Vishram Arjun vs Irukulla Shankariah and Another

Kumayya, J.—It is intended by this judgment to dispose both the appeals Nos. 121 and 99 of 1954 arisen, out of a single judgment dated 10-7-1954 passe by the District Judge, Secunderabad. Appeal No 99/1954 is filed by the Plaintiff, Vishram Arjun, against the dismissal of his suit and appeal No. 1217, .1954 is preferred by the Defendants, Yerukula Shankarayya, timber merchant of Warrangal and: Muhamed Mohasin Khan, timber merchant of Chinnur against the dismissal of their counter-claims.

The facts of the case are simple and for the most part undisputed. It would appear from, the pleadings that P. W. Department undertook ; Kadam Canal Project which was to run through some of the forest area in Adilabad District. The site of the canal and certain portion (space) on either side of it had therefore to be first cleared: Vishram Arjun, a contractor was given the contract of clearing the portions between miles 26 to 30 in August 1949. Ex. D-34 dated 30-8-1950 is die agreement between Vishram Arjun and the Forest Department and it embodies all the terms to-which the contract of sale was subjected.

The forest produce which formed the subject matter of the agreement comprised the entire produce in existence at the time in the contract area and also which shall come into existence in. future and which might be removed from that area , by the contractor between 1-6-1949 and 31-7-51. The contract for clearing the other portion between miles 21 and 25 was originally given to another contractor, Ratanji Kanji but on his withdrawal was given to the Plaintiff on 28-1-1950. The Plaintiff however sold the timber between miles Nos. 26 to 30 to the Defendants under Ex. P-6 dated 10-11-1949 executed in duplicate- He also sold the felled timber in the area; between miles 21 to 2-5 on the same terms as embodied in Ex, P-6 on 10-5-1950 ) the same

It was agreed that the Defendants would pay Rs. 1,00,000/- towards felling charges within five months besides full amount: of valuation of the jungle as fixed by the P. VV. I), as and when demanded .from the Plaintiff. The Defendants paid only Rs. 40,000/- towards felling charges and though the valuation of the jungle was fixed by P. W. D. at Rs. 2,02,226-5-0 only a sum of Rs. 1,02,800/- was paid by them to the Plaintiff''. Some disputes arose in relation to further payment. Consequently the Plaintiff applied on 2-2-1951 to the forest authorities to prevent the transfer (removal) of timber till the entire payment was made.

The forest authorities in order to ensure their amounts attached the timber'' and placed certain restrictions on its movement and sale. Eventually die parties settled their dispute and entered into an agreement with regard to the payment of money. This agreement is said to have been executed in two counter-parts each of which was signed by the other party.

According to the terms of this agreement tile original amount as fixed was reduced and facility lor payment in instalments was given to the Defendants. The .Plaintiff was held responsible to get the attachment of timber vacated within a week and the Defendants to make regular payments. The Plaintiff in spite of his best efforts could not get the attachment vacated within the time stipulated. The Defendants nevertheless carried on their work of transfer of timber and sale thereof subject to the restrictions placed by forest department and .even made certain payments to the Plaintiff.

They did not however pay the stipulated amount in full to the Plaintiff and at T;ist gave notice to the Plaintiff claiming damag s. The Plaintiff therefore brought a suit on the basis of Ex. P-6 for the recovery of a sum of Rs. 1,34,949-5-0.

The Defendants in their written statement disputed the right of the Plaintiff to base his claim on Ex. P-6 as it was .superseded by Ex. D-7 and set up their own-counter claim for Ks. 75,000/- as damages for the loss they sustained due to the Plaintiff''s non-compliance with the terms of the agreement Ex, D-7 dated 3-4-1951. The Plaintiff''s contention, on the contrary, was that Kx. 1)7 which was not properly stamped was firstly inadmissible in evidence and secondly, did not operate as Novato to form the sole basis of the claim.

It was further urged that the Defendants were guilty of default and not the Plaintiff who did his bees to get the attachment lifted within time, that the Defendants without the knowledge and consent of the Plaintiff gave an undertaking to the forest'' authorities as a result of which the Plaintiff was rendered helpless and the attachment continued and that the Defendants did not rescind the contract but took advantage of the same by transferring and selling the timber and have sustained no less which they can legitimately claim from the Plaintiff.

