P L D 1957 (W (PLP)

KAIKAUS, J.‑

The facts which led to this Execution Second Appeal have to be stated in some detail. Muhammad Sharif, who is appellant before me, secured a lease of tonga- stand of the Municipal Committee of Sheikhupura for the period beginning 1st April 1948 and ending 31st March 1949 in lieu of a sum of Rs. 5,

500. Muhammad Hussain, who is one of the two respondents before me, filed a suit in the capacity of the President of the Tonga Union, against Muhammad Sharif and the Municipal Committee of Sheikhupura for a declaration that the said lease was illegal and that Muhammad Sharif defendant was not entitled to make any demand on the tongawalas on account of the lease. At the same time Muhammad Hussain applied for a temporary injunction prohibiting Muhammad Sharif from charging any tax or fee from the tongawalas, The trial Court granted this temporary injunction on the condition that Muhammad Hussain should furnish a security in the sum of Rs. 5,500 to be realised from the plaintiff as damages in case the suit was dismissed. There was an appeal against this order as well as cross objections by the plaintiff and as a result the District judge passed an order that security should be given not in the fixed sum of Rs. 5,500 but for compensation for such damage as may be actually caused. Nawab Din, who is the other respondent in this appeal, executed a surety bond undertaking the liability to pay the sum of Rs. 5,500 in case the plaintiff's suit was dismissed. The suit filed by Muhammad Hussain was compromised. Under the compromise, it was agreed that the defendant was entitled to recover As. 0‑1‑6 per trip from those tongawalas who went outside municipal limits and As. 0‑2‑6 per day from those who plied tongas within municipal limits. The Court passed a decree in accordance with the terms of the compromise. On account of the temporary injunction which had been issued by the Court, Muhammad Sharif had failed to realise his dues from the 17th of May 1948, to the 10th of February 1949. He put in an application under section 145 of the Code of Civil Procedure on the 31st of May 1949 against both Muhammad Hussain and Nawab Din for recovering a sum of Rs. 5,500 as damages on account of his having been prevented from realising the fees or rent from the tongawalas. On the 4th of January 1950, the Court returned this application on the ground that a regular suit should be filed. In accordance with this order Muhammad Sharif filed a regular suit on the 20th of February 1950, against Muhammad Hussain and Nawab Din to recover a sum of Rs. 5,

500. This suit was dismissed against Muhammad Hussain and decreed against Nawab Din on the 27th of August 1951, in the sum of Rs. 2,

640. Against this decision an appeal (R. F‑ A. No. 82 of 1951) was filed in the High Court. The case came up before me and Akhlaque Husain J. and we held that the proper remedy was an application and not a suit. Accepting the appeal, we remanded the case to the trial Court with the direction that it should be allowed and converted into an application. After it was converted into an application, the trial Court passed a decree for Rs. 2,010 against Nawab Din alone. Against this decree an appeal was fled by Nawab Din to the District Judge. The learned District Judge held (1) that Nawab Din was not liable because the suit had not been dismissed and under the compromise his liability arose only in the case the suit was dismissed and (2) that it has not been proved that the plaintiff had suffered any damage. He accepted the appeal and dismissed the application. This is an appeal against the order of the District Judge by Muhammad Sharif, both Nawab Din and Muhammad Hussain having been imp leaded as respondents. A number points arise in this appeal. The first point urged is that the learned District Judge had no jurisdiction to hear the appeal as the application was for grant of more than Rs. 5,000 as damages and for the purpose of appeal it is the value of this application and not the value of the original suit which should be considered. Under section 39 of the Punjab Courts Act which governs the presentation of appeals, an appeal lies to the District Judge in a case where the value of the "original suit" is not more than Rs. 5,

