P L D 1967 Karachi 840 (PLP)

(a) Loss of earnings from subscription and advertisements. 1,000.00 (b) Loss of goodwill including loss of business . 12,000.00 Total 13,000.00"

13. The Defendant's pleas, according to his written state ment are: that the printed copies could not be handed over without the authentication of the printer's declaration ; the contents of the constitutional petition which was filed by plaintiff No. 1 were not known to the defendant, and the orders of the Court which were shown to him did not give the necessary protection to him. He has admitted that he asked for legal protection, but has denied that there was any misrepresentation in it. The losses alleged to have been suffered by the plaintiff's have also been denied by him. They are described as remote and beyond contemplation of the parties, "fanciful, imaginary and highly excessive" as well as legitimately arising from "the opera tion of the aforementioned Press & Publications Ordinance".

14. The nature of the pleadings will become clearer by a reference to the consent issues which were framed by counsel for the parties; they are as follows:‑ (1) Whether the suit is premature? (2) Whether the defendant had made any misrepresentations to the plaintiffs? 1f yes, to what effect? (3) Whether due to the defendant's acts, if any, the plaintiff's suffered damage to 'his health and well‑being, his editorial position, loss of remuneration and employment and loss of right to publish his newspaper? (4) Whether the claim of damages (para. 16 of plaint) is misconceived and is, in any way, remote and was never in contemplation of the parties at all relevant times? (5) Whether plaintiff No. 2 suffered loss of goodwill of paper and loss of earning from subscription and advertisements (para. 17 of the plaint)? (6) If answer to the preceding issue is in affirmative, then whether any such los3 is remote, was never in contemplation of the parties at all relevant times and is not recoverable? (7) Whether damages claimed are, in any case imaginary and highly excessive? (8) Whether the conduct of the defendant in refusing to part with copies of newspaper was justified under the Press & Publication Ordinance? (9) Whether defendant is entitled for special costs under section 35‑A of the C. P. C. ?'

15. At the time of addressing arguments, counsel for the parties realised that the above issues contained immaterial details and, therefore, agreed that there were only three material issues on which the cast could hr: and should be decided. They are as follows: (1) What are the terms of the contract? (2) Whether the defendant committed the breach of the contract? (3) Whether the plaintiffs are entitled to receive damages? If they are then in what amount?

16. Issue No. 1,‑It will be noted that the first issue does not arise from the pleadings of the parties because the pleadings contain no dispute as to the terms of the contract. The contract simply was that the defendant would print the paper for a consideration of Rs.

240. The parties were aware that the defendant was legally not in a position to do the job without obtaining the authentication of a pointer's declaration. They also knew that it was the duty of the defendant to obtain that authentication. But the defendant has, during the course of his 'evidence, set up the case that the plaintiffs had undertaken to assist him in obtaining the required authentication. This allega tion is outside the pleadings, but Mr. Fakharuddin has apparently not questioned it because his clients' witness, Ralph Joseph, P. W. 1, was cross‑examined on it and perhaps also because no harm could come to his clients by reason of it. Ralph Joseph bad accompanied the defendant when he went and submitted to the District Magistrate his declaration for authentication. Additionally, the plaintiffs sent a legal notice, Exh. 6/19, to the District Magistrate as well as filed a constitutional petition against him. There is no suggestion that the defendant expected more help or asked for any further assistance which was not rendered to him. On the contrary, the plaintiffs seem to have regarded to defendant to be on their side and attacked the District Magistrate as the adversary until the interlocutory orders were obtained and the defendant declined to hand over the copies in spite of them. In these circumstances, my conclusion is that no particular assistance was required of the plaintiffs as a part of the contract, but the plaintiffs have done‑more than render assistance to the defendant, partly, in their own interest, and partly, to frustrate the District Magistrate's conduct which, according to them, was illegal. Issue No. 1 is decided accordingly.

