P L D 1966 (W (PLP)

A similar receipt was also given to Yusuf. The defendants imported two truck chassis of Morris make in connection with these two contracts and when the defendants received documents in respect of them, they addressed a letter to the Controller General of Prices and Distribution, Ministry of Industries, Karachi on 8th January, 1959, Exh.

14. In this letter the defendants informed the Controller General that they were enclosing the full set of documents together with the bill of entry in respect of two Morris Diesel chassis imported by them against licence issued to them under Export Incentive Scheme and that these should be released to them to enable them to deliver the same to their customers. The Controller General replied to the defendants on 10th March 1959 stating that with reference to their letter of 8th July 1959 and in exercise of the powers conferred on him by clause 3 (2) of the Essential Commodity Distribution Order, 1953 the defendants were accorded permission to sell the two Morris Chassis at prices not exceeding the maximum control rate of Rs. 21,

196. One of these chassis was to be delivered to a customer in West Pakistan and the other to a customer in Karachi. By the second paragraph of the letter the Controller General directed the defendants that the chassis allocated to Karachi shall be sold only against a permit to be issued by the Director of Civil Supplies Karachi and the other chassis allocated to West Pakistan shall be sold only against the permit to be issued by the Chief Secretary to the Government of West Pakistan, Lahore. It was added that if in the former case the delivery was not taken within a period of 21 days and in the latter case within 35 days from the date of the issue of this letter the defendants could sell the two chassis to their own customers or dealers in West Pakistan. With this letter the Controller General returned the documents relating to the import of these chassis and directed the defendants to acknowledge receipt of this letter and report compliance of it.

3. As indicated in the letter of the Controller General two permits were issued in respect of each of the two chassis one on 26th March 1959 and the other on 28th March 1959. The first permit directed delivery of one chassis to Messrs Karachi Flour Millers' Association and the other to Malik Hayat Khan of South Waziristan. The defendants were required to sell the two chassis to the two parties at the price of Rs. 21,

196. According to the evidence given by Akbar Hashimbhoy, defendant No. 2, who was dealing with the plaintiffs in respect of these two contracts and which evidence I believe, when he received the letter of the Con troller General directing delivery of the two chassis to two parties different from those with whom he had contracted, he had appealed to him on the ground that these chassis had been imported upon a special licence. He did not give delivery as directed in that letter with the result that these two chassis were impounded by the Government and seized. The order of the seizure of these two chassis, Exh. 19, was served upon Messrs Kanda Automobiles through whom these vehicles ‑ had been imported and the said dealers informed the defendants by their letter dated 23rd May 1959, Exh. 18, about this seizure and they enclosed a copy of the order whereby these vehicles had been seized. The manager of Messrs Kanda Automobiles, D. W. 3, produced the original of the seizure Order, Exh. 25, and the office copy of their letter dated 23rd May 1959 which they had addressed to the defendants, Exh.

26. He also produced the two letters Of the defendants dated 25th June 1959 and 29th June 1959, Exhs. 27 and 28, whereby they had under the said orders of the Controller General directed the delivery to the two permit holders named above. Messrs Kanda Automobiles had also received similar instructions from the Department of Price Control and Supplies to deliver the two chassis to the two persons named above and having received the consent of the importers as contained in Exhs. 27 and 28 they made the delivery of these two chassis to the said two permit holders. In respect of each of the two chassis the defendants received the price of Rs. 21,197 only as ordered by the Controller General.

4. According to the evidence of Akbar Hashimbhoy he had informed the two plaintiffs of what had happened and had expressed his willingness to refund to them the sum of Rs. 23,700 each which he had received, in view of what had happened. Each of the plaintiffs, however, sent a notice through their lawyers to the defendants oh 11th July 1959, Exhs. 20 and 21, in which they complained that in spite of so much time having passed there was no trace of chassis and in the last para graph of the notice each of them claimed the refund of the sum of Rs. 23,700 which they had paid and the damages stipulated in the contract Viz., Rs. 24,

300. The defendants replied through their lawyers on 4th of August in which the two plaintiffs were told that on the arrival of the chassis the defendants had applied to the Government for release order but the Government issued permits in favour of other parties and they had then no alternative but to comply with the Government order. It was added that the plaintiffs had been informed of all this and the defendants had offered to refund the price of Rs. 23,700 which they had received from each of the plaintiffs. They denied their liability to pay damages in the sum of Rs. 24,