The learned trial Judges agreed with the contention of the Plaintiff so far as the counterclaim of the Defendants was concerned and dismissed the same accordingly but held that the claim of the Plaintiff based as it was on Ex. P-6 was untenable. The Plaintiff had applied t in vain for the W in fact the Defendants; but neither Jucn rein argument that on the admission of the themselves the Plaintiff could be grant life found favour with the learned Unmissed the suit with costs against the Aggrieved by this, Plaintiff has come the Defendants too have preferred against the dismissal of their counter law

Sri'' Ramaswami Aiyangar of be the Appellant-Plaintiff advanced his thee garment in support of his contention that instituted ought to have been decreed ii the Plaintiff. His main contention is the neither in fact nor in law constitutes no argument is that it was not the intend parties that Ex. D-7 shall extinguish %X the previous contract nor can it be document; is inconsistent, contradictor not co-exist with the original contract It is pointed out that this is not document in relation to all the terry. gratins, of the parties to the contractu1;! cannot therefore be regarded as a neon''s pendent agreement substituting the i,e,.. tract. The next argument is that even o taken up by the Defendants on the basis which is admitted by the Plaintiff, the r be granted to the Plaintiff and it was on the court to grant the relief which the trances of the case demand and the law The 3rd argument is that there was action for rejecting the petition for am the plaint when questions of prejudice could not arise at all. One other argued by the learned advocate was thrp0'' dents have not maintained the integrity mint Ex. D-7 and since they are guilty lion in relation to one of its maternal t.( document must be thrown out of evidence result that the Plaintiff''s suit based on Ex. 1 to have been decreed.

Admittedly these are the only main versa points involved in this appeal. I point therefore for our consideration is, who D-7 extinguishes all rights and liabilities or. old contract to form the sole basis for an against the Defendants, in other words, \\ Ex. D-7 is a notation. The term ''notation'' that there being a contract in existence son contract has been substituted for it resulting charge of the old contract. This term app the marginal note to Section 62 of the India, tract Act which reads as below:

Elect of notation I "If the parties to, recession and alter tract agree to subsist ton of contract. I new contract for it second or alter if the contract need not | formed."

Substitution of a new contract is the core action. Its essential feature is that a right un-1 original contract is relinquished and new reliable to new contract are created. The sated contract therefore must be a valid and able contract to be effective as notation. new agreement or contract suffers from legal such as want of registration, stamps of or count of'' oh it

abilities of the parties will be deter basis. The learned Counsel therefore a plea of insufficiency of stamp has point that in as much as Ex. D-7 has altered by the insertion of a letter a ''''Dot and shosha" which deter-of one of the parties, the doeu- unenforceable and cannot stand in '' of he Plaintiff''s claim based on Ex. P-6. appreciate this argument, it is necessary ''translated relevant passage in which in question is alleged to have been at is as below:

Of this document the liability for which can be recovered will ''not'' be on la S-Tukarayya, you of Mr. Narasayya of word ''not'' represented by ''Na'' (a dot to the word appears on the to be a subsequent alteration for it is mind that according to the terms of the originally entered into, the liability was non stated. This alteration is no doubt if effected during the period when the as in the Defendant''s custody, certainly of being thrown out of evidence.

that a party who has the custody augment for his benefit is bound to pre Has original alteration is made which affects the contract expressed in the indeed be material and the party from dry it is produced cannot rely on it either or as Defendant. But the question, is, alteration has boon effected while it custody of tire Defendant or his agent. pd by the learned Counsel for the plain-in the counter-part of Ex. D-7 which study of the Plaintiff this ''Na'' appears. ,e absence of any reliable evidence to the ,''Firths only goes to show that the alteration is not the act of the Defendant or his ice of any party. It may be the mistake of ft himself though he might have disowned in his deposition. The same mistake in discounter parts must, in the circumstances ease, point to the characteristic mistake or miswriting of the writer himself rather than easing of any particular party. Evidently judgment in possession of the Plaintiff could ad did not come into the possession of the so that its integrity may be violated. At is not what is suggested or established material on record. The plea of material on therefore becomes devoid of force.