17. Issue No. 2:

This is the most important issue in the case. Mr. Fakharuddin has argued it, as indicated above, on the lies that the defendant was in league with the local executive officers for preventing the plaintiff from publishing the paper; therefore, he deceitfully undertook to print its copies and maliciously obstructed its publication on false pretences. But, as pointed out above, this is not the case of the plaintiffs according to their plaint. The three issues which have been adopted by consent indicate that this was not their case even at the commencement of arguments. The case of the plaintiffs, according to their plaint, simply is that the defendant committed a breach of the contract, and that the objections to its performance, which they did disclose, were removed by obtaining two orders from this Court, which according to them, ought to have been accepted by the defendant as adequate protection, but he wilfully persisted in committing the breach of the contract. Additionally, the plaintiffs have alleged in paragraph 7 of the plaint that the defendant had actually delivered the printed copies of the paper, but refused to part with their, possession after they were handed back to him for stapling. If due importance is attached to the last allegation, then the inference should be that the contract which was made for printing the copies had been fully performed; therefore, the contract cannot be said to have been broken by the defendant. Perhaps, counsel for the plaintiffs was conscious of this aspect of the case because he has pleaded in paragraph 8 of the plaint; "that the copies of the said paper are in unlawful possession of the defendant as they are the property of the plaintiffs". Thus the breach allegedly consisted in unlawful retention by the defendant of the plaintiffs' property on the excuse that it could not be delivered to the plaintiffs owing to the penal provisions of section 56 of the said Ordinance.

18. Let me now look at the plaintiffs' case as disclosed in the statement of the cause of action. It is stated in paragraph 18 of the plaint. According to this paragraph, the cause of action arose on the 29th of August 1964 (19th of August 1964 appears to be a typing error) when the contract for printing the copies was made; on the 21st of August 1964, when allegedly the payment was made and the copies were received by the defendant; and on the 28th of August 1964, as well as the 1st of September, 1964 when the two orders of this Court were shown to the defendant. Taking into consideration each of these four dates and keeping in. mind the absence of any reference is the plaint to a conspiracy, plot, deception or to malice, I am forced to the conclusion, as mentioned above, that Mr. Fakharuddin's contention that the defendant was in league with the local executive officers cannot be considered to be a part of the plaintiffs' case; yet I have to decide whether the plaintiffs are entitled to damages on account of the alleged breach of the contract of the 20th of August 1964, or of the 21st of August 1964. The two other dates on which the two orders of this Court Here obtained and shown to the defendant cannot be said to constitute independent causes of action (i) because no new agreements are alleged to have been made on those dates, and (ii) because the defendant was not a party to those orders, They may, therefore, be taken into consideration as factors that aggravated the fault of the defendant if breach of contract is found to have taken place.

19. I have explained, in the paragraph preceding the above one, that the contract of the 20th of August 1964 had been fully executed according to the plaint itself. In this view of the matter I have only to see whether the alleged contract of the 21st of August 1964 was made and then broken or not. Mr. Fakhar uddin's stand was that whichever of the two contracts is taken into consideration, the defence for not delivering the copies remains the same, namely, the penalty prescribed by section 56 of the said .Ordinance; therefore, differentiation between the two contracts was immaterial. Here he was perhaps factually right but legally, certainly in error because he took this stand in disregard of the fact that the defendant does not admit the performance of the first contract and the creation of the second contract. There is no satisfactory proof of the delivery of the printed copies, of the failure of the plaintiffs to get them stapled, and of their delivery back to the defendant. The second contract is thus not proved. The question which arises from this situation is: If there was no second contract, then could there be a breach of it? The answer obviously is: No. The plaintiffs may say that the defendant having denied the performance of the. first contract and given reasons for it, its breach should be considered by examining the sufficiency of the reasons. But the second question which arises is: Can this Court grant damages on the basis of a breach of contract which the plaintiffs have not alleged ? To my mind, the answer, in view of the rules of pleadings, applicable in the adversary system of law which we follow, is again: No. I need not elaborate these two negative answer because Mr. Fakharuddin did not dispute them, but contended that the plaintiffs' claim could not be rightly defeated unless the reasons given by the defendant for not performing his obligations were found to be sufficient. This is a stylish nut an unsatisfactory stand; yet I would not like to leave out of consideration the adequacy or otherwise of the defendant's excuse.