300. By this notice also they reiterated their offer to refund the price of Rs.23,

700. The plaintiffs then filed these suits.

5. It may be noted that the defendants, in reply to the notice as well as in their written statement in both the suits, had all along expressed their readiness to refund to each of the plaintiffs the sum of Rs. 23,700 which they had received from each of them at the time of the contract. They had also deposited these two sums in Court when an application for in junction was made by the plaintiffs to restrain the defendants from transferring their fishmeal factory. The plaintiffs in both the suits bad then applied under Order KII, rule 6, C. P. C. for a decree on admission to the extent of Rs. 23,

700. These two applications in the two suits were allowed by my order dated 7th November 1960 whereby a decree on admission in both the suits to the extent of Rs. 23,700 was granted to the plaintiffs. Both the plaintiffs have withdrawn these amounts. The question, therefore, in these suits which now remains for determination is with regard to the claim of the plaintiffs for the payment of Rs. 24,

300. It would be necessary to bring out the averments in the plaint in these two suits upon the basis of which this sum of Rs. 24,300 has been claimed in each *of them. This is important because both the plaintiffs in their evidence in Court stated that in facts both of them had paid to the defendants a sum of Rs. 24,300 each at the time when the contract was made in addition to the sum of Rs. 23,

700. Suleman s/o Haji Muhammad, the brother of the plaintiff Yusuf in suit No. 165/60, who has given evidence on behalf of the said plaintiff has also attempted to show that even otherwise he was entitled to receive Rs. 24,300 as damages because he had suffered loss due to the non‑supply of the chassis inasmuch as he had not been able to perform a contract with the K. P. T. The other plaintiff Usman (in suit No. 166/60) however has made a straightforward statement in his evidence that he has made the claim for the refund of Rs. 24,300 which he had paid to the defendants over and above the sum of Rs. 23,

700. Let us then see as to what was the case which was set out in the plaint in each of these two suits. The averment in both the plaints are identical.

6. The case set up in the plaints is as follows: That towards the end of July 1958 the defendants 2 and 3 represented to the plaintiffs that the (defendants) were in possession of a valid import licence for the import of two chassis and that they could sell one chassis to each of the two plaintiffs provided each of them paid Rs. 23,700 for each of the said chassis; the defendants further assured the plaintiffs that the transaction was a straight one and that there was no impediment, legal or otherwise, on their power to import and dispose of the said two chassis to whomsoever they pleased; they also assured the two plaintiffs that they would positively give delivery of the contracted chassis by the end of November 1958; that the plaintiffs believing the representation of the defendants to be true paid to them a sum of Rs. 23,700 being the full price of the chassis and as the defendants were receiving the full price of the chassis even before its import and as the plaintiffs were to deny to themselves the benefit of other offers, the defendants agreed to pay to the plaintiffs a sum of Rs. 24,300 as, liquidated damages in addition to the refund of the purchase price of Rs. 23,700 in the event of non‑supply of chassis for any reason. It is added that in fact it was this assurance more than anything else which attracted the plaintiffs to the proposal and impelled them to pay the full price of the chassis.

7. It would, therefore, be clear from the pleadings that the specific case of the plaintiffs in both the suits which was set up was that they had paid only Rs. 23,700 as the full price of the chassis and the defendants had agreed to pay them Rs. 24,300 as liquidated damages because the said price of Rs. 23,700 was being paid by the plaintiffs in advance even before the chassis had been imported.

8. The defendants in their written statement pleaded that the contract between the parties became impossible of performance and, therefore, was frustrated and rendered void because when the two chassis were imported the Government issued permits in respect of them to other parties under the Essential Commodities Order and the defendants had been left with no alternative but to comply with the order of the Government. With regard to the claim made in the suits the defendants admitted to have received the sum of Rs. 23,700 from each of the two plaintiffs and said that they had all along been willing to refund it to them. With regard to the remaining claim of Rs. 24,300 by each of the two plaintiffs the defendants denied that they had agreed to pay this sum as liquidated damages and that it is the plaintiffs who had stipulated that the defendants should pay to them Rs. 24,300 each by way of penalty in case of non‑delivery of the chassis.