It is next argued that there could be no in. in law after breach of contract for upon of contract it will be only adjustment of rights flowing from the breach rather than union. of any subsisting contract between the It may be recalled that the Defendants had to pay the amounts due to the Plaintiff under 5 and. the oral agreement with the result that 1 got an attachment effected. This even The learned Counsel relying on some of the rulings of the Calcutta High Court has argued that there can be no novation in law after the breach of contract. In Monohar Thayal v. Thakurdas Nas-kar, ILR 15 Cal 319 (A), and New Standard Bank Ltd., by B.K. Dutta, Managing Director Vs. Probodh Chandra Chakravarty, , it: has no doubt been held that Section 62 of the Contract Act is merely a legislative expression of the common law and the provisions thereof do not apply to the case where there has been a breach of the original contract before the subsequent agreement is come to. The argument in JLR 15 Cal 319 (A), was based on the words "Parties to the contract" which were taken to mean parties to an existing contract rather than parties to a contract that has already been discharged by a breach. In New Standard Bank Ltd., by B.K. Dutta, Managing Director Vs. Probodh Chandra Chakravarty, , die words "the original contract need not be performed" have been taken to imply that the performance of the same could still be required and therefore it was held that this section will not apply if the new contract was entered into after the breach of the original contract. The same was the view of the Rangoon High Court in Sakarchand v. Ismael, AIR 1931 Hang 189 (C). But the Madras High Court has taken a different view. In Ramiah Bhagavatar v. Somasi Ambalam, 29 MLJ 125 : AIR 1916 Mad 823) (D), Se.shaghl Aiyar. J., no doubt: agreed with tlie view taken by the Calcutta High Court in ILR 15 Cal 319 (A), as regards the scope of Section 62 of the Contract Act; but Kumaraswami Sastri, J., was not prepared to introduce the principles of common law in construing the sections of the Contract Act. His observation was:

There is no reason why after breach the parties should not agree to vary the terms or why a Plaintiff who consents to such variation should not be hold bound by the terns of his agreement." In K.M.P.R.N.M. Firm merchants carrying on business Vs. P. Theperumal Chetty a Merchant carrying on business, a Divisional Bench of the Madras High Court dissented from the view of the Calcutta High Court and took the same view as Kmnaraswamy Sastri J. In Ramnath. v. Mannulal, ILR 45 All 472 : AIR 1923 All 318) (F), the Allahabad High Court seems to be inclined to the same view.

Thus there is no authoritative pronouncement of this Court so far in this regard. Relying therefore on M. Subbarayudu and Others Vs. The State, , it has been argued that the view of the Madras High Court must prevail. We do not wish to enter into a detailed discussion on the subject or refer the case to a Full Bench as we feel it is unnecessary in view of the fact that the sub'' sequent contract in our opinion is not a novation at all.

We now proceed to consider, whether Ex. D-7 according to the terms, tenor and intent of the parties constitutes in fact a novation. Ex. P-6 dated 10-11-1949 the original contract between the parties, is an agreement to sell. It relates to the contract relating to forest produce between miles Nos. 26 to 30 only. According to its terms, the Defendants had to pay (a) Rs, 30,000/- within a period of five months from the date of receipt of the order from the P. W. D. towards the felling charges of the jungle and (b) the full amount of the valuajtvwj of the

from the Inst parly. Another term of the contract ..s that "such wood as is not useful 1o the second arty shall he left there at: the site for the first arty and shall nor he sold by the between him and the P. W. D. and that he had to execute a power of attorney in favour of the second party.

Ex. D-7 does not bear reference to the agreement of sale. It only refers to a sum of Rs. 1,09,226/- (which was arrived at by private settlement) showing the entire liability and was agreed to be paid by the Defendants to the Plaintiff subject to certain Conditions. The first condition is that Rs. 10,000/- will be paid on or before, the last day of April either through challan or in person. (2) The remaining amount will be paid in monthly instalments from April 1951 to the end of March 1952. In case there was default in payment for two consecutive months, the Plaintiff was given right to take proceedings for the collection of the said amount.

Some rebate was given, with regard to valuation amount on mile No. 21. and the last aid an important clause was that the plaintilf wid he responsible for getting the attachment lifted within one week failing which the liabilities for die transaction will rest with him. Thus ft is clear that as a result of Ex. D-7 the amount in relation To the telling charges and the valuation of the jungle payable under the agreement Ex. P-6 and another oral agreement relating to miles 21 to 25 was reduced and the manner and the time at which it has to be paid is specified in determinate terms.

Obviously enough this agreement dot s not cover all the terms of Ex. P-6 nor is there any reler-ence to the sale agreements. Undoubtedly the agreement is restricted only to some of the conditions viz., quantum and mode of payment: though there are some other conditions ancillary to it.

The question therefore is, whether Kx. l)-7 is in fact a notation. As observed above, a notation is a substitution of the contract and not a mere variation of some of its terms. It should rescind or extinguish the previous contrail. As laid down in Gilbert v. Hall, (1831) 1 LLJ 15 Chh (11), a new and independent agreement concerning the same matter as the previous agreement: may be construed to discharge the former, only if the terms of the latter are so inconsistent with those of the former that they cannot stand together.

