P L D 1980 Supreme Court 122 (PLP)

KARAM ELAHEE CHAUHAN, J.-Messrs Mansukhdas Bodaram (hereinafter called the vendors) .entered into a forward. contract for the supply of 1125 bags (i.e. 2250 maunds) (each bag being of two maunds) of rape seed (1959-60) crop at the rate of Rs. 68 per bag on 21-7-1958 to Messrs Hussain Brothers Ltd., Karachi (hereinafter called the purchasers). Another forward contract was entered into between the same parties on 23-7-1958, for the same quantity but at a slightly different rate namely Rs. 68-8-0 per bag. It appears that due to the promulgation of Martial Law Regulation 42 of 1958 whereunder by notification dated 10,/14-11-1958, the price of rapeseed was fixed at reduced rate of Rs. 27-8-0 per maund the implementation of the contracts which the plaintiffs had kept alive upto 28-5-1959 did not proceed any further, but considering that the said Regulation had no effect on the contracts in hand, and the consequent refusal of the purchasers to lift the supply on. that count constituted a breach on their part, the vendors filed a suit to claim damages in the sum of Rs. 32,062.50 on the original side of the High Court but without any success as a learned Single .fudge of that Court by means of his judgment dated 1-12-1965, dismissed the same holding that the contracts between the parties had frustrated due to promulgation of Martial Law Regulation 42 of 1958 whereunder different price for the .supply of such goods had been fixed which made it impossible for the parties to perform the original contracts at the contractual rates.

2. The vendors filed a Letters Patent Appeal being L. P. A. 92 of 1966 which also met the same fate and was dismissed by a learned Division Bench of the High Court an 15-3-1966. The vendors have come up in appeal against the same by special leave which was granted on 8-3-1967, on the lines of Civil Appeals Nos. K-23/69 and K-24/69 titled Messrs Dada Sons v. Messrs Bengal Oil Mills Ltd., decided on 30-1-1980. The present appeal has been heard along with the aforesaid appeals but is being disposed of by a separate judgment. partners would be necessary for his becoming a partner. And, it is not irrelevant to point out here that the unilateral right conferred by this clause is in sharp contrast with the provision in the first clause of the section that a minor can be admitted to the benefits of partnership only with the consent of all the partners. Therefore, in our humble opinion, the construction placed on section 30 by Faruqui, J., was correct and in his words "where] a partnership is constituted by partners who are adults the inclusion of~, a minor as a partner does not invalidate the partnership and the correct construction of such a document would be to treat the minor as having been admitted to the benefits of partnership." Accordingly, as we agree with the view of Faruqui, J., the petitions are dismissed. S. Q.? Petition dismissed. P L D 1980 Supreme Court 122 Present: Anwarul Haq, C. J., G. Safdar Shah, Karam Elahee Chauhan, Muhammad Afzal Zullah and Nasim Hasan Shah, JJ MESSRS MANSUKHDAS BODARAM-.-Appellant versus HUSSAIN BROTHERS LTD.-Respondent Civil Appeal No. K-13 of 1969, decided on 28th April 1980. (On appeal from the judgmentl and order of the High Court of West Pakistan, Karachi, dated 15-3-1966, in L. P. A. No- 92/66). (a) Martial Law Regulations (1958) [C. M. L. A.'s]- -- No. 42, paras. 2 & 4-Control of prices of certain goods-"Rapeseed" source of vegetable ghee and edible oil and covered under head "selected foodgrains"-Held, Central Government empowered to fix price of "rape seed". [p. 125)4 (h) Words and phrases

