P L D 1961 (W (PLP)

WAHEEDUDDIN AHMAD, J.‑--This is a defendant appeal against the judgment of Mr. Abdul Kadir

1. Kazi, the then First Class Sub‑Judge. Hyderabad, in First Class Suit No. 24 of 1952, dated 31st March 1958, awarding the plaintiff'/respondent a decree in the sum of Rs. 12,000 and costs in respect of a claim for the refund of the amount paid in advance and damages arising out of the contract for the supply of 300 maunds of cotton pods. Briefly, the facts leading, to this first civil appeal are that the parties entered into three contracts for the supply of 300 maunds of cotton pods in April 1951. The plaintiff'/respondent case is that on the 3rd of April 1951, the appellant entered into a contract (Exh. 35) for the supply of 100 maunds of cotton pods at the rate of Rs. 24 per maund on the definite understanding that each maund will consist of 42 seers and the delivery will be made between the 1st of October 1951 and 1st of November 1951 at Tando Allahyar. He paid towards this contract Rs. 2,500 in advance to the appellant. His further case is that the appellant also entered into two contract (Exhs. 36 and 37) on the 12th of April 1951 for the supply of 50 maunds and 150 maunds of cotton pods respectively at the rate of Rs. 20 per maunds, each maund being of 42 seers, on the condition that the delivery of the goods will be made between the 1st October 1951 and the ‑15th of October 1951 at Tando Allahyar. The respondent in respect of these contracts, also paid Rs. 1,000 and Rs. 3,000 respectively as advance to the appellant. It is alleged that the appellant failed to perform the above‑mentioned contracts and the respondent on account of the said breach sustained loss of Rs. 5,500 being the difference between the contract price and the prevalent market price namely, Rs. 40 per maund on the 15th of October 1951. As the appellant failed to perform the contract and fulfil the demand of the respondent, the respondent on the 28th of April, 1952 brought Suit No. 24 of 1952 for the recovery of a total sum of Rs. 12,000 in the Court of the First Class Sub‑Judge, Hyderabad. The suit was resisted by the appellant on the ground that it was bad for misjoinder of cause of action and was barred under section 69 of the Partnership Act. The appellant admitted his signatures on the three contracts in dispute and also the receipt of the advance payment, but contended that he is an illiterate person and was not aware of the contents of the written contracts. He therefore denied the allegation that the delivery of the goods in dispute was to be made at any Karkhana at Tando Allahyar or that he agreed that the price of cotton pods was fixed at Rs. 20 of Rs. 25 for a maund of 42 seers or that a maund, was to be taken to be of 42 seers. He further claimed that he was an agriculturist and had already satisfied the contracts entered into with the respondent and has supplied him 375 maunds of cotton pods through Allah Bachayo Shah, an agent of the respondent. He repudiated the claim for the refund of the amount and for the damages and denied his liability in respect of the claim made against him. The learned Subordinate Judge, on the evidence produced by the parties, came to the conclusion that the appellant committed breach of the contracts and the respondent was entitled to a decree for the refund of Rs. 6,500 paid by him in advance towards the performance of the contracts and Rs, 5,500' as damages. He also found that the appellant was not an agriculturist and that the suit was not bad for mis-joinder of causes of action. He further held that the suit was not barred under section 69 of the Partner ship Act. Mr. Mazharali, the learned counsel for the appellant, has attacked the judgment of the learned Subordinate Judge on several grounds. He challenged the findings of the trial Court on the status of the appellant, on the question of mis-joinder of causes of action and maintainability of the suit under section 69 of the Partnership Act. On merits he raised an objection that the appellant alone was not entitled to file a suit in respect of the claim arising out of the two contracts (Exhs. 36 and 37) dated 12‑4‑1951. In the alternative he contended that on the evidence on the record it should have been found that the appellant has satisfied all the contracts and the respondent has failed to prove damages. We will separately consider the points raised on behalf of the appellant in this appeal. On the first point whether the finding of the learned Sub ordinate Judge in respect of the status of the appellant that he was not an agriculturist, it will be sufficient to point out that the burden of the issue ' in this case was wrongly placed on the appellant. In paragraph 1 of the plaint there is a specific allega tion by the plaintiff/respondent that the appellant is not an agriculturist within the meaning of the Deccan Agriculturists Relief Act. It was, therefore, incumbent on the respondent to prove that the appellant was not an agriculturist. But both the parties have led evidence on the point under consideration. The statement of the appellant on oath shows that his main source of income is from agricultural land and the evidence of the respondent does not rebut this fact. There is nothing in the evidence produced on behalf of the respondent to show that the main source of the appellant's income is from any other source except agricultural land. On this evidence we are fully satisfied that the appellant is an agriculturist but this finding is not of any material consequence in this appeal because at best on the basis of this finding the appellant is only entitled to lead oral evidence in respect of the three contracts (Exhs, 35, 36 and 37) to show the real nature of the transaction entered into between the parties. We