In other words, a contract will be said to be rescinded by ''another between the same parties when the latter is inconsistent with or renders impossible the performance of the former. If their legal effect is the same, though they differ in terms, even then it will be a mere ratification of the first and they must be construed together. Whether an agreement entered into is in substitution of an old or not is always a question of fact depend the parties.

Calcutta High Court in Kshetra Nath Sikdar and Others Vs. Harasukdas Balkissen Das and Others, . Looking at the terms of the contract from this angle, we feel it dillieult to come to the conclusion that Ex. D-7 which relates only to some of the terms and is not: a self-contained agreement in relation to the contract of sale entered into between the parties, substitutes or extinguishes the previous contract and can form the sole basis for determination of all rights and liabilities of the party in relation to the contract of sale.

It is substantially an agreement of remission. The same will be the conclusion even if the matter is judged under the provisions of the Sale of Goods Act. One would do well to bear in mind that-Ex. P-6 is a. contract to sell goods. The term ''goods'' is defined in Section 2(7) of the Indian Sale of Goods Act (HI of 1930) as follows:

Goods'' means every kind of moveable property other than actionable claims and money; and includes stock and shares, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale.

According to Section 6 (1) of the said Act, the goods which form the subject of a contract of sale may be either existing goods, owned or possessed by the seller, or future goods. Sub-section (3) o'' the said section reads as follows:

"Where by contract of sale, the seller purport to effect a present sale of future goods, the contract operates as an agreement to sell the goods.'''' The suit contract of sale relates to severed lying in forest area and also future goods there in subject to the Forest Rules as stated in Ex. D-34-'' the original contract of sale executed between then Forest Department and the Plaintiff, is no doubt , contract of sale within the meaning of the India Sale of Goods Act and also the Hyderabad Sale c Goods Act (Act VII of 135.1] F.). By the time E D-7 was entered into, not only the Defendants war put in possession of the subject matter of sale but also that they had removed a substantial portion ouch goods to their destination and even paid con severable amount.

It cannot therefore be said that Ex. D-7 is recession of the previous contract of sale. At the most it is an agreement varying the quantum purchase money in view of subsequent circumstance. The time and the manner in which the payment was to be made under Ex. P-6 was made dependent on the demand of P. W. D. from thc first part? but now it has been clearly determined. There no variation as to the term relating to the) user cable wood to be left for the use of the plaint The term relating to the responsibility of the Plaintiff to the P. W. D. for any dispute is not altered.

Nor is the term relating to power of at for, affected. As a matter of fact this document docs l bear reference to any of these even though they ; some of the important terms of contract of For these, one has even now to look to Ex. P-6 n withstanding Ex. D-7. In this way, Exs. P-6 pother, on" complete

The next point that we have to consider is, whether the subsequent agreement being, admitted by the parties, the Plaintiff is entitled to any extent the monetary relief claimed. It is not pretended that the plaint in any manner either expressly or by implication bears reference to the subsequent contract of 3-4-1951, But the Defendants themselves in paragraph of the written statement dated 16-9-1952 have averred that by virtue of arrived at between the "parties, on 3-4-51 reduced to1 writing in two counter parts, one signed by the Plaintiff x. D-7) and the other signed by the Defendants which is in possession of the Plaintiff, the total liability of the Defendant is reduced and fixed at Its. 1,09,2267-.

It was also stated that the facility of installment and the extension of time was allowed during which the entire amount was to be paid by the Defendants and that it was agreed that the Plaintiff would have the attachment vacated within a week from the date of the agreement failing which he filed himself liable for the loss sustained in. the contract. The delendants further stated that: the Plaintiff did not comply with the particular term of die contract as a result of which the Defendants sustained loss for which they set up their counter claim paying the requisite court-lee.