"Grain" and "food"-Meaning. [p. 125]B et seq Corpus Juris Secundum, Vo!. 38, pp. 975-976 & Vol. 36-A,, p. 771; Rickel v. Republic Mut. .Fire Insurance Co. 282 P. 757; Encyclopaedia Britannica, 15th Edn., Vol. 7, p. 481 and Words and Phrases Legally Defined by Butterworths, 2nd Edin., p. 264 ref. (c) Martial Law Regulations (1958) [C. M. L. A.'s]- No. 42, para. 2(c)-Words "foodgrains"-Held, used in wider sense and in context of special purpose of law and cover "rape seeds" as well-[Words and phrases]. [p. 130]C Messrs Dada Sons v. Messrs Bengal Oil Mills Ltd. Civil Appeals Nos. K-23 and K-24 of 1969 ref. (d) Contract Act (IX of 1872)- . S. 56 read with Martial Law Regulation [C. M. L. A's No. 42 of 1958]-Contract for supply of "rape seed"-Central Government fixing price of "rape seed" under M. L. R. No. 42 of 1958 during currency of such contract--Control price being much less than contract price, contract becoming unlawful and impossible to be performed and thus getting frustrated-Purchaser, in circumstances, refusing to undertake risk of being prosecuted-Held, cannot be said to be guilty of deliberate breach of contract. Inn. 1_fi_ 1321D or .eon .B F. Messrs Dada Sons v. Mesrss Bengal Oil Mills Ltd. Civil Appeals Nos. K-23 and K-24 of 1969; Klsanlal Nandlal and another v. Vithal Nagayya Kondawar A I R 1951 Nag. 320 and Jagadlsh Prosad Pannalal v. Produce Exchange Corporation Ltd. A I R 1946 Cal. 245 ref. (e) Contract Act (IX of 1872)- -- S. 56-Frustration-Doctrine of-Doctrine not an exception to rule that a man must pay damages if he breaks contract-Frustration of contract, a developing concept-Doctrine guillotines contract without action of either party. It is to be remembered that doctrine of frustration is not really an exception to the rule that a man must pay damages if he breaks the contract for there can be no default in not doing that which the law prohibits. It may be stated frustration of a contract is a developing concept like negligence; its categories are never closed but are as wide as the categories of human conduct. Its effect is immediate and automatic. It guillotines the contract without th.- action of either party. [p. 132]F Kishanchand L. Bharwani, Advocate Supreme Court for Appellant. Jan Muhammad Dawood, Advocate Supreme Court and Shafiq Ahmad, Advocate-on-Record for Respondent. Date of hearing : 14th January 1980. JUDGMENT KARAM ELAHEE CHAUHAN, J.-Messrs Mansukhdas Bodaram (hereinafter called the vendors) .entered into a forward. contract for the supply of 1125 bags (i.e. 2250 maunds) (each bag being of two maunds) of rape seed (1959-60) crop at the rate of Rs. 68 per bag on 21-7-1958 to Messrs Hussain Brothers Ltd., Karachi (hereinafter called the purchasers). Another forward contract was entered into between the same parties on 23-7-1958, for the same quantity but at a slightly different rate namely Rs. 68-8-0 per bag. It appears that due to the promulgation of Martial Law Regulation 42 of 1958 whereunder by notification dated 10,/14-11-1958, the price of rapeseed was fixed at reduced rate of Rs. 27-8-0 per maund the implementation of the contracts which the plaintiffs had kept alive upto 28-5-1959 did not proceed any further, but considering that the said Regulation had no effect on the contracts in hand, and the consequent refusal of the purchasers to lift the supply on. that count constituted a breach on their part, the vendors filed a suit to claim damages in the sum of Rs. 32,062.50 on the original side of the High Court but without any success as a learned Single .fudge of that Court by means of his judgment dated 1-12-1965, dismissed the same holding that the contracts between the parties had frustrated due to promulgation of Martial Law Regulation 42 of 1958 whereunder different price for the .supply of such goods had been fixed which made it impossible for the parties to perform the original contracts at the contractual rates.

2. The vendors filed a Letters Patent Appeal being L. P. A. 92 of 1966 which also met the same fate and was dismissed by a learned Division Bench of the High Court an 15-3-1966. The vendors have come up in appeal against the same by special leave which was granted on 8-3-1967, on the lines of Civil Appeals Nos. K-23/69 and K-24/69 titled Messrs Dada Sons v. Messrs Bengal Oil Mills Ltd., decided on 30-1-1980. The present appeal has been heard along with the aforesaid appeals but is being disposed of by a separate judgment.