000. The value of the suit for injunction filed by Muhammad Hussain was only for Rs.

5. It is argued on behalf of the respondents that having regard to the words "value of the original suit" in section 39, the appeal lay in this case to the District Judge. I am pre pared to accept this argument subject to a reservation. The reservation is that if an order which arises out of a suit, awards a sum of not less than Rs. 5,000 then although the value of the original suit as initially fixed was less than Rs. 5,000 an appeal shall lie not to the District judge but to the High Court. In such a case we will have to regard the value of the original suit as having been enhanced in respect of that particular matter and the value of the original suit" for the purpose of appeal shall be the amount awarded and not the initial value of the suit. If, for instance, an order for payment of Rs. 5,000 or more had been passed in this case, an appeal could have been preferred against that order only to the High Court, I might point out here that the allied question as to the jurisdiction of a Court to entertain an application for payment of a sum of money that exceeds its jurisdiction and also the question of the authority of al. Court to pass an enforceable order of an amount exceeding its jurisdiction are matters of difficulty though they have not been raised in the case before me. Their Lordships of the Privy Council held in Raj Raghubar Singh v. Jai Indra Bahadur Singh (I LR42All.158) that a bond by surety which is not executed in favour of a particular person cannot be sued upon for a Court is not a juristic person and, therefore, the bond has‑ to be enforced by the Court in compliance with whose order it was executed. Now if the amount of the bond exceeds the pecuniary limit of the jurisdiction of the Court, then a question does arise as to whether the Court is capable of passing an order which amounts to an order for payment of a sum exceeding the jurisdiction of Court. That a Court cannot pass a decree in excess of the limit of its pecuniary jurisdiction is a proposition established by Full Bench judg ments of the Lahore High Court, and it should follow that it cannot pass an order for payment of money exceeding its pecuniary limit. On the other hand, there is this consideration that whenever a Court is properly seized of a case it has jurisdiction to make all incidental orders necessary for maintenance of status quo ante and this power includes the power to impose conditions like the execution of a surety bond and no other Court would have jurisdiction to pass such orders. However, as I have already said, this question has not been raised before me. I hold that the District judge had jurisdiction to hear the appeal. Coming to the merits of the case, the first question to be determined is whether in this case there was dismissal of the suit within the meaning of the surety bond. It will be observed that the suit was only for a declaration as to the illegality of the tax or fee demanded by the lessee from tonga‑drivers. An injunction had been claimed only on the basis of this declaration. Now, so far as the question of the illegality is concerned, the compromise accepted that it was legal and it oily fixed the amount realisable. If the Court was to act in conformity with Order XXIII, rule 3, Civil P. C., it should have, after recording the whole of the compromise, dismissed the suit, for a compromise decree in a suit should incorporation only as much of the compromise as relates to the subject matter of the suit. In any cause, while deciding whether the suit had been "dismissed" or not we are to look only to the grant or refusal of reliefs that had been claimed in the suit. It should be remembered that the surety bond is in this case to be interpreted in the light of the order of the Court by .which injunction was granted. Truly speaking, the interpretation with which we are concerned is that of the order of the Court. The surety bond only complied with the order of Court. What was the intention of the trial Court when it imposed a condition as to the realisation of Rs. 5,500 in case. the suit failed ? The. Co‑Art was at that stage concerned only with the legality or otherwise of the fee and, in my opinion, the only reasonable interpretation of the Court's order is that if ultimately it was found that the claim with respect to the illegality of the fee was not valid, the defendant should be reimbursed for the loss he sustained on account of the injunc tion. By the issue of the injunction, the Court prevented the defendant from realising the fee from tongawalas. The intention of the Court was that if the injunction remained in force, and the plaintiff failed to get a decision in his favour on the question of the legality of the fee, the defendant should be able to recover the money which he was entitled to realise during the pendency of the injunction and he should not have to file a suit for that money. The order of the Court, there fore, should mean that the plaintiff had to pay the loss, which accrued to the defendant on account of the temporary injunction. I hold, therefore, that the condition that the surety was liable only in case the suit was dismissed has been satisfied in the present case. It has next been urged that the surety was liable only in a case where the suit was decided on merits. Learned counsel has cited before me some authorities wherein it has been held that if the dismissal was not on merits, the surety was not liable. It is not necessary to refer to these cases. They were decided on their own facts on the interpretation of the documents that were produced before the Courts. As pointed out in one of those cases, interpretation in one case is no guide for interpretation in another case. I have already stated that we are concerned with the interpretation of the order of Court. It could hardly have been the intention of the Court that if the plaintiff chooses at any stage to get the suit dismissed for default, the surety should not be liable. I reject the argument that ‑dismissal in the surety bond meant dis missal on merits. Learned counsel urges next that the agreement of lease has not bean shown to be valid. He says it was for the appellant to prove that in fact damages had occurred and for the purpose of proving damages it was necessary for him to prove the validity of the agreement of lease. When confronted with the compromise, which accepts legality of the fee, he says surety was no party to it and with any implication of the compromise he is not bound. The com promise, he alleges, may create res judicata or estoppel against Muhammad Hussain, but Nawab Din is not in any way bound by it and the question of damages has to be decided on the material before the Court in the present case. Here there is a question of some difficulty. If I were to accept the argument that the surety is not bound by the estoppel which operates against Muhammad Hussain, the result would be, that even in a case where there has been a trial of the suit on merits and a finding as to validity of an agreement recorded, the surety could say that the matter should be tried de novo. I am of the opinion that in such a case the surety necessarily undertakes that he would be bound by any decision that is given against his principal. The words in the compromise deed are that he shall pay damages if the suit was dismissed. There is no further condition for the existence of damage. That necessarily implies that from the fact the suit is dismissed, the arising of damages is assumed and this involves that the contract was legal, and damages, therefore, in fact accrued. I have already held that the intention of the Court in passing the order was that even in a case where there was dismissal in default the surety should be held liable. The surety bond was given to fulfil the con dition imposed by the order of Court and is to be interpreted in accordance with that order. The surety is deemed to contract that even if the suit was dismissed for default he would be liable to pay damages. It is pertinent to mention here that according to the bond the surety agreed ‑to pay Rs. 5,500 if the suit was dismissed. That clearly implies that the question of validity of lease or tax was not to be gone into. It is the order of the appellate Court which varied the effect of the bond, confining it to the damage actually caused. I hold that the surety cannot be allowed now to reopen the question is to the validity of the original agreement and contest the present application on that ground. Another argument urged on behalf of Nawab Din respondent is that the surety stands discharged, because there has been variance of the agreement as between the promised and the principal. Some cases have been cited in argument. There is no need to refer to any authority on this point because section 133 of the Contract Act clearly lays down that a vari ance in an original agreement discharges the surety. However, in the present case, it is clear that there has been no variance of the original agreement. The agreement for which Nawab Din stood surety was that Muhammad Hussain would pay damages which accrued on account of the injunction in case the suit was dismissed. So far as that agreement is concerned, there has been no change. The variance of amount of fee payable has no bearing on the question before us. Section 133 has no application even if I were to hold that a case of compliance with an order of a Court is within that section. There remains the question of the quantum of damages. The plaintiff had admitted that he was entering the amount he realised during the year 1948‑49, in a register but he did not produce that register. The trial Court relied upon the statements of two witnesses for the respondent, Muhammad Sharif and Ghulam Rasul. Muhammad Sharif stated while under cross‑examination that the appellant had been earning Rs. 70 per day during the year 1948‑