One further fact worthy of memo on is that the counter-part executed by the del end aegis lining in possession of the Plaintiff, he was eddied upon to produce the same into court. The de canals there- alter produced a certified copy of the said counter- part as the Plaintiff failed to'' produce the original and this is marked as Ex. D-I2. ''! he Plaintiff in this reply dated 25-11-1952, admitted die agreement dated 3-4-1951 and all the terms embodied, therein but averred that this contract did not substitute the previous contract but was only a continuation thereof and. as it is unstamped it is not admissible in evidence.

c lie further averred that he of the said contract but the Defendants nameless had committed breach for I to ay the installments regularly. The Plaintiff admit that the attachment was lifted within the stimulated time but he attributes it to the unwarned intervention of the Defendants for which he mot be made liable. He contended that the is of contract were fully carried out and no loss sustained by the Defendants. Thus, though the suit is mainly based on Ex. the averment of the parties and the case as and tried fully demonstrates that the reseeded on the footing, whether I he relief could ranted in view of the circumstances of Ex. is well by which admittedly the pecuniary lea of the Defendants was reduced. Evidently the and the contents of the document required bof as neither of them was in dispute. Acid copy of the counter-part in possession of Plaintiff was produced by the Defendants and it admitted by the Plaintiff, Issues settled point to the same effect. '' The parties joined issue and fought* on. the merits only on that score, Thus though the suit was based mainly on the agreement Ex. P-6 and its subsequent variance was not mentiored in. the plaint, the disputed part of it was put in issue, contested and the finding thereon was given. Under these circumstances, the question is, whether the court has power to grant relief as the circumstances of the case established would warrant. No doubt as a general rule, no Plaintiff is entitled to a relief for which there is no foundation in plaint.

But when on the pleadings and the issues and the evidence adduced, the relief is clear, this general rub does not apply because it is the duty of the court to grant relief as the circumstances of the ease would warrant even though it may not be asked for. In this particular case the relief claimed is not entirely different from what has been asked for. The relief claimed was for a higher sum ''on the basis of contract of sale but the subsequent variane,, of the particular terms of the contract admittedly affected the sum with the result that in view o! the said agreement, relief only for a lesser sum should be granted. There is considerable authority in support of the proposition that notwithstanding the alleged Haw in the frame of the suit, such relief can be awarded.

The primary duty of the courts after ail is to do justice. Utiles of procedure are intended only to advance the cause of justice rather than to impede the same. All that the court is to guard against is that no prejudice has been done to or no surprise has been sprung upon the other party, j When the suit was fought by the parties deliberately j and substantially upon the issues as framed by the j trial judge, there is nothing against law in deter-j mining their rights on that footing.

In ltamachandra v. Chinnubhai, AIR 1944 Bom 76 (J), it has been held that it would be open to a court to find in favour of a Plaintiff on a different'' cause of action provided it arose from undisputed facts and also provided that the Defendant was not: shut out from giving evidence which he might have given if the cause of action had been differently pleaded.

In Kasturi Devi v. Shripal Singh, AIR 1954 Pat 128 (K), wherein tire Plaintiff had applied for ejectment of the Defendant on the allegation that he a tenant and the Defendant set up a title in homes] and the court on the evidence came to the con-elusion that the story of the Defendant is false am that he is a licensee though not a tenant as allegei: by the Plaintiff, the Plaintiff was given a decree ejectment on the basis of title with the observation that the court should not drive the Plaintiff to file another suit for ejectment on the ground that the Defendant was a licencee.

In Sri Mahant Govindrao v. Sita Ram Kesho, ILR 21 All 53 (PC) (L), a declaratory decree granted on the facts plodded Kfitfacf Brtviwn the .useful an agreement to sell. It relates to the contract relating to forest produce between miles Nos. 26 to 30 only. According to its terms, the Defendants had to pay (a) Rs. 30,000/- within a period of five months from the date of receipt of the order from the P. W. D. towards try felling charg-s of the jungle and (b) the full amount of the valuatwi of the original nor even the proof of the same having regard to the, provisions of Section 58 of the Evidence Act is necessary.

Stress has been laid on the fact that there has been a breach of mandatory provisions1 of Order 7 Rule 14, Code of Civil Procedure, for the original is not produced along with the plaint; The object of this rule seems to be only that such documents as regards the genuineness of which suspicions might arise on account of subsequent production may be excluded. ''That is the reason why the only penalty imposed for such breach under Order 7 Rule 18, CPC is that such document shall not, without the leave of the court, be received in evidence on behalf of the partly at the hearing of the suit.

Evidently the document in question is not one of the kind for both its execution and its contents are undisputed. It is further argued that the documents filed by the Defendants can legally be made the basis only for their counter claim of defence against the claim for the Plaintiff but cannot in law be used for purposes of granting any relief to the Plaintiff. There seems to be no warrant for this proposition.

We cannot agree with the contention that a document produced by a party and admitted in evidence cannot be used for all purposes or the admissions of the parties in a suit will fail to have their full legal effect in so far as the rights and obligations of the parties to the suit are concerned.