3. Though it is not. strictly relevant but to complete the history of the case the learned counsel submitted that the purchasers had also filed a cross suit against his clients for the refund of the "advance amount" of Rs. 4,500 which was decreed by the learned Civil Judge, Karachi, on 5-12-1960. The vendors filed an appeal but without any success as the same was dismissed by the learned Additional District Judge, Karachi; on 2-12-1963. The learned counsel pointed out that his clients had filed a second appeal being 284/64 in the High Court which is -still pending, probably to await the result of the present appeal.

4. It was argued by the learned counsel for the appellant that under para. 2 of Martial Law Regulation 42 of 1958 the Central Government had the power to "control .the prices" of (a) imported goods; (b) goods manufactured within Pakistan and (c) selected food grains". In para. 4 then it was laid down that "for the goods mentioned below the prices shall be fixed by the Central Government (namely) (f) woollen and art silk; and their yarns, (ii) wheat, rice and gram, (iii) vegetable ghee and edible oils, (Iv) sugar, (v) iron and steel including galvanised iron pipes, (vi) cement, (vii) newsprint, (viii) bicycles, (ix) cigarette, (x) tea, (xi) shaving blades, (xii) electric lamps, (xili) mechanically propelled vehicles, and (xiv) school and college. text-books. Learned counsel submitted that rape seed did not fall either under para 2 .or para. 4, and as such the notification dated 10/14-11-1958 which fixed its control price was invalid and ultar vires. The contention has no merit, as we shall presently explain:

5. The present case as pointed out above was heard by us along with Civil Appeals Nos. K-23 and K-24 of 1969 titled Messrs Dada Sons v. Messrs Bengal Oil Mill Ltd. decided on 30-1-1980. In that case we dealt with the scope of the aforesaid provisions of law and held in para. 17 that : "If the power of `control of prices' was once so exclusively given to the Central Government then the intention of para. 4 thereafter could not be to make that control over the goods mentioned in para. 2 to be ineffective or a limited control confined merely to few items listed in para.

4. Para. 2 was very wide in scope so far as the categories of goods which could fall thereunder was concerned but para. 4 was confined merely to a few goods listed therein. In our opinion para. 2 gave the general power to control the prices with reference to the types and kinds of goods mentioned therein, and then, if we can say so, without prejudice to the generality of the provisions contained therein,. para. 4 particularly gave list of items about which it was stated that the Central Government shall fix their prices. The word "shall" is used both in para. 2 as well para. 4 and it cannot be said that whereas in para. 4 it became the duty of the Central Government to fix the prices of goods mentioned therein, there was no such duty to fix the prices of goods mentioned in para.

2. In other words para. 2 is the general provision and items mentioned in Para. 4 were just in addition and ancillary to and illustrative of para. 2 and not in exhaustion thereof in any sense so as to deprive the Central Government of its powers to fix prices of goods which may not have been specifically listed in para. 4 though otherwise they squarely fell under para.

2. Any other construction would tantamount to take away or dwindle down that power which was bestowed in para. 2 and would otherwise make that bestowment an exercise in futility on the part of the law giver in the sense that it will take away with one hand which it had given with the other.

6. At another place (in para. 18 of our aforesaid judgment)-we held as follows "The matter can be approached from another angle as well. Assuming that under para. 4 the law maker imposed a duty on and made it obligatory for the Central Government to fix prices only of goods listed therein. In that perspective if any goods mentioned in that list were for example an end product of various other goods, not independently mentioned in that para, then while fixing the price of that end product, a question arises can the price controller-(in this case the Central Government)-not also fix the price of the aforesaid contributory goods which lead to the manufacture of the relevant end product. In , our opinion this incidental power should not be denied to the price controller subject to the rider that in this respect the contributory goods must fall within and not outside the scope of the generality of goods specified in para.

2. In this way both para. 4 and para. 2 can be read complimentary to one another and the suggested conflict, if Any between the two can be avoided. Applying this principle to the facts of the present case we note that one item in para. 4 is Item No. (iii) headed as "vegetable ghee and edible oils"(like cottonseed oil). It is well known that these items are the end products of and manufactured from cottonseed. The price controller while fixing the price of both these items namely the vegetable ghee and edible oil may therefore first take note of, fix or regulate as the case may be, inter alia, the price of cottonseed, and if in fact he does so, can, it be said that his action in this respect is in excess of his authority or power under para.