9. Upon the pleadings the followings issues were framed "(1) Is the suit as framed maintainable in law ? (2) Is the suit bad in law due to non joinder of the parties? (3) Did the contract become impossible of performance and was frustrated and therefore void? (4) Is the plaintiff entitled to recover a further sum of Rs. 24,300 i.e. in addition to the sum of Rs. 23,700 and whether it is in the nature of penalty or liquidated damages ? (5) Was the contract to supply a diesel engine truck either Morris or Austin? (6) Is the plaintiff entitled to damages? And if so, what is the amount? (7) What should the decree be?" These issues were common to both the suits. , In Suit No. 166/60 there was an additional issue relating to the bar of the suit under section 69 of the Partnership Act. However, at the trial a certificate of registration of the partnership was produced and, therefore, neither this issue nor issues 1, 2 and 5 of the above- quoted issues were pressed. With regard to Issue No. 5 it was stated by the plaintiffs that though they had contract for Austin deisel chassis yet they would have been quite willing to accept Morris chassis if it had been offered to them and, therefore, this issue was also not pressed. That leaves Issues 3, 4 and 6 which were pressed before me and which I shall now proceed to examine.

10. Issue No. 3: In order to determine the question whether this contract became impossible of performance and was thus rendered void, it would be necessary to examine the relevant provisions of law relating to the sale and distribution of the goods, viz., the truck chassis which was the subject matter of the contracts in suit. Clause 4 of the essential Commodities (Control of Distribution) Order, 1953, which was made by the Central Government in exercise of powers conferred by section 3 of the Essential‑ Supplies (Temporary Powers) Act, 1946 empowered the Controller General to fix maximum prices of the scheduled articles. Item 13 of the Schedule covers the truck chassis which is a machanically propelled vehicle. Clause 5 of the said order provides that every importer of a scheduled articles shall, within one week from the date of his receiving intimation of despatch of the consignment from any place outside Pakistan, furnish to the Controller General the information mentioned in sub clauses (i), (ii) and (iii) of clause 5 (1). By clause 5 (2) it is provided that every importer of scheduled articles, shall, within two weeks of the arrival of the consignment in Pakistan, furnish to the Controller General the information regarding the descrip tion and quantity of the articles included in the consignment and the landed cost of each of such items. Then follows clause 6 which provides that no importer shall sell or otherwise dispose of any scheduled articles imported by him after the commencement of this order except in accordance with such written instructions as may be given to him in that behalf under sub‑clause (ii) of clause 3 Provided that if no such instructions are given within 21 days from the latest date on which any of the items of information required to be furnished under sub‑clause (1) or sub‑clause (2) of clause 5 is received in the office of the Controller General, the importer may, subject to the other provisions of this order, dispose of the articles. Sub‑clause (2) of clause 3 which has been men tioned in this clause provides that the Controller General may by order in writing requires any importer or producer to sell to such approved dealer or dealers such quantity of scheduled articles as may be specified in the order. Clause 9 of this order provides that a Court trying any contravention of this Order may, without prejudice to any other sentence which it may pass, direct that the scheduled articles in respect of which it is satisfied that this order had been contravened, shall be forfeited to the Government. It would appear from the above provisions that a sale of a scheduled article, such as the article in question, could only be done in accordance with the directions of the Controller General and only to a party named .by him. However, clause 6 of the said order had provided that if instructions were not given within 21 days as explained in that clause, the importer would be free to dispose of the article subject to the other provisions of the Order. In the present case it has been established by the evidence of Akbar Hashimbhoy, defendant No. 2, and E. D. Regina, D. W. 3, the manager of Kandawala Automobiles that the licence of the defendants for the import of these two chassis was not a commercial licence but a special licence. The defendants are not dealers in automobiles. Their business is of fishmeal which they export and the licence for the import of two truck chassis was granted to them in lieu of their export of fishmeal under the Export Incentive Scheme introduced by the Government itself. This scheme was of the same kind as the present Bonus Voucher Scheme. Before the two contracts in suit these defendants had imported 8 other similar truck chassis and they had been able to sell them to the customers of their own choice without the restriction of any permit. Information in these cases had also been sent to the Controller General of the Import because the dealers through whom the import is made would not release the goods unless such an information had been given. The Controller General however had not in the case of these 8 chassis given any direction to the defendants for the sale of them to any permit‑holder. Indeed, according to the evidence of Akbar Hashimbhoy these 8 chassis were also sold through the same broker through whom the present two contracts were nego tiated, and that the buyers in that case were also same parties. The plaintiffs, however, have denied that they themselves had bought any chassis before from the defendants. It may well be that by the same parties it was intended to mean the persons of the same group as the plaintiffs. It is true no amendment had been made either in the Essential Supplies Act of 1946 or in the Essential Commodities Order of 1953 but having regard to the fact that the Export Incentive Scheme had been introduced by the Government itself the Controller General could enable the person to whom such special licence was granted in lieu of export to sell it to a person of his own choice by not issuing any instructions within 21 days as provided in clause 6 of the said order. How ever, in the present case, by the time the chassis were imported Martial Law had been enforced and conditions had changed. That perhaps may be the explanation why the Controller General enforced the law in the case of these two chassis. Be that as it may, from the facts which have been set out in the earlier part of this judgment it is fully established that the defendants had no choice left in the matter and were compelled to give delivery of these two chassis to the persons to whom they were directed under the orders of the Controller General. The import of the two chassis is established by the evidence of Akbar Hashimbhoy as well as the manager of the Kandawala Automobiles. From their evidence, supported as it is by documentar3 evidence to which reference has been made, it is also established that the Controller General prohibited the defendants from selling these two chassis to anyone other than those to whom permit; may be granted by the Civil Supplies Director, Karachi and the Chief Secretary, West Pakistan. Such permits were issued within 21 days and the defendants were informed of it and so went the dealers. The defendants did not hurriedly agree to the delivery of these chassis to the persons in whose favour the permits had been issued, with the result that the Government impounded these two chassis, and it is plain that if the defendant had then not complied with the orders of the Controller General they would have been prosecuted and the vehicles would have been forfeited to the Government.