20. The excuse is that he could not deliver the printed copies without making himself liable to the penalties which are prescribed by section 56 of the said Ordinance. Mr. Fakharuddin's answers were as follows: (i) The defendant had already delivered the copies once. (ii) It was his duty to acquire the qualification for doing the contracted job which he did not perform in an honest manner, but in order to deceitfully help the local executive officers was pretending that the authentication was withheld. (iii) The plaintiffs had obtained two orders from this Court, which adequately protected the defendant. (iv) The plaintiffs had suggested that the date, which watt printed on the copies be changed by overprinting the date to which, according to the defendant, the two orders of this Court related, but the defendant wilfully persisted in the commission of the breach. (v) In terms of section 56 of the said Ordinance, the offence was to print without the authentication of the printer's declara tion, but the delivery of the copies was not an ingredient of the offence.

21. The first answer is not satisfactory, as explained earlier. The second answer is outside the pleadings of the plaintiffs. The third answer has been criticised on behalf of the defendant by pointing out that the defendant was not a party to the proceedings in which the orders of the Court were made. They did not relate to the week for which the copies had been printed, nor were they clear and direct orders to the defendant to deliver the copies to the plaintiffs. These criticisms, to my mind, effectively refute the third answer of Mr. Fakharuddin. But Mr. Fakharuddin emphasized his fourth answer because, according to him, the refusal of the defendant to over‑print the proper date exposed the defendant's wilfulness. With due respect to counsel, I would say that the proposal of overprinting was clearly of a dubious nature and not free from legal complications as well as additional risks. Counsel's fifth answer should be tested by examining the langu age of the section, which is as follows; "Whoever shall edit, print or publish any newspaper in contravention of the provisions of this Ordinance, or whoever shall edit, print or publish, or shall cause to be edited, printed or published any newspaper, knowing that the said provisions have not been observed with respect to that newspaper shall be punishable with fine not exceeding two thousand rupees, or imprisonment for a term not exceeding six months or with both."

22. The above language shows that an offence is committed under it:‑‑ (a) by editing, printing a newspaper in contravention of the, provisions of the Ordinance; (b) by editing, printing or publishing a newspaper knowing that the said provisions have not been observed ; and (c) by causing a newspaper to be edited, printed or published knowing that tae said provisions have not been observed. The first part of the section deals with separate liabilities of editors, printers and publishers, bur the second and third parts make them overlapping or mutual because all of these parsons are liable if any of the provisions of the Ordinance has not been observed. Mr. Fakharuddin argued that the defendant had already committed an offence by printing the copies without the authentication of his printers declaration; therefore, his refusal to deliver them was without any excuse. Supposing for the sake of argument that the defendant committed the offence of printing the copies without first obtaining the authentication of his printer's declaration, does it follow from it that he was free to deliver them to the plaintiffs for being published? Obviously not, because such delivery would certainly have fallen within the mischief of the third p art of the section.

23. The conclusion that follows from the above discussion is obvious. But before expressing it, I may mention that, whereas the parties have made allegations against the policy of the local executive officers and their devices to prevent the publication of the paper, the frame of the suit has been chosen by the plaintiffs to exclude that consideration. If the plaintiffs had pleaded that the defendant and the local executive officers had made a common cause to do them down and had also impleaded the relevant Government as a defendant, then the examination of such allegations would have been relevant and admissible in these proceedings. There is some material on this file for judging the verasity of such allegations; but it has been brought on the record without the required pleadings, proper issues and necessary parties. As an inevitable result of this situation issue No. 2 must be decided against the plaintiffs and is hereby decided accordingly.