2. In our opinion the answer is in the negative because "cottonseed" being a commodity, as earlier explained, manufactured in Pakistan, it fell squarely in the kinds of goods price whereof could (as well) be controlled and fixed by the Central Government. Worked in this way the relevant provisions of law can achieve their objective efficaciously and any other construction will tend to create unnecessary hurdles and difficulties in that respect and must be avoided."

7. Examining the present case in the light of the above construction of law, it will be noticed that the Central Government had the power to fix the prices of vegetable ghee and edible oils-(under Item No. (ill) para. 4 of the Regulation). Now both these are directly manufactured, from rape seed, and if therefore the power to fix prices of the end product namely vegetable', ghee and edible oils is there, then as held above, the power to fix the price' of the seeds from which these oils are manufactured should also be there, provided the rapeseed can be held to fall under any of the heads of para.

2. The relevant head which can be considered to cover "rapeseed" in our opinion is head (c) "selected foodgrains" and our reasons in this respect follow hereafter.

8. The "grain" is described in Corpus Juris Secundum Volume 38,1 pages 975-976 as "A generic term, definded collectively as the unhusked or the threshed seeds or fruits of various food plants, now usually the cereal; grasses, but in commercial and statutory usage also flax, peas, sugarcane seed, etc. the .fruit of certain plants which constitute the chief food of man, and beast; a hernel, especially of those plants, like wheat, whose seeds are used for food, a single small seed; a small hard seed; specially, a seed o one of the cereal plants/collectively, the gathered seed of cereal plants in mass, also the plants themselves, whether standing or gathered. Sometimes the term is used to designate a crop in a field, or cereals in the straw. In accordance with the context or the connection in which it is employed the term may include barley, bran, broom corn in general, corn and millet, hay, flax, bay or stalk, maize, malt or malted barley, millet, millet hay, oats, peas, rye, sugar-cane seed, and wheat; but it has been held not to include cottonseed meal." In certain illustrative cases mentioned in the relevant footnotes (e.g. footnote 75) reference is made to Rickel v. Republic Mut. Fire Insurance Co. (282 P. 757- 129 Kan 332), for the proposition that "in modern usage the seed or seed like fruit of any cereal grass, as wheat, maize, oats, rice, millet, etc. "would also be grain. It is also stated that grain means "a single seed or hard seed of a plant, particularly of those kinds whose seeds are used for food of man or beast."

9. In the same book (Vol. 36-A) at page 771 is defined "food". It is stated that "food is that which is eaten or drunk for nourishment. Food, in the general sense of the term, is "that which is eaten or drunk for nourishment". It includes lard, milk, milk chocolate, coffee, cheese, condiments, candy, confectionery, popcorn, and oleo oil, but not talc, tobacco, whisky, or saccharin. The distinction between what is a food and what is a medicine is clear, although conceivably an article may be a food and a medicine both. What constitutes food within the meaning of statutes making it an offence to mingle poisons with food is considered in poisons. In food statutes the - term usually includes all articles used for food or drink by man, or by man and- other animal, whether simple, mixed, or compound. As used in the Federal Food, Drug, and Cosmetic Act, 21 U. S. C. A. 301 et seq., the term must be read in such a way that it includes, but is not limited to, items which are unfit to be consumed. The test for determining whether an item is a food under the Act cannot be one of intended use. It must of necessity be one which regards items as food which are generally so regarded when sold in a food form. In construing certain statutes, it has been. held that the terms "food" does not include a beverage or drink; and it is also held that, while .the usual pure food statute which expressly provides that the term "food" shall include articles used for drink would undoubtedly cover the ordinary beverage, it does not comprehend an article, such as whisky, which at the time is outlawed as a beverage. While articles used for medicines and also used for food are within some food statutes, concentrated mineral spring water is not a food within the meaning of the federal statute where it is not in its original condition as it came from the earth and the processes of separation of the constituent drug elements have been carried to the extent that the water can no longer be used as a beverage, but only in small quantities or doses as a drug. A legislative body may provide its own definition of food, under a law which it enacts, and, when it does so, that definition must necessarily control regardless of dictionary definitions, or even though it goes beyond the ordinary meaning of the term".