11. Section 56 of the Contract Act provides that a contract to do an act which, after the contract is made, becomes impossible or by reason of some event which the promiser could no i e, prevent, unlawful, becomes void when the act becomes impossible or unlawful. In the present case, I am satisfied that when the defendants entered into the contract to supply these two chassis they had bona fide belief that considering that they had got the special licences under the Export Incentive Scheme they would be able to deliver the chassis to the two plaintiffs without restrain by the Controller General as indeed they had been able to do in the past. I am also satisfied that both the plaintiffs do this case also knew that having regard to the nature of the licence the defendants would be able to deliver the chassis to them and that the restrictions under the Distribution Order would not be applied in this case. Conditions, however, changed due to the imposition of Martial Law and the provisions of the Distribu tion Order were enforced when these chassis were imported with the result that the defendants were compelled to deliver the contracted articles to persons to whom permits had been issued. One of these has been examined by the defendants. He is D. W. 1 Ashghar Ali, the manager of the Karachi Flour Millers Union. He stated that the Union had been granted a permit dated 26th March 1959 for a Morris 5‑ton diesel chassis at the maximum price of Rs. 21,196 and a direction to this effect was given to Messrs Hashimbhoy & Co. by the Director of Civil Supplies to sell the said chassis to the Union. He produced the said order of the Director of Civil Supplies and upon the basis of which he took a delivery order from Hashimbhoy & Co. and received the delivery of the chassis from Messrs Kandawala Automobiles and the price that he paid was Rs. 21,

196. This payment was made by cheque. The defendants were thus compelled to deliver this chassis at a price which was about Rs. 2,500 less than the price under the two contracts in suit. A contravention by them of the order of Controller General or that of the Director of Civil Supplies would have involved a criminal prosecution and for feiture of the vehicle. I have, therefore, no hesitation in holding that the portion of section 56 of the Contract Act, which has been reproduced above, was clearly attracted in the present case, with the result that the delivery of the two chassis to the two plaintiffs became impossible by reason of event which the defendants could not prevent thereby rendering the contract void. The second part of section 56 which provides for compensation for loss through non‑performances does not apply to the present case because of my finding that the defendants neither knew nor could have known with reasonable diligence that they would not be able to deliver the chassis to the plaintiffs according to the contract Moreover, as I have held, the plaintiffs themselves were aware of the control on these goods but had good reason to believe that having regard to the nature of the import licence they would be able to get delivery from the defendants. My finding, therefore, on Issue No. 3 is in the affirmative.

12. Issue No. 4: This issue relates to the question whether the plaintiffs are entitled to recover a further sum of Rs. 24,300 each from the defendants. Now, in view of my finding on issue No. 3 that the contract had become impossible of performance and was thus rendered void within the meaning of section 56, it must follow that the plaintiffs could not be entitled to recover any damages unless the case came within the second part of section 56 which I have held is not attracted in the present case. The defendants would only be liable to restore any advantage which they bad received under these two contracts. In the present case, they had admittedly received Rs. 23,700 from each of the two plaintiffs as the full advance price of the chassis. In respect of this amount a decree has already been passed in favour of the plaintiffs on admission. The question which then falls for consideration is whether I can go into the question raised at the stage of evidence by both the plaintiffs that they had in fact paid Rs. 24,300 each to the defendants at the time of the contract over and above the price of Rs. 23,