It has also been urged that the document lining unstamped it can neither be admitted in evidence nor can it be acted upon under the mandatory provisions of the Stamp Act. It is curious that the party having himself got the copy (Ex. D-12) admitted in evidence for his purpose should question its admissibility on the ground that its original is not sufficiently stamped. The learned Counsel on the other side therefore argues that a party to the litigation must act consistently.

He cannot be allowed to play fast and loose and assume inconsistent positions. It is also argued that as Ex. D-7 can evidence a complete contract only in accompaniment of the impugned counterpart if that counterpart is hit by any legal provision Ex. D-7 cannot remain unaffected and thus the foundation for the defence or counter-claim of the Defendants becomes thoroughly shaken. We do not think both these arguments arc wholly void of force. But we see the contention of the Defendants is even otherwise untenable. As we have observed above,) the effect of Section 58 of the Evidence Act is that admission of the execution and the terms of the document renders proof of the document unnecessary.

It is so even though the document is inadmissible for want of sufficient stamp. In Mutiukaruppa Kaundan v. Rama Pillar, 3 MHCR 1 58(C)) when the suit of the Plaintiff was founded on the terms of the lease which was not properly stamped admission of the Defendant of the contents of the document executed by him was regarded as the primary evidence on which the Plaintiff was entitled to rely upon and get his relief. In this case the secondary/ evidence being brought on record and that been admitted, the question that the counter or the original thereof required stamp cannot in the way.

That is what is held also in Ponnuswami Chettiar Vs. Kailasam Chettiar, . In Meera Sahib v. Vei''katapathi Naidu AIR 1951 Mad 26 (Q) the copy of air agreement which was admittedly not stamped as required by law was admitted by the trial court without any objection. Objection regarding its admissibility was lor the time raised in the appellate court. The learned Judge overruled this objection that wlieu secondary evidence of the contents of the original document has, in fact been admitted, that cannot be called in question in the same suit on the ground that the original document was no properly stamped.

Reference was made to Venkateswara Iyer Vs. Ramanatha Dheekshitar, . Nallajerla Satyavati and Others Vs. Vijjapu Pallaya, , Nirode Basini Mitra Vs. Sital Chandra Ghatak, , and Noor Ahmad Vs. Irshad Ghaus . In Alagappa Chetti Vs. A.L.A.L.N. Narayanan Chettiar, , the learned Judge observed that the contention that the suit document is not duly stamped and therefore cannot be acted upon by this Court cannot prevail. The remarks of Rankin C. J., in Nirode Basini Mitra Vs. Sital Chandra Ghatak, may be quoted and'' they are as follows:

These stamp matters are really no concern of the parties and if the objection was taken at the time when the record was made up by the trial court, there it might be rejected, if not, the matter stopped there.

In the Madras Case, Venkala Reddi v. Hussain Setti AIR 1934 Mad 383 (W) the Advocate General sought to draw distinction -between the document which forms the foundation for the suit and also one which is admitted during the course of the evidence in support of ancillary point arising in the case but it was held that having regard to the language of the section there is no warrant for such distinction. In Mt. Bittan Bibi and Another Vs. Kuntu Lal and Another, the learned Judge remarked I fail to see what purpose it would serve to admit a document on record if no action is taken on the basis of that document". There was difference of opinion on this point between the learned Judges and the third Judge to whom the question was referred expressed his opinion that Section 36 prohibits an appellate court not only from challenging the admission of a document in evidence but also from questioning the ''acting upon'' of the document. Having regard to the trend of these authorities even if the copy of the instrument has been filed and admitted in evidence, the admissibility of the document on the question of insufficient stamp cannot be subsequently questioned in the same roeeeding.

The learned Counsel on the other side has referred us to cases in which it was held otherwise. It cannot be said that in some of the cases cited above this judicial opinion has not been considered. It seems to. be unnecessary for us to review these cases for the matter involved in this case, as already mentioned is somewhat different and much -.simpler. The Defendants have produced the counter-part which embodies all the terms of the contract. Besides they themselves have filed the copy, of the other counter part, which was admitted into Evidence by the court without objection from any Wrier and marked Ex. D-12.

The Defendants based their relief on both these documents. Thus when Ex. D-7 and the copy are filed and relied on by the Defendants claiming relief, the question that they should be used only for their purpose cannot merit favorable consideration. If both or any of them is treated as evidence it must be evidence in the case. The document must have its .full effect or no effect at all. It cannot be said that the document is admissible for purposes of one party and inadmissible for like purposes of the other party and that relief can. be granted on the basis thereof to one party and not to the other party though the relief be the same or similar.