10. Attention is also invited to the new Encyclopaedia Britannica (15th Edition, Volume 7), page 481, where under the head "Food, New Sources and Products" there exists a comprehensive survey on the subject. It reads as follows : "Since prehistory man has survived on a diet consisting of a relatively few species of plants and animals that he domesticated so long ago that their origins are forgotten. Three cereals wheat, rice, and corn supply the bulk of human energy, protein, and vitamin requirements. Since about the 1940s, however, the unprecedented rate of population growth, the development of new technology, and a variety of economic factors have changed traditional concepts of food supply and led to the discovery of new sources of food, especially protein, and new ways in which these materials can be marketed. The demand for increased food supplies is related both to population increase and income. At very low levels of per capita income, small increases go primarily for purchasing food. In. regions where population growth is highest and income lowest, the demand for food premises to increase very rapidly through the 1970s and 1980s and at a much faster rate than in more developed and stable regions. Part of the new demand will be met by an agricultural revolution, under way in the 1970, based upon new varieties of plants, intensive fertilization, and irrigation; but the diets of some of the world's population, especially young children and nursing mothers, must be supplemented by additional protein even if traditional agricultural foods such as cereals supply sufficient calories. Further some of the rapidly rising demand for such traditional foods as milk, cheese, meat, and seafood will exceed potential sources and will therefore need to be met by synthesized substitutes similar in appearance, taste and texture. Cultural habits and traditions universally create food preferences and inhibitions, complicating the introduction of new sources of food. In western countries, rice, which has about the same nutritive value and table use as wheat products, remains less preferred, a situation reflected in prices of the two foods. In South-East Asia, seafood products are preferred with a strong fish flavour, but in Western countries the same flavour is considered objectionable. Current food research has been largely stimulated by the rapidly growing world demand, but technological advances in other areas also have contributed. The fibre spinning processes developed for synthetic fabrics and. the U. S. and Soviet space programmes have had impact. Similarly competition among food producers has provided impetus for research. NEw SOURCES OF FOOD PROTEIN The most significant aspect of the search for new food sources is probably the need for adequate protein, especially; in regions where meat and fish are available in limited quantities. Oilseeds.-Potentially, 80,000,000 tons of oilseed protein are available per year for human feeding. The current rate of production, however, is far below this. The world production of major oilseed crops (in millions of metric tons) is: soyabeans, 46.5, peanuts, 18.1; cottonseed, 22.1: . and copra, 3.4. The primary purpose of cultivation of various oilseeds is to obtain edible oil for table or for use by industry In the manufacture of margarine or shortening. The basic process for extracting the oil is essentially the same for all oilseeds and involves either pressing or solvent extraction or a combination of the two. The material remaining after removal of the oil contains primarily fibre, carbohydrate, and protein. The protein can comprise up to 50 per cent. of this residue, depending upon the particular oilseed. This material is either discarded, used as fertilizer (actually it is a poor source of protein in animal feeds). Currently only a small percentage is recovered in a form suitable for use in human foods. Food applications of these materials are limited because of the overly strenuous conditions under which many of them are handled to remove the oil and because of their market image as fertilizers or animal feed. Each of the oilseeds has specific problems of processing as well: The oilseed proteins are the least expensive of all of the .protential new proteins in their simplest edible state, but additional refining doubles or trebles the price. It should be noted that there is no certain method for comparing the nutritive values of various proteins; their actual worth depends upon a variety of external environmental factors, such as the other components of the diet. An approximate comparison of proteins tested in laboratory research gave the Mowing relative nutrient values: egg, 100; casein, 60-70; soy, 40-50; yeast, 40-60; and fish protein concentrate (F. P. C.), 70-80. Soyabeans.-Soyabeans are the most important of the oilseeds. Soyabean oil is recovered primarily by solvent extraction, and the residue is approximately 50 percent protein. The defatted soy contains a number of undesirable constituents that must be removed or inactivated, particularly a numbee of physiologically active proteins. One that inhibits the important digestive enzyme trypsin must be inactivated by heat. This process must be carried out with great care, because the desirable proteins also are affected by heat in a manner that reduces their solubility and nutritive value. Other factors limiting the usefulness of soy protein are a bitter, beany off-flavour and the presence of two soluble carbohydrates (raffinose and stachyose) that lead to dissension of the human gut and flatulence. Each of these factors may be ameliorated by processes that purify the protein and yield products of higher protein content. These processes will be described briefly. Traditionally, Oriental peoples use three forms of soyabean: soymilk, a watery extract produced by cooking the beans at high temperature; tofu, a protein curd that is 'precipitated from the soy milk; and miso, shoyu, acid other food products that are manufactured by fermentation processes. The simplest method of purification used in Western countries involves immobilization of the protein and removal of extraneous materials. This is accomplished either by extraction with aqueous alcohol or by extraction with water at the iso-electric point; that is, point at which the acid-alkaline factor in the substance makes it electrically neutral. The minimum solubility of soy proteins on the pH scale of acidity-alkalinity, is at pH, 4 to 5, moderately acid. Either process removes most of the undesirable soluble carbohydrates and some of the off-flavour, giving a product approximately 70 per cent. protein, called soy protein concentrate, a valuable food additive. An even more refined product is created by carrying out a process the reverse of the above; the protein is made soluble by extraction at an alkaline pH and separated from the insoluble residue. The protein is then precipitated by readjustment of the pH, back to the region of minimum solubility. The cycle can be repeated a number of times to increase the purity of the protein. Products of this type, called soy protein isolates (S. P. L), are 90 to 99 percent protein. Almost all of the objectionable characteristics have been removed from the S. P. I., and the material can be incorporated in a large variety of food products. This material can be texturized by spinning into edible fibres (more fully described later). Completely different products, full-fat soy flours, are made from dehulled beans by heating at high temperatures for short periods in an extrusion apparatus. The heating denatures the proteins and provides a greatly expanded surface that absorbs the oil to such an extent that a dry free-flowing powder can be obtained. These .products are much less expensive than soy protein concentrate and, are of particular interest in countries where oil is in surplus. Cottonseed.-Another potentially important source of protein, cottonseed, has very little current use in food supply. The protein of this plant is a tertiary by-product of cotton fibre and oil production, and the seed is rarely handled under conditions that would allow ultimate human consumption. Cottonseed has very small glands (a gossypol, which is toxic to non-ruminant animals. This pigment also can react with the protein to inactivate the nutritive value. The processing of the protein therefore must remove the gossypol without extensive damage to the protein. These criteria for recovery of the oil can be met by a combination of prepressing and solvent extraction. In the pressing, sufficient heat is generated to inactivate the gossypol but not destroy the protein and the last traces of oil are removed by extraction. The resulting, product contains 50 to 55 percent protein, and the nutritional value can be improved greatly by addition of lysine. This protein is the basis for a vegetable protein mixture called Incaparina, which has been used in parts of Central and. South America for a number of years to prevent protein malnutrition. A newly-developed glandless form of cotton without gossypol may significantly affect the future use of cottonseed protein if the yield and quality of the cotton linters can be adequately accounted for. Another development, a centrifugal process for separation of a highprotein (70 percent), low-gossypol fraction from the meal, produced by a straight solvent-extraction process, may find application if the costs involved in such a process can be lowered. Other oilseeds.-The peanutt, coconut, rapeseed, and sunflower are potentially significant oilseeds. The peanut finds considerable use as a whole food because it' has no toxic or indigestible components. It is important as an oilseed in India, and the protein could be very significant to that country. A problem, not necessarily peculiar to peanut meal, is the production of highly toxic mold metabolities during unfavourable storage conditions. One toxin, aflatoxin, is a dangerous carcinogen. It has been excluded from such food supply by industrial screening. Peanut meal is approximately 50 persent protein and is poorer nutritionally than soy protein. Coconut usually is processed by sun drying to copra, which is not an effective starting material for a protein concentrate; the protein content of the oil-free residue is only 20 per cent. Sunflower is becoming significant in European oil markets, as is rapeseed in Canada and northern Europe."