700. I have referred to the pleadings in the two plaints in which this amount of Rs. 24,300 had specifically been claimed as liquidated damages for the breach of contract upon the ground that the defendants had failed to deliver the two chassis. It was for the first time when the defendant No. 2 Akbar Hashimbhoy was under the cross examination by Mr. Muhammadali Sayeed, the learned counsel for the plaintiffs, that question came to be asked with reference to clause 5 of the contract, Exh. 11, whereby the sellers had contracted to pay Rs. 24,300 to the plaintiffs as damages if they did not deliver the chassis. When asked by the Court as to upon what issues these questions were being put the learned counsel stated that his case was going to be that the amount of Rs. 24,300 was returnable to his client in this and in the connected suits by way of liquidated damages and that these two sums had actually been paid by the two plaintiffs to the defendants over and above the price of Rs. 23,

700. When this statement was made Mr. Zari for the defendants objected to the cross‑examina tion upon this point without there being any plea about it. Mr. Muhammadali Sayeed then sought time for the amendment of the plaint and the case was adjourned for this purpose. This happened on 14th May 1965. The case again came up for hearing on 7th December 1965 for further cross‑examination of the witness Akbar Hashimbhoy, but it was found that no appli cation for the amendment of the plaint in either of the suits had been made. No further time was sought for applying for amend ment and it became clear that the learned counsel had made up his mind to press the claim for damages as alleged in the plaint. In fact, he male a statement to this effect: "I want this Court to treat this suit as for refund of the price of Rs. 23,700 and for payment of Rs. 24,300 as damages." However, when the two plaintiffs were examined in the witness box both of them asserted that they had paid Rs. 48,000 each to the defendants, of which Rs. 24,300 was over and above the price of Rs. 23,700 as mentioned in the contract. They asserted that it was for this reason that clauses 5 and 6 were inserted in the contract. To these answers Mr. Zari had naturally objected. In view of these statements I had myself questioned the defendant No. 2 Akbar Hashimbhoy who was present in Court after the plaintiffs' evidence had been closed with reference to these two clauses in the contract and as to why the defendants had bound themselves to pay such a large amount though they had merely charged the control price from the plaintiffs, viz. Rs. 23,

700. The question, however, which arises is whether I can in these suits consider the question whether each of the two plaintiffs had paid to the defendants a sum of Rs. 24,300 at the time of the contract and that it was this amount that the defendants had agreed to refund in case of non‑delivery of the chassis. I am afraid I cannot do so having regard to the laws of pleadings and the well‑settled rule that a party cannot prove a case different from what has been pleaded by it. In this case the proof of actual payment of Rs. 24,300 is not only different from the pleadings in the plaint but is in fact contrary to it. In the plaint this amount has been claimed as liquidated damages whereas in evidence it is alleged that this amount had actually been paid to the defendants and it is the refund of it which is being claimed. Frankly speaking, the temptation to me to examine on merits the assertion of actual payment of Rs. 24,300 to the defendants was great, but I am afraid; to do so would be a repudiation of the settled law on the point. The Privy Council has repeatedly deprecated such a practice of allowing proof of what has not been pleaded. I may put it on record that Mr. Zari had argued that if this Court permitted the Plaintiffs to assert that they had paid Rs: 24,300 each over and above the control price then tie contracts in suit would be hit .by section 23 of the Contract Act and section 65 thereof would not be applicable and the plaintiffs could not claim the refund of anything. I do not want to express my opinion on this question because, as I have said, this is not the case which has been pleaded by the plaintiffs.

13. Issue No. 6: In view of my finding on Issue Nos. 3 and 4 and considering that I have held that I cannot inquire into the question that Rs, 24,300 were actually paid by the plaintiffs the further question whether the plaintiffs are entitled to recover this amount as liquidated damages or penalty does not arise. Having held that the contract was rendered void under the first part of section 56 of the Contract Act and that the defendants had been disabled from performing the contract due to the action taken by the Controller General of Prices under the Distribu tion Order, it must follow that the defendants are not liable to pay damages. They were only liable to refund the admitted amount of Rs. 23,700 to each of the plaintiffs for which sum a decree on admission had already been passed, the money had been deposited and withdrawn by each of the two plaintiffs. There is no further relief to which the plaintiffs are entitled in these suits.

14. For the reasons given, apart from the decree already passed on the two suits on admission, the rest of the claim in both the suits is disallowed. The suits are accordingly dismissed. However, I would leave the parties to bear their own costs. K.B.A. Suit dismissed.