24. Issue No. 3.‑The third issue consists of two parts. Under its first part I have to examine whether the plaintiffs are entitled to damages and if they are, then under the second part to determine the amount. In respect of the first part, Mr. Safdar Shah contended by way of raising a legal point that the contract made by the parties for printing the copies was illegal in terms of section 23 of the Contract Act, because it was in violation of section 7 read with section 56, of the said Ordinance. These sections made the editing, printing and publishing of "Outlook" or causing any of these acts to be done in violation of any provision of the Ordinance punishable under law; therefore, according to counsel, the agreement to print it or to cause it to be published without‑the authentication of the printer's declaration, was illegal. He referred to Krell v. Henry ((1903) 2 K B 740) and Velu Padayachi v. Sivasooriam (A I R 1950 Mad. 444). These judgments do not fully support the view of counsel, but Mr. Fakharuddin did not analyse them. His reply was that the contract was made subject to the condition that the defendant would obtain a duly authenticated printer's declaration; therefore, it was not illegal.. This point of view is supported by a Division Bench judgment of Orissa given in Babulal Agarwala Vijaya Stores (A I R 1955 Orissa 49). The learned Judges have observed as follows:‑‑ "It is obvious from these terms that the responsibility for the performance of the contract in accordance with law, was under taken by the first party, namely, the plaintiff as to carry out the terms of the contract only in accordance with the require ments of law. The defendant also undertook to obtain permission from the Government for the plaintiff to purchase, supply and deliver the commodity. There is nothing in the terms of the agreement suggesting any intention to contravene or evade the provisions of the Control Order. Section 23, Contract Act, declares the consideration or object of an agree ment as unlawful if it is forbidden by law, or is of such a nature that, if permitted it would defeat the provision of any law. If the object of the agreement in unlawful and the agreement is void under section 24 (sic). Did the parties, in the present case, contemplate doing anything which was for bidden by law? Far from attributing any such intention to the parties, the agreement makes it clear that the parties were conscious of the prohibition enacted by law and expressly provided for acting in accordance with the requirements of law. Nor can it be said that if the contract were to be performed as contemplated it would defeat the provision of any law . . . . . for the agreement expressly stipulates that the defendant should obtain a licence to enable the plaintiff to supply rice." But in the above‑mentioned Madras case, the learned Judges have rightly pointed out that a contract which is legal in the beginning becomes illegal if its performance contravenes the law. From this angle the contract to print as well as the alleged contract to bind and deliver the copies for publishing them became illegal when the condition precedent of authentication was not fulfilled: This suit was filed in the absence of that authentication; therefore it is one for the breach of a contract or of contract which was/were at the time of its institution illegal in terms of section 23 of the Contract Act: The plaintiffs may blame the defendant, though actually they have not framed this suit to accord with that object, for a conspiracy to bring about the illegality and may have a separate cause of action on that score, but the illegality of the absence of authentication which has come about is bound to destroy the cause of action of this suit.