11. In "Words and Phrases Legally Defined" by Butterworths (Second Edition) page 264 it is stated that "Food" "includes any substance ordinarily used in the composition or preparation of food, the seeds. of any cereal or vegetable and any feeding stuffs for animals, but does not include growing crops. Food includes drink, chewing gum and other products of a like nature and use, and articles and substance used as ingredients in the preparation of food or drink or such products . . . . . . . "Reference at that place is also made to a passage of Hawkins, J, in James v. Jones (1), where he observed that "we do not, however, in anything we have said; intend to convey it as our opinion that nothing can be deemed to be an article of food unless it be made up into an eatable or drinkable form and fit for immediate use, for we have no doubt that the substantial and requisite materials for making, and which are to form part of the unadulterated article when made, e. g. flour, butter, salt, mustard, -pepper, etc., are articles of food; for though nobody would ordinarily dream of eating them alone, yet they are articles of food, or to bz eaten as adjuncts thereto". In the same book at page 332 with reference to grain it is stated with reference to section 24 of the Merchant Shipping (Safety Convention Act, 1949), that "in this section the expression "grain" includes wheat, maize, oats, rye, barley, rice, pulses and seeds, and the expression "ship carrying a cargo of grain" means a ship carrying a quantity of grain exceeding one-third of the ship's registered tonnage, reckoning one hundred cubic feet or two tons weight, of grain as equivalent to one- ton of registered tonnage."