Another circumstance that should weigh is that when it is admitted by the Defendants that the obligation under the contract as on 3-4-1951 a relation, to the contract of sale was only to the extent of Rs. 1,09,226/- and not Rs. 1,34,949-5-0, there does not appear to be any legal bar in decreeing the claim of the Plaintiff in relation'' to the contract of sale of forest timber on that admission itself subject of course to the finding on the plea that even that obligation has become either diminished or extinct on account of subsequent payment or because the Plaintiff as agreed did not get the attachment lifted within a week or reasonable time.

In our opinion, such a relief could be granted! Though the relief claimed was for a larger amount j and no amendment has been effected in the plaint by introducing the facts which curtail this amount. We are supported in this view by the Judgment of their Lordships of the Supreme Court it? AIR 195.1 SC 177 (N) which has been referred to above. The second objection raised by the learned Counsel for the Plaintiff therefore must prevail.

Our attention is invited to the fact that the Plaintiff has, subsequent to the suit, brought a separate suit on the basis of the said document which has been dismissed for default and the application for restoration in that connection is pending before that Court. It is argued that no relief can therefore be granted in that connection. In our opinion, a suit filed by way of abundant precaution subsequent to the outcome of the present suit, cannot be a bar to grant the relief which the circumstances of the present case warrant. The relief, as observed above, is only in relation to the purchase money due under the contract of sale entered into between the parties under Ex. P-6 and an oral agreement which have been partially varied so far as the quantum of the amount due is concerned. That relief can and ought to be given in this case.

Now, we come to the question of breach of a term of Ex. D-7 by the Plaintiff which has given occasion to a counter claim by the Defendants. We have stated above that Ex. D-7 provides also for the defaults of the parties. Paragraph 3 of the said agreement provides that if two consecutive instalments have not been paid the Defendant will be liable for any proceeding for collection of the amount which may be taken by the Plaintiff.

Paragraph 5 provides that as the timber which formed the subject matter of sale was under attachment, the Plaintiff is responsible for getting the attachment vacated within 1 weak, otherwise the by ability of the transaction will be on him. That them has been breach on both sides is beyond controversy. The Defendants did not pay the instalments regularly and the Plaintiff with all his best efforts could not get the attachment lifted within the stipulated period or at any time before 30-7-1951. So far as Manchcrial godown is concerned, the attachment was raised on 31-7-1951, and as regards the other godowns the release was effected on 1-10-1951.

It is at the same time clear that neither the Plaintiff had proceeded against the Defendants for the recovery of the amount duo in accordance with paragraph 3 of the contract nor did the Defendants seek to repudiate the contract on account of the default of the Plaintiff to get the: attachment vacated within eight days. Both the Parties have awaited the expiry of the term of lease and the transfer of timber that was rendered possible there alter.

The Plaintiff accepted-some payments and the Defendants in furtherance of their contract tried as best as they could to remove, and dispose of the timber which formed the subject matter of sale. When everything was over the parties have come to claim their mutual reliefs against the defaulting parties to the contract. The Defendants seem to contend that on account of default of the Plaintiff they are not liable for the amounts that they agreed to pay and they are also entitled to be compensated for the loss that they have sustained which is set at Rs. 75,000/- for which a counter claim has been filed.

The learned Counsel for the Plaintiff admits the right of the Defendants to be compensate''. d for loss if they had sustained any but denies their right of avoidance of contract either in law or in the particular circumstances of the ease. He contended that: in no circumstance could they be absolved from the liability to pay the stipulated amount. He further contends that they are not entitled to damages for all the serviceable timber bad been in fact removed and was availed us by them during the period of attachment and subsequent thereto and they have suffered no loss whatsoever which they can claim from the Plaintiff.

In this connection, we are referred to certain provisions of the Contract Act and the Sale of Goods Act. As it is virtually a transaction for sale of goods within the meaning of the term in Act III of 1930, the learned Counsel on behalf of the Plaintiff argued that the rights and liabilities of the parties under the contract should be regulated by that Act. The learned Counsel for the Defendant, on the other hand, has relied on Sections 54, 55, 62 and 73 of the Contract Act.

But it is plain that even under the provisions of the Contract Act, the Defendants can only claim compensation if they have sustained any loss. They cannot be absolved from the liability of payment of stipulated amount. Sections 54 and 55 of the Contract Act read thus:

When a contract consists of reciprocal promises, such that one of them cannot be performed, or that its performance cannot be claimed till the other has been performed and that the promissory of the promise last mentioned fails to perform It, such promissory cannot claim the performance of the reciprocal promise, and must make compensation to the other party to the contract for any loss which such other party may sustain by the nonperformance of the contract.