will, therefore, consider the effect of this finding presently. On the second point, the evidence led by the parties con clusively proves that the contract (Exh. 35) dated 3rd April 1951 in respect of 100 maunds of cotton pods was entered into between the appellant and the respondent, whereas the two contracts (Exhs. 36 and 37) dated 12th April 1951 were entered into not only between the appellant and the respondent but between persons who are not parties to the suit. But strictly speaking, the provisions of Order II, Rule 3, C. P. C., as regards the mis-joinder of the causes of action cannot possibly be applied to this case. On the allegations in the plaint the respondent filed a suit on the basis that all the three contracts were entered into between him and the appellant. Ordinarily the question of mis-joinder of causes of action must be decided on the allegations in the plaint and not on what is found to be the correct situation ultimately. It, therefore, appears to us that the finding of the learned Subordinate Judge on the question of mis-joinder of causes of action cannot be attacked on the basis on which the suit was brought before him. Mr. Mazharali, the learned counsel for the appellant, also urged before us that the suit is barred by section 69 of the Partnership Act, but this contention also cannot be upheld as the suit in question was brought on behalf of only one person on the basis of the allegation that the contracts in question were entered into between him and the appellant. Section 69 of the Partnership Act applies to those cases only where the plaint shows that the dispute in respect of which the suit is brought was for the benefit of the partnership and the plaintiff has either brought the suit for the benefit of the partnership or has based his claim in respect of a transaction which was entered into between the partners and the defendant. In the present case, as already observed, the respondent alone filed the suit and there is no allegation in the plaint that the benefits of the contracts in dispute also goes to some other persons. As such, the finding of the learned Sub, ordinate Judge that the suit is not barred under section 69 is also not open to question. This brings us to the most important question involved in this matter namely, whether the plaintiff/respondent was entitled to sue in his own name in respect of those contracts which were entered into between him and Seth Muhammad Ibrahim on the one side and the appellant and one Miro Khan in respect of one contract and with the appellant alone sin respect of the second contract entered into on the 12th of April 1951. No specific plea was raised on behalf of the appellant in this respect in the pleadings but the very fact that the appellant denied his liability and raised the question that the suit is barred under section 69 of the Partnership Act shows that he disputed the right of the respondent alone to bring the suit in respect of the two contracts entered into on the 12th of April 1951. Mr. B. H. Zaidi, the learned counsel for the respondent, has urged before us that as no specific issue was raised on this particular question it is not open to the appellant to raise this point before the appellate Court. He also contended that this point was also not specifically taken in the grounds of appeal. The contention of the learned counsel has not impressed us at all. The issues framed by the trial Court also include the following two issues (4) Is the plaintiff entitled to the return of Rs. 6,500 paid to the defendant as advance price of contracted cotton pods? (5) Is the plaintiff entitled to recover damages and actual rate? Under these two issues the burden to prove that he was entitled to the return of the advance amount paid by him and damages is on him and under them he is also bound to show that the contract entered into by him and Seth Muhammad Ibrahim could be enforced by him alone. Truly speaking, the question for consideration in this case is what is the effect of not joining Seth Muhammad Ibrahim as plaintiff in respect of the two contracts entered into on the 12th of April 1951. Under section 43 of the Contract Act where two or more persons have made a joint promise, the promisee may, in the absence of express agreement to the contrary, compel any of such joint promisors to perform the whole of the promise, and on this basis the fact that Miro Khan who was one of the promisors in respect of the contract (Exh. 36) was not joined will not have a far‑reaching effect on the maintainability of the suit against the appellant but under section 45 of the Contract Act the right to claim performance of. a promise in the case of joint promisees rests within them during their life time and one promisee alone cannot maintain a claim against the promisor in respect of contract entered into by them. In view of this important provision of law it was necessary for the respondent to allege in the plaint that the rights of Seth Muhammad Ibrahim arising out of contracts (Exhs. 36 and 37) have either been assigned to him or that he was not joined as a party to the claim arising out of these contracts for some other cogent reasons, but no such allegation is made in the plaint. Curiously enough, the respondent in his examination‑in-chief as P. W. F (Exh. 34) was not examined in respect of this important question. He was, however, cross‑examined by the counsel for the appellant in the trial Court and his explanation for not joining Seth Muhammad Ibrahim is that although Seth Muhammad Ibrahim was interested in the contracts (Exhs. 36 and 37) but as he had made him responsible for the transaction he had already given him 25 maunds of phutti and he is no longer interested in these contracts. In this connection he stated as under "I see Exh.