25. The above illegality taken together with the decision of issue No. 2, makes the conclusion irresistible that the plaintiffs are not entitled to recover damages. The result of this conclusion is that the second part of the 3rd issue does not arise. It is, therefore, not necessary to decide it but I may mention that the plaintiffs are prima facie not the worse off for it because they have led no evidence to prove the loss of any of the amounts claimed by them. The explanation, perhaps, is that they have claimed Rs. 25,000 as "general damages" . . . See paragraph 20 (a) of the plaint . . . and given the break‑up only when called upon to supply further and better particulars. They have probably taken this claim to be independent of proof because "General damages", as pointed out by Mayne and McGregor in the 12th edition of their book on Damages at page 12, with reference to proof:‑‑ "are such as the jury may give when the Judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man . . . Special damages are given in respect of any "consequences reasonably and probably arising from the breach complained of. This type of general damage is usually concerned with non‑pecuniary losses, which are difficult to estimate, the principal examples being the injury to reputation in defamation and the pain and suffering in cases of personal injury. Pecuniary loss is also occasionally general damage within this meaning, both in tort and in contract. In tort there is the loss of business profits caused by the defendant's inducement of breach of contract or passing off, while in contract there is the injury to credit and reputation caused by the defendant's failure to pay the plaintiff's cheques or honour his drafts, pecuniary loss which it is difficult to estimate at all accurately." But this is not a case of that type. It is one for the breach of a contract and is governed by section 73 of the Contract Act, which runs as under: "When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach, "When an obligation resembling those created by contracts has been incurred and has not been discharged, any person injured by the failure to discharge is entitled to receive the same compensation from the party in default as if such person had contracted to discharge it and had broken his contract. Explanation.‑In estimating the toss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non‑performance of the contract must be taken into account." In terms of the above provisions the plaintiff call get compensation for such loss or damage as was caused to them by the commission of the alleged breach, and which naturally arose in the usual course of things, or which the parties knew, when they made the contract, to be likely to result from the breach. But they cannot claim remote or indirect damages.

26. This contract was for printing copies of one issue of "Outlook" for a consideration of Rs.

240. The copies were to be sold at a certain price, which was intended to yield profits after covering the costs, expenses, overhead charges of the copies. The advertisements, if any, which were contained in the issue represent ed the additional income of plaintiff No.

2. Plaintiff No. 1 was an employee of plaintiff No. 2 and has not been shown to have any interest in the income of the paper apart from his salary. But both the plaintiffs have claimed damages for the breach of one contract without disclosing as to what their respective monetary interest was in the contract. If they are taken to be employer and employee, then it was a contract which was made between the defendant end plaintiff No. 2 through Ralph Joseph, another employee of plaintiff No. 2 at a time when plaintiff No. 1 was away in Quetta. If this view is correct, then plaintiff No. 1 was not a party to the contract. In this situation the breach of the contract cannot be a proximate or direct cause of loss of health, salary and the right to publish the paper of plaintiff No.

1. Presuming for the sake of argument, in spite of absence of proof, that they were indirect and remote repurcussions, section 73 of the Contract Act excludes them for assessing loss or damage.

27. Plaintiff No. 2 has claimed damages for loss of earnings and loss of goodwill. It has made no claim for the cost, expenses anti overhead charges of the copies which could not be published. As to the loss of earnings and goodwill these is either no proof, or there is proof against the plaintiff because the age of the paper it about two years and the balance‑sheets, Exhs. 9 and 10, show that it never made profit, Emphasis was laid as a proof of damage to goodwill on the reputation of plaintiff No. 1 as an editor and journalist, but granting his reputation, it cannot serve the purpose for which it was pressed because, in the language of American Jurisprudence, volume 24, page 821:- "The rule for measuring damages for injury to or destruction of goodwill is the same as that for measuring damages for injury to or destruction of any other personal property. And following the ordinary rule for computing damages for the breach of a contract, they must be such as result naturally and proximately from the breach, excluding speculative and conjectural damages." The reputation of a newspaper is to be taken into consideration for assessing the value of its goodwill like the reputation of any other business. It is to be used like other relevant factors for estimating the income in order to measure loss. Essentially, there is no difference in the manner of assessing the goodwill of a newspaper from that of assessing the goodwill of any other business. In this case, all imaginary reasons come to a dead stop against the wall of the two balance sheets that prove loss. The tender age of the paper convinces of their correctness.

28. I feel that much attention was not paid to the manner in which damages have been claimed because, apparently, the purpose of the suit is not to recover money but to prove that underhand forces have strangled the paper of the plaintiffs. The frame of the suit and absence of necessary parties, has, however, deprived the plaintiffs of the possibility of that satisfaction.

29. The suit is dismissed with costs. K. B. A. Suit dismissed.