P L D 1954 Lahore 451 (PLP)

RAHMAN, J.‑This is a regular second appeal arising out of a suit for damages for breach of contract brought by Malik Fazal Husain respondent against Mehtab Din, Mehraj Din and Muhammad Din appellants. The claim was grounded on the fact that the appellants had executed a registered lease deed in favour of the respondent on the 31st of January 1951 agreeing to take an area forming part of the compound of the plaintiff respondent's house in Lyallpur for five years at a rent of Rs. 150 per mensem. According to the contract as evidenced by the document Exh. P. 1, possession was to be delivered to the lessees next day. The deed was executed on the 31st of January 1951 but it was registered on the 2nd of February 1951 so that normally the possession should have been delivered on the 3rd of February 1951. On the 8th of February 1951 the defendant‑appellants gave a written notice to the respondent repudiating the contract. The plaintiff‑respondent din not immediately reply but he sent a counter notice on the 3rd of December 1951 demanding rent from the 1st of February 1951 till the date of the notice. It was pointed out in this notice that the appellants were liable for the rent as they had by their voluntary act failed to take possession and that in the meanwhile the respondent had been trying to let out his premises to minimise the damages. The appellants refused to admit their liability in their reply (Exh. P. 3) dated the 11th of December 1951. On the 16th of March 1952 the plaintiff, therefore, filed the suit out of which the present appeal has arisen, for recovery of Rs. 1950 on account of rent from the 1st of February 1951 up to the end of February 1952. The plaint was later amended and damages were asked for breach of contract for the same amount. The cause of action was described as arising on the date of contract and every month when the rent fell due The trial Court decreed the plaintiff's suit but awarded only nominal damages of Rs.

100. The plaintiff appealed to the learned District Judge, Lyallpur, who decreed his suit in toto. The defendants have, therefore, challenged the decision of the learned District judge by this appeal. The first point raised by Mr. A. R. Niazi on behalf of the appellants was that his clients had repudiated their liability on the ground of fraud and misrepresentation on the part of the plaintiff‑respondent and they were, therefore, justified in avoiding the contract. On this point the Courts below have concurred in holding that no fraud or misrepre sentation was proved. I see no reason to come to a different conclusion. Even in the first notice, Exh. D. I, dated the 8th of February 1951, the appellants never said that they had been defrauded or that they had been induced to enter into the contract, by any misrepresentation on the part of the plaintiff. On the contraty, all that they alleged was that some of the terms of the contract were harsh and had been inserted therein according to the wishes of the plaintiff. This is a far cry from saying that circumstances of fraud or misrepresentation existed such as would vitiate the contract. The next contention advanced by learned counsel for the appellants was that as the appellants never took possession of the land under the contract and they gave notice within a few days of its completion that they did not consider the mselves bound by it, the breach should be held to have taken place on the date of that notice, namely, the 8th of February 1951, and the plaintiff should not have been awarded damages up to the date of suit but only general damages for breach of contract. This position cannot be accepted as sound in law. The underlying principle by which Courts are guided in awarding damages is restitutio in integrum. This means than the Courts will endeavour, so far as money can do it, to place the injured person in the same situation as if the contract had been performed. This principle of English Law has been embodied in section 73 of the Contract Act which reads as follows :‑ "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." The rest of the section is not material for our purpose except for the Explanation which is in these terms :‑‑ "In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non‑performance of the con tract must be taken into account." The argument that the plaintiff was bound to sue at once for general damages for breach of contract, without waiting for any part of the lease period to elapse, is unten able. It was the option of the plaintiff either to accept the repudiation of the contract forthwith and sue for general damages or to keep the contract alive for his benefit and to sue at the end of the period stipulated in the contract. B The repudiation of the contract by one party does not of itself discharge the contract. The other party has the option of treating the contract as at an end, or of waiting until the time for performance has arrived, before making any claim for breach of contract. Of course the right of election must be signified, to rescind the contract forthwith, in an unqualified manner and with every reasonable despatch. If an injured party elects to wait, he remains liable to perform his part of the contract, and enables the party in default not only to perform the contract, notwithstanding his previous repudiation of it, but to take advantage of any supervening circumstance which would justify him in declining to perform it. Reference in this connection may be made to paragraph 313 of Halsbury's Laws of England, Vol. 7, Second Edition, at page

