1989 PLP 3429 (MLD)

Zameeruddin Ahmad for Petitioners. Muhammad Ahmad Siddiqui for Respondents. Dates of hearing: 26th September and 5th October, 1988. This is a Revision Application against the judgment dated 5-7-1988 and decree dated 30-7-1988 passed by the, District Judge, Karachi (South) whereby he dismissed the appeal and affirmed the judgment and decree dated 9-2-1984 passed by the Vth Senior Civil Judge, Karachi (South). The facts leading to the filing of the above revision are that Jinnah Post Graduate Medical Centre, Ministry of Health, Government of Pakistan, Karachi, inter alia gives training on certain . usual condition to Nurses and Midwifery training. It is the case of the respondent that one of the conditions being that the trainee has to execute Bond undertaking to complete the training during which the trainee is provided with stipend, uniform allowance etc., and to serve the Government of Pakistan, for a specified period, after completion of training, if required. The appellant No.1 executed a bond on 15-9-1976, in the sum of Rs.10,000 in favour of the President of Pakistan, for General Nursing Training and another Bond on 14-4-1980, in the sum of Rs.5,000 in favour of the President of Pakistan from Midwifery Training, with applicant No.2 as surety in both the Bonds, and the same were accepted for training. The applicant No.1 completed her General, Nursing Training for three years commencing from 4-10-1976 and before expiry of one year from the date of the completion, thereof, she was allowed to undergo Midwifery Training, on her own request, and she completed one year's training of Midwifery on 31-3-1981. It is the case of the respondent that she served as Charge Nurse from 20-4-1981 remained on 140 days leave from 1-3-1982 to 19-7-1982, and did not return to her duty thereafter, as such, she failed to serve the Government of Pakistan, for three years and two years in violation of condition No.4 of the aforesaid bonds. She was required on duty by Memorandum dated 7-8-1982 and 2-9-1982 but she failed to resume duties as such she was removed from service with effect from 20-7-1982 vide Office Order dated 18-2-1984. Thereafter a demand was made for payment of Rs.15,000 in favour of the bonds to the applicant but the same was not honoured. Hence the respondents filed Suit No.62 of 1985 for recovery of the said amount. The applicant No.1 resisted the suit. The trial Court framed appropriate issues. The trial Court held that the applicant No.1 failed to comply the condition of the bonds executed by her with surety of the applicant No.2. He held that both the applicants are severally and jointly liable to pay Rs.15,000 to the respondents in terms of the bonds. The applicants went in appeal before the First Appellate Court. The First Appellate Court held that the contract was not frustrated on account of marriage. The Appellate Court held that since the applicant No.1 herself failed to serve the respondents for the period under the Bonds as such the applicants have violated the terms and conditions of the Bonds. The applicants being aggrieved filed the present revision. I have heard Mr. Zamiruddin Ahmed, learned counsel for the applicants in support of the above revision. I have also heard Mr. Muhammad Ahmed Siddique Advocate in response to notice. The doctrine of frustration is well enshrined in section 56 of the Contract Act. It is applied on the ground of impossibility of performance of contract due to the supervening events over which the parties had no contract. If the changed circumstances make the performance of the contract impossible the parties would be absolved of further performance of it as they did not promise to perform an impossibility. The word "impossible"' has not been used in Section 56 of the Contract Act in the sense of physical or literal impossibility. The performance of act may not be literally impossible but it may be impracticable and useless and if an unforeseen event or change of circumstances totally destroy the very foundation of the adventure it can be said that she finds it impossible to do the act which she promised to do. In the present case the applicant No.1 was imparted training and she agreed to serve the Government for the specified period which she did not serve. The doctrine of frustration is not applicable to the facts of the case. I have already referred to the circumstances which induced the Courts below to come to the conclusion of non-performance of the contract on the part: of the applicant No.1. It is not possible to take a different view. I do not find any material irregularity in coming to that conclusion by the Courts below justifying. interference in the revisional jurisdiction. The learned counsel for the respondents submitted that the applicant; No.1 served for 11 months. The amount of Rs.10,000 is reduced to Rs.6,

700. In view of this submission the decretal amount is reduced to Rs.11,

700. The application, therefore, having no substance, must fail and it is hereby dismissed. The respondent's suit is decreed for Rs.11,700 only. In the circumstances of the case the parties shall bear their own costs. MA.K./M-806/K Application dismissed.