12. Proceeding to examine the present case in the light of the above, legal position relevant in cases of this type, we have no hesitation in holding that under Martial Law Regulation 42 of 1958 the words "food( grains" were used in a wider sense and in the context of the special purpose for which that law was made they would cover, in view of the peculiar situation prevalent in the country at that time as explained in Civil Appeals Nos. K-23 and K-24/69, the "rape seeds" as well. The result of our this finding is that with the promulgation of the relevant notification the contracts in hand which were alive on 28-5-1959 got frustrated and became unlawful and impossible to be performed and as such the plaintiffs could not claim any damages for their alleged non performance due to ,the reason aforesaid. ?

13. Here it may be pointed out that though we have found on the basis of the relevant legal material above mentioned that in this special law of its own nature the words "foodgrains" covered "rapeseed" but even otherwise instrinsic evidence is clearly available to the same effect from the context of the legislative development and intent on the subject. In this context it may be pointed out that Martial Law Regulation 42 was reconstituted on 9-12-1958, wherein whereas para. 2 of the Original Regulation remained the same in para. 4 Item No. 3 was re-cast to read as "vegetable ghee, edible oils and mustard, rape and toria seeds". We have already held in Civil Appeals Nos. K-23 and K-24/69 that list in para. 4 is merely illustrative of the generality of provisions of para.

2. If this is so then the action of the relevant law maker by including "rapeseeds" in the list o f items of which prices could be or shall be fixed by the Central Government gives support to our finding that the words "foodgrains" were very wide and if read in the light of the illustrative items given in para. 4-(no doubt? (1)(1894) Q B 304 of the reconstituted Regulation)-there is left no room for doubt that the relevant law maker placed them under "foodgrain" because otherwise they would not fall in any other category specified in para.

2. To reiterate para. 2 confers a power and para. 4 without impairing the generality of the power points out the specifics in respect of which the power may be exercised. Such coupling of power with illustrative items follows fairly familiar principle of law making e. g. (a) when power is conferred on a authority guidelines for its exercise are provided by enumerating without exhausting a few items as in case of rule making power (b) legislative intent is made more manifest by way of abundant caution by specifying a few likely marginal/products, or spheres or requiring exercise of that power and (c) while conferring power to draw the attention of particular authority receiving that power to items deserving immediately or prior attention necessitating the legislation. Looked at from whatever angle the conclusion arived.at by us, as mentioned above remains the same. Here it may be clarified that we have referred to Item No. 3 of para. 4 of the reconstituted Martial Law Regulation 42 not for the purpose of showing that it was retrospective in any form because as already explained in detail in the main judgment hereinbefore mentioned this is not so with the result that the notifications issued under the Original Regulation will be operative from the dates mentioned in that Regulation, whereas the notification issued under or after the reconstituted regulation will come into operation from the dates mentioned in the reconstituted Regulation. The sole purpose of our referring to the reconstituted Item 3 of para. 4 of reconstituted Regulation was to point out that if the parent provisions in para. 2 have remained intact, then obviously "rapeseeds" were already covered thereunder and their mention in the reconstituted item 3 was simply to further clarify the matter and to remove the ambiguity on the subject if any.

