dated Poh 22, 2005, by which is reversed a judgment & decree, dated Bhadun 15, 2003, of the Subordinate Judge of Kathua, in a suit for damages for breach of contract.
2. On chet 24, 1971, the reap. & his brother Manoon executed a mtge. of half of the village Chingran in Tehsil Kathua, in favour of the applt. for Rs. 15555. After the death of Manoon the resp. succeeded to Manoon's interest in the estate & on Baisakh 13, 1990 he executed an agreement in writing & registered in favour of the applt. undertaking to sell half of the villnge Chingran after excludirg certain area therein specified for a sum of Rs. 22,500. By the agreement, the conveyance of the sale was to be executed within one week of the agreement & the sale consideration was to be set on in satisfaction of the said mtge. & of certain debts which were due to the applt. from the resp. & a sum of Rs. 1000 in cash & a promissory note for Rs. 3000 was to be given to the resp. by the applt. at the time of the registration of the conveyance.
3. The promised sale-deed was never executed either within the time fixed in the agreement or after the notice for execution which was served by the applt. on the resp. on Jeth 4, 1990. After waiting for two years for the execution of the sale. deed, the applt. put his debts in suit and his decrees in execution & recovered the amount due thereunder by process of law from the resp. In the course of execution, which was thus levied by the applt. an opportunity was granted afresh to the resp. to execute the sale-deed but he did not avail of it.
4. Just one day before the expiration of the period of twelve years; from the date of execution of the agreement, the applt. instituted a suit out of which this appeal has arisen, for recovery of a sum of Rs. 5000 as damages for the breach of contract. The applt. alleges, which is a fact, that the deft. has broken the agreement of sale mentioned above & he asserts that the market price of the property agreed to be sold far exceeded the agreed price of sale & he claims & limits his consequential damages to Rs. 5000.
5. This claim is resisted on two main grounds, namely, that the agreement was induced by undue influence & is not binding & even if it be regarded as binding the applt. suffered no damages by the breach. On both these pleaa. the trial Ct. & the Court of appeal have come to opposite conclusions & it has, therefore, become necessary for the Board to examine the evidence afresh & to come to their own independent findings.
6. Up to a certain stage, the facts are not in dispute. The applt. & the resp. both are the residents of village Chingran & both belong to Argionlturist class, but the applt. is also a money lender & the resp. is the lambardar of the village. At the time when the agreement was made the resp. was indebted to the applt. for a sum of about Rs. 3000 & in regard to some of these debts the applt. had obtained decrees, one of which he had put into execution for a sum of Rs. 1566 about a month before the agreement was executed, & the execution of this decree was sought by arrest of the resp. The resp. alleges that he was unable to pay the amount of this decree & in execution he was put into prison & was released by offering security & to avoid his further imprisonment, he executed the agreement by which he agreed to sell tha valuable property for a comparatively low price under pressure from the applt.
7. If these allegations could be accepted as correct they would make oat that the applt. was in a position to dominate the will of the resp. & taking advantage of his position he obtained an unfair bargain. And this in law would be sufficient to establish the plea of undue influence.
8. But the only evidence in support of these allegations is the evidence of the resp. himself which the applt. argues is not reliable as it was not properly disclosed in the written statement & is not corroborated in some material particulars by any documentary evidence.
9. There is some justification for this criticism. In the written statement of the reep. the plea of undue influence was mixed up with other pleas in one long para & sufficient particulars were not given of the plea of undue influence. It is also true that there is no documentary evidence to prove that the rasp. had actually come oufe of the prison about the time when the agreemant was executed & the only evidence in support of his imprisonment is the interested testimony of the resp. himself.
10. But the applt. is himself to blame for the predicament in which he now finds himself. The resp. was produced by the appit. as his own witness before tha Ct. He stated that 'he was not prepared to give evidence on his behalf in the case but he was prepared to give evidence on behalf of the pltf'. Notwithstanding this statement the applt. chose to examine him as his witness in the case & allowed him to depose to circumstances in which the agreement was executed & which has been summarised aboye. After this evidence was recorded the applt. did not give hig own evidence at the trial to contradict the resps'. evidenoe nor did he call any other evidence to rebut the-story given by the resp. in regard to the above matter.
11. It is possible that the applt. adopted this course under a mistaken legal advice. The burden of proof of the plea of undue influence was on the resp. It was the clear duty of the resp. to give his own evidence in support of this plea. And only after the reap, had given his evidence, it was the duty of the applt. to give bis evidence in support of his case & to contradict the ease of the resp. And the applt. was not required in any circumstance to cite resp. as his own witness.
12. iT is a bad practice that when parties are in a position to give personal evidence they shoud refrain from entering the witness box. If such evidense is withheld without sufficient cause, the Ct. is not only entitled to but is bound to draw an adverse inference against the party who has thus withhold evidence. It is a still more objectionable practice to cite opposite side as one's own witness. This places the examination & cross-examination of such a witness in wrong hands, nesessitates the criticism of the evidence by the side which has called it & this embarasses fair trial & causes obstruction of justice.
13. But it is too late at this stage to discard this evidence or to order a re-trial. And if legal effect is to be given to it, it sustains the plea of undue influence as found by the H.C.
14. As the agreement has been avoided on theplea of undue influence, it is unnecessary to enterinto the question of the proof of damages. TheH. C. has found that the applt. has given no evidence to prove the market rate of property eitheron the date of the agreement or on the date of thebreach & there was nothing to show whether theagreed price fell short by the market price & if so,by how much & it has dismissed the claim of theapplt. on this ground also.
15. It is, however, necessary to make one or two observations in regard to this finding of the H. C. In a sense this finding is correct because there is no direct evidence on the record to show what was the market rate of the property at the time of the agreement. But for different purposes & for a different object both the applt. & the resp. are agreed that the agreed price was less than the market price of the property. The applt. wishes to rely on this fact to prove his damages & the resp. wishes to rely on it to prove the plea of undue influence. Even if no loss was proved on the finding that the breach was made by the resp. the resp. was entitled to nominal damages. Had the case of applts. not failed oh the plea of undue influence, the question of damages may have required further consideration.
16. The Board will, therefore, humbly advise His Highness that this appeal be dismissal with costs.