228. The same principle was laid down by a Single Bench of the Madras High Court in Narasimha Mudali v. Potti Narayanasami Chetti (92 I C 333.). The plaintiff was, therefore, within his right in not treating the contract as rescinded immediately on repudiation by the other party. Merely because the plaintiff had kept silent for about ten or eleven months before the reply to the notice of repudiation, consequently, does not affect his claim. Under one of the terms of the contract, the plaintiff had the right to the lessees, if they defaulted in payment of rent in any month and so, the right accrued to him in every month, of rescinding the contract, in the absence of payment of the stipulated rent. The question that arises for determination then is whe ther the plaintiff was entitled to claim damages at the same rate as the rent fixed by the lease deed. In this connection Mr. A. R. Niazi has cited before me Amanchi Venkatarama Sastrulu v. Nama Venkanna (53 I C 191 (D B)). In this authority it was held that in an action for damages for the lessor's failure to give possession of the lands leased to the lessee, the plaintiff was entitled to the primary profits he would have derived, had he cultivated the land in a husband‑like manner, i.e., the net and not the gross produce, making deductions for the expenses of cultivation and the failure of season, if any. The amount fixed in the contract cannot form the criterion for assessing damages, and the opportunities, which the plaintiff had of renting other lands, should be taken into account. Phillips, J. moreover observed in that case that in considering what should be set off against the gross profits, it must be assumed that the cultivation was carried on entirely by hired labour. The present is a converse case to that cited, but the principle applicable, I think, should be the same. I agree with the learned counsel for the appellant, therefore, that while assessing damages, the net profits had to be dater-mined and" rent stipulated need not be awarded in full. Looking at the contract (Exh. P. 1.) I find that there are two clauses which place a liability on the lessor. Clause (8) declares that the plaintiff would be liable to pay teh zamini, house tax, property tax and any other tax that may be leviable on the land. Clause (10) further stipulates that the plaintiff would, at his own expense, set up a gate in the wall abutting on the public road. If the defendants had carried out the contract and set up a building on the site in question such as was contemplated under the contract and it had been assessed to some tax or taxes, then those taxes would have been payable clearly by the plaintiff. Moreover the plaintiff would have had to pay the expenses of erecting a gate. Unfortunately there is no material on the file from which it could be ascertained how much these two items would come to. For their determination there will have to be a remand. Another question that calls for decision is about the mitigation of damages. The law is that it is the duty of the plaintiff to take all reasonable steps to mitigate the loss he has sustained consequent upon the wrongful act in respect of which he sues. He cannot claim as damages any sum which is due to his own neglect, but he is under no obliga tion to injure himself, his character, his business or his property, to reduce the damages payable by the wrong‑doer, The question what is reasonable for a plaintiff to do in mitigation of his damages is riot a question of law, but one of fact in the circumstances of each particular case the burden of proof being on the defendant. In the present case the' learned District judge has held that the oral evidence adduced on behalf of the plaintiff was satisfactory to the effect that he was making efforts through his friends to let out the site in question to others. He issued an advertisement in a local daily rather late in the day‑to be precise, on the 22nd of November 1951. Considering this fact I might have been inclined to take a different view of the evidence from that adopted by the learned District Judge. The question, however, is one of fact and, therefore, cannot be agitated in second appeal unless it can be shown that the finding is vitiated by any error of law or by a misreading or misrepresentation of the evidence on the record. None of these conditions is satisfied and, therefore, I am constrained to uphold the finding of the learned District judge that the plaintiff did his best to mitigate the damages. The result is that in order to determine the sums deductible out of the amounts claimed by the plaintiff as damages, the case has to be remanded to the trial Court. The case is, therefore, remitted to the trial Court with the direction that the parties be now allowed to lead evidence to show what expenditure would have been incurred by the plaintiff to erect a gate as promised and what would have been the amount of taxes he would have been liable to pay, under the contract. The report will be submitted by the trial Court through the lower appellate Court in due course to this Court. M. A Case remanded