When a party to a contract promises to do a certain thing at or a before a specified time, or certain things at or before specified times, and fails-to do any such things at or before the specified time, the contract, or so much of it as has not been performed, become avoidable at the option of the promise, if the intention of the parties was that time should be of the essence of the contract.

The question is, whether failure to get the , attachment vacated within a week renders the per-formance of the contract nugatory and whether such a failure has put amend to the contract itself, j ft is common ground that the Plaintiff after Ex. P-6'' had delivered possession of the forest produce to the Defendants and had given a power-of- attorney to 2nd Defendant. The Defendants had removed a considerable portion of the same till the attachment was effected. This attachment, according to the contention of the Plaintiff was necessitated by failure of the Defendants to pay the amount due under the terms of the contract. But to all intents and purposes the possession remained vested with the Defendants. Forest authorities no doubt effected attachment in exercise of vendor''s lien only to ensure the payment of the amounts due. But there was already a regular out -of 10 per cent, ensured toward? the payment of the stipulated price from the plain riff''s bills in P. W. D. However at the instance o the Plaintiff, the said attachment was effected of die Defendants were strangers to the forest author cities and the forest was likely to be denuded before the payment is made. But it is significant to not that notwithstanding the attachment, the forest pre deco was permitted to be removed to some sab places and was also allowed to be disposed of will previous permission. As a matter of fact, the lore authorities made it clear that the produce should removed to safer places and that they will not 1 responsible for any loss which may be occasion! by fire or any other cause whether within hum: control or beyond it. It is not disputed and l documents on record clearly show that the Defendants notwithstanding the lapse of the stipulate period did stand ''by the contract and continued moval and the sale of the produce with the pension of the forest authorities. They did not risk the contract nor did they give any notice of the k to the Plaintiff. Obviously enough they did completely stop making payments. No doubt the gave a notice on 21-3-1952 but it was long after determination of the contractual period and ; after the Defendants had taken away all that t could and thus had reaped the fruits of the contra Defendant No. 1 in his evidence deposed that "if the attachment had been lifted earlier had no intention to demand compensation from Plaintiff for tire stolen or burnt property. . . . If tire attachment had been lifted within 2 o weeks instead of one week, we would not minded. When three months elapsed we felt the attachment was not going to be lifted soon that we are going to be put to great loss and therefore we gave notice to the Plaintiff in the s of letter."

But as pointed out above such notice has been: long after i.e., on 26-3-1952. Thus there doubt that the Defendants did not like to avoid contract notwithstanding the attachment and had availed of the benefits of the contract even though there was default on the part of the. Plaintiff. Under these circumstances, tire argument that time was the essence of the contract or that the condition of raising the attachment within a week did go to the root of the matter to give a just cause; for avoidance is without substance. The Defendants evidently waived their right to avoid the contract even if they had any such right. The learned Counsel on behalf of the Plaintiff has rightly argued that, whether under the provisions of the Contract Act or under the Sale of Goods Act the condition or the stipulation in relation to raising of the a lad mint having ! regard to particular circumstances of the case, can-In of be deemed to be essential to 1.1''ic main purpose I of the contract the breach whereof may ; rise to ; a right to treat the contract as repudiated. It is a warranty i.e., a simulation collateral the main ''purpose of the entreat and the breach; may give rise only; to a claim for dame but no'' i to avoidance of the performance of the promise pay flu; stipulated salt; [amount. In other words, the Defendant, can claim damages if they had sustained any but exeunt be ''absolved from the liability to pay (he amount agreed upon. In our opinion, (his argument should be given sheet to for in the eireunista''ecs of case that is the only right open to (he Defendants but not in defeasance of the right of the only lo recover the stipulated, amount.

After discussion of the evidence on the question of damages and the amount duo to the Plaintiffs, the judgment proceeds appeal of the Plaintiff is therefore allowed, the decree of the Court below is set aside and the claim to (In1 extent of Rs. 75,451/- Rs. 64,672.28 I. G. will, proportionate Costs of both the courts together with interest from the. date of the decree I from today to the date. Of realization at the rule of cent, per annum is decreed in favour of the Plaintiff against the Defendants. The appeal of the Defendants is dismissed. There will be: o order as io cos''s, in that appeal as the Plaintiff is granted in the connected appeal which relates to the same claim. K.S.B. judgment accordingly.