14. To say something further on the subject of frustration of the contract it may be pointed out that the relevant Martial Law in the country had been imposed on 7-10-1958, whereby the Constitution of 1956 was abrogated; the National and Provincial Assemblies were dissolved and an altogether new Order in the country was introduced. On 7-10-1958 (gazetted on 15-10-1958) the Chief Martial Law Administrator issued the following notice (See P L D 1958 Central Statutes page 499) : "(1) Whereas I adjudge it essential for national requirements to exercise jurisdiction within the international boundaries of Pakistan, I, the Supreme Commander of the Armed Forces of Pakistan do hereby give notice as follows. (2) Martial Law Regulations and Orders will be published in such manner as is conveniently possible. Any person contravening the said Regulations or Orders shall be liable under Martial Law to the penalties stated in the Regulations. (3) The said Regulations may prescribe special penalties for offences under the ordinary law. (4) The said Regulations may appoint special Courts for the trial and punishment of contraventions of the said Regulations and Orders and of offences under the ordinary law. On 10th October 1958, the Chief Martial Law Administrator issued Laws (Continuance in Force) Order, 1958. Article 3 of this Order laid down that No Court or person shall call or permit to be called in question (i) the Proclamation (ii) any Order made in pursuance of the Proclamation or any Martial Law Order or Martial Law Regulation." Martial Law Regulation 42 of 1958 was issued on 1/4-11-1958 ' and then it was the Martial Law Government itself-(being the Central Government) which issued the relevant notification on 10/14-11-1958 fixing thereunder the maximum price of rapeseeds at Rs. 27-8 per maund (i.e. Rs. 55 per bag of two maunds). Violation of any price fixed under Martial Law Regulation 42 of 1958 was made a penal offence. 1n these circumstances it will be too much to expect that the purchasers should have despite the situation above explained gone ahead on 28-5-1959-(the date upto which the contracts were kept alive by the plaintiffs)-or hazarded to go ahead in ignoring that notification and taking risk of facing a prosecution by purchasing the rapeseeds, at the contract price, in violation of (if we can use this term) Regulation price. The risk for prosecution was in this way "real" as distinct from a mere commercial risk of just some financial loss or gain in the bargain. Reference here may be made to section 56 of the Contract Act IX of 1872 which so far as relevant states that "A contract to do an act Which after the contract is made, becomes impossible, or by reason-of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful". In Kisanlal Nandlal and another v. Vithal Nagayya Kandawar (1), it was held that, when under Oilseeds (Forward Contracts Prohibition) Order, 194.3 read with rule 81(4) of the Defence of India Rules the performance of forward contract of oilseeds was rendered unlawful, the contract became impossible to be performed or unlawful thereafter and that an impossibility arising from an Act of the Legislature subsequent to the contract discharges the contract from liability. Similar was the position in Jagadish Prosad Pannalal v. Produce Exchange Corporation Ltd. (2), where a contract was rendered .void by fixation of a price under the law different from the contract price. - It may here be stated that the matter is to be examined in the light of the further principle that a law remains valid unless and until a declaration to the contrary is obtained from a Court of competent jurisdiction and the same is the position of the statutory notifications and orders. In the face of this state of the legal position on the subject, and the factual circumstances above mentioned, the act of the purchasers to purchase and lift the goods at contract rates, would have' been in violation of Martial. Law Regulation 42 and therefore if they refused` to undertake that realistic risk of being prosecuted they cannot be said) to be guilty of a deliberate -breach of a contract. It is to be remembered that doctrine of frustration is not really an exception to the rule that a man must pay damages if he breaks the contract for there can be no, default in not doing that which the law prohibits. It may be stated 'frustration of a contract is a developing concept like negligence; its categories are never closed but are as wide as the categories of human conduct. Its effect is immediate and automatic. It guillotines the contract without the action of either party. 151 The result is that this appeal fails and is dismissed hereby leaving the parties to bear their own costs. s? Q?? Appeal dismissed, (1) A I R 1951 Nag. 320 (2) A I R 1946 Cal. 245