49. Ghulam Rasul stated that the appellant had been receiving about Rs. 30 or 35 per day. The trial Court accepted only the lowest statement that is Rs. 30 per day. It then further divided that sum by four because the witness said the appellant had been receiving As. 0‑4‑0 per day from tongawalas and the appellant had admitted that he was receiving only As. 0‑1‑0 per day. So the trial Court reduced Rs: 30 to Rs. 7‑8‑0 and calculating at this rate for 368 days awarded Rs. 2,

010. The learned' District judge on appeal did not agree with the reasoning of the trial Court on this point. He was of the opinion that as the appellant failed to produce the best evidence, he had failed to prove that he suffered any damage at all. This finding of the learned District judge suffers from a number of defects. The learned judge says if the statements of Muhammad Sharif and Ghulam Rasul are accepted, the amount to be awarded would be much in excess of Rs. 2,010 and he says he does not agree with the "rigmarole" argument by which the amount was reduced from Rs. 30 to Rs. 7‑8‑

0. The learned Judge neither states what was the argument nor gives any reason for not agreeing with it. Prima facie there was nothing wrong in the trial Court reducing the amount from Rs. 30 to Rs, 7‑8‑0 because according to the witnesses mentioned above the appellant had in fact been charging As. 0‑4‑0 per day and the amount the witnesses stated had been calculated on that basis whereas the appellant had admit ted that he was entitled to charge An. 0‑1‑0 per day. The trial Court, therefore, divided the amount of Rs. 30 by four. The learned District judge also did not say that the statements of witnesses Muhammad Sharif and Ghulam Rasul were not to be relied upon. They were the witnesses of the respondents, not of the appellant. In fact there is no proper discussion of evidence on this point by the learned District Judge. He simply refers to the statements of Muhammad Sharif and Ghulam Rasul and says if these statements are accepted the amount awarded should be far in excess of Rs. 2,

010. The learned District judge also does not consider that the amount which the appellant paid as lease money was also some evidence of the amount which the appellant could have realised. The market value of the receipts is some evidence of what the actual receipts may be. There was other evidence on the file too. The number of tongawalas registered by the Committee was on record. The daily fee was known. It should be borne in mind that is not possible in cases of this kind to hold that no damage is proved at all. One can only reduce the amount of damages. Could it, for instance, be urged that even a loss of Rs. 10 was not caused ? The period is 268 days. The number of tongawalas is

160. When the fee for a year is auctioned it is purchased at Rs. 5,

500. Some damage must necessarily have been caused. If we are to assess damages only if the exact amount is proved, no damages can ever be decreed. Damages have so many times to be awarded by the rule of thumb but the fact that the exact amount is not determinable can be no reason for dismissal of a suit. Account books were in this case not produced but even those account books did not relate to the period in dispute, for during that period the appellant was debarred from realising any fee. It appears to me that the correct approach on this point was that of the trial Court which did its best on the material before it to determine the amount. The learned District judge having already held that the appellant was not entitled to damages at all did not apply his mind properly to the question of quantum of damages. Had he held that the appellant was entitled to damages it is difficult to believe that he would throw out the suit on the sole ground that the precise amount could not be determined. Agreeing with the trial Court on this point, I hold that the appellant is entitled to Rs. 2,010 against Nawab Din respondent. I may point out that calculating on the basis of Rs'. 5,500 for the whole year the amount would be much more than Rs. 2,

010. This appeal is accepted. The order of the District judge is set aside and that of the trial Court restored. Nawab Din respondent shall pay the: costs of the appellant in all Courts. A. H. Appeal accepted.