36. It is Kabala in respect of 50 maunds. It is by Jafar Khan and Miro Khan jointly. Miro Khan has not been joined as a party as he was merely surety for Jafar Khan. I have not stated in my plaint that Miro Khan was surety. I had purchased the 50 mds. of phutti in .partnership with Ibrahim s/o Gul Muhammad. At first the defendant had contracted to sell to me 25 mds. of phutti but later he said that he required more money to pay the land revenue assessment and as I could not pay him all the amount for 50 mds. Ibrahim was made a partner. He had made me responsible to him for the transaction and I had given him 25 mds. of phutties. I see Exh.

37. It is of 150 mds. In that too Ibrahim is a partner Ibrahim is alive and so is Wadero Hamid." On the above‑mentioned statement it is not possible for us to hold that Seth Muhammad Ibrahim has no longer any interest in the contracts (Exhs. 36 and 37) or that the respondent is alone entitled to sue in respect of the claims arising out of these contracts. Seth Muhammad Ibrahim was not examined as a witness on behalf of the respondent and therefore the allegation that the respondent had already given him 25 maunds of phutti and he is no longer interested in the contract (Exh. 36) cannot be accepted. In our opinion, on the evidence on the record, it is absolutely clear that Seth Muhammad Ibrahim should have been joined in respect of the claims arising out of the contracts (Exhs. 36 and 37) and the; respondent is neither entitled to claim the refund of the amount paid as advance from the appellant nor is he entitled to claim any damages from him, in respect of the alleged breach of the said contracts. We are, therefore, clearly of the view that the learned Subordinate Judge was wrong in awarding any decree in respect of the claim arising out of the contracts (Exhs. 36 and '37). On the above‑mentioned finding, however, it cannot be held that the respondent is not entitled to any relief, in respect of contract (Exh. 35) which was entered into only between him and the appellant. Under Order I, Rule 9, C. P. C., no suit can be defeated by reason of the mis-joinder or non joinder of parties an d it is open to the Court to deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. Mr. Mazharali, the learned counsel for the appellant has not been able to satisfy us why the claim arising out of contract (Exh. 35) dated 3rd April 1961 is not enforceable against the appellant. The learned counsel referred us to the evidence of D. W. 1 Allah Bachayo Shah, D. W. 2 Sher Khan, D. W. 3 Ghulam Shidi and D. W. 4 Jaffar, the appellant, to show that the appellant had fulfilled all the contracts entered into with the respondent and other persons and had supplied him much more quantity of cotton pods than was agreed upon under contracts (Exhs. 35, 36 and 37). The evidence of D. W. 1 Allah Bachayo Shah does not at all support the appellant's case. There is nothing in the evidence of this witness to show that be was the agent of the respondent or that be took delivery of any goods from the appellant in that capacity. His statement only shows that he is a weighman and has been taking delivery of the goods from D. W. 2 Sher Khan on behalf of the respondent. But he admitted in his evidence that he was not the man or agent of the respondent and further admitted that he did not deliver any phuttis to P. W. 1 Muhammad Achar, D. W. 2 Sher Khan is related to the appellant. D. W. 3 Ghulam Shidi appears to be a hired person. No reliance can be placed on their statements as both of them have gone much further 'than what Allah Bachayo Shah stated. The appellant's evidence about the supply of 375 maunds to Allah Bachayo Shah is most untrustworthy. The various receipts proved by D. W. 1 and produced by D. W. 2 Sher Khan are also most unreliable documents. In these circumstances we fully agree with the finding of the learned Subordinate Judge that the appellant has miserably failed in his attempt to prove fulfilment and satisfaction of any of the contracts in dispute. On the evidence before us we are fully satisfied that the appellant‑ committed breach of the contracts (Exh. 35) dated 3rd April 1951 and has not fulfilled his promise under it. The learned counsel for the appellant referred us to the statement of D. W. 4 Jafar the appellant to show that one of the terms of the contract (Exh. 35) that phutti was to be supplied at the rate of Rs. 25 per maund and one maund will consist of 42 seers is not correct. It is true that the appellant on the finding that he is an agriculturist was entitled to show the real nature of this transac tion but he has miserably failed in this respect. His statement that the respondent has played a fraud on him and has taken advantage of his illiteracy is not at all inspiring and does not appear to be a true version. We will, therefore, hold that the appellant is liable to refund the amount of Rs. 2,500 paid as advance in respect of the contract (Exh. 35) dated 3rd April 1951. Mr. Mazharali also contended before us that the learned trial Judge was not justified in awarding any damages to the respondent in this case because he has not been able to prove the market rate prevalent on 2nd November 1951, the date of the breach of the contract. The grievance of the appellant in this respect is well‑founded. Except the bare statement of the respondent that the market rate of the goods in dispute on the date of the breach was Rs. 40 there is no other independent evidence to establish this fact. P. W. 1 Muhammad Achar the respondent admitted in his cross‑examination that he entered into contracts for the supply of cotton pods with factories in October and November 1951 but he was unable to give the rates on which these contracts were entered into with them. He did not even produce any representative of the‑factories to prove the rates on which he agreed to supply the cotton pods to them. The respondent did not even produce any reliable evidence to prove that the market rate of the goods in dispute in the month of November was Rs. 40 per maund. He only produced P. W. 4 Warandumal a member of the Cotton Association, Hyderabad. This witness made a general statement that in 1951‑52. the rate of phutti or cotton pods was from Rs. 39 to Rs. 41 per maund. He, however, produced no documentary evidence in support of his statement. In cross‑examination he admitted that he did not possess rates even of cotton before 1st December 1951 and he also admitted that he did not have with him any document to show what was the rate of cotton on 15th December 1951. He stated in examination‑in‑chief that on 1st December 1951 the rate of cotton was Rs. 121 and one‑third would be phutti rate. On this evidence it is not possible for us to agree with the finding of the learned Subordinate Judge that the respondent has properly discharged the burden to establish the market rate of the goods in dispute for the month of November 1951. The appellant on oath denied that the rate of phutti in November 1951 was Rs. 40 per maund. In view of the evidence led by the parties we are clearly of the opinion that there is no satisfactory evidence on the record to establish that the rate of cotton pods in November 1951 was Rs. 40 and the learned Subordinate Judge was not justified in awarding damages on the difference of the contract price and on the alleged market rate on the date of the breach of the contract. The reasoning of the learned Subordinate Judge that the rate of the cotton pods in November 1951 must have been more and the respondent therefore was entitled to claim damages at the rate of Rs. 40 is a mere surmise and conjecture and has no value in the eye of law. We, will therefore, set aside the finding of the learned Subordinate Judge in respect of the damages awarded by him arising out of the breach of the contract (Exh. 35). On the above finding the respondent is only entitled to a decree of Rs. 2,500 for the return of the advance amount in respect of contract (Exh. 35) dated 3rd April 1951. Accordingly we will modify the decree of the trial Court to the extent of the claim of the respondent accepted by us. In the circumstances of the present case the parties will bear their own costs throughout. K. B. A. Appeal partly accepted.