Judgement

KUMARAYYA, J. :- It is intended by this Judgment to dispose of both the appeals Nos. 121 and 99 of 1954 arising out of a single judgment dated 10-7-1954 passed 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. 121/ 1954 is preferred by the defendants, Yerakula Shankarayya, timber merchant of Warrangal and Muhamed Mohasin Khan, timber merchant of Chinnur against the dismissal of their counter-claims.

2. 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 the 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 25 on the-same terms as embodied in Ex. P-6 on 10-5-1950 to the same defendants. 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. W. D. 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 the 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 the original amount as fixed was reduced and facility for 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 last gave notice to the plaintiff claiming damages. 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.

3. 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 Rs. 75,000/- as damages for the loss they sustained due to the plaintiffs non-compliance with the terms of the agreement Ex. D-7 dated 3-4-1951. The plaintiffs contention, on the contrary, was that Ex. D-7 which was not properly stamped was firstly inadmissible in evidence and secondly, did not operate as novation 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 best 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 loss which they can legitimately claim from the plaintiff.

4. 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 in vain for the amendment of his plaint by introducing the facts relating to subsequent agreement relied upon by the defendants; but neither such request nor the argument that on the admission of the defendants themselves the plaintiff could be granted some relief found favour with the learned Judge who dismissed the suit with costs against the defendants. Aggrieved by this, plaintiff has come in appeal and the defendants too have preferred their appeal against the dismissal of their counter-claim.

5. Sri Ramaswami Aiyangar on behalf of the appellant-plaintiff advanced his three-fold argument in support of his contention that the suit as instituted ought to have been decreed in favour of the plaintiff. His main contention is that Ex. D-7 neither in fact nor in law constitutes novation. The argument is that it was not the intention of the parties that Ex. D-7 shall extinguish all rights under the previous contract nor can it be said that this document is inconsistent, contradictory and cannot co-exist with the original contract.

It is pointed out that this is not a self-contained document in relation to all the terms and obligations of the parties to the contract of sale. It cannot therefore be regarded as a new and independent agreement substituting the former contract. The next argument is that even on the plea taken up by the defendants on the basis of Ex. D-7 which is admitted by the plaintiff, the relief could be granted to the plaintiff and it was incumbent on the court to grant the relief which the circumstances of the case demand and the law permits.

The 3rd argument is that there was no justification for rejecting the petition for amendment of the plaint when questions of prejudice or surprise could not arise at all. One other argument advanced by the learned advocate was that the defendants have not maintained the integrity of the document Ex. D-7 and since they are guilty of alteration in relation to one of its maternal terms, the document must be thrown out of evidence with the result that the plaintiffs suit based on Ex. P-6 ought to have been decreed.

6. Admittedly these are the only main controversial points involved in this appeal. The first point therefore for our consideration is, whether Ex. D-7 extinguishes all rights and liabilities under the old contract to form the sole basis for an action against the defendants, in other words, whether Ex. D-7 is a novation. The term novation implies that there being a contract in existence some new contract has been substituted for resulting in discharge of the old contract. This term appears in the marginal note to section 62 of the Indian Contract Act which reads as below:-

Effect of novation recession and alteration of contract. "If the parties to a contract agree to substitute a new contract for it or to rescind or alter if the original contract need not be performed."

Substitution of a new contact is the core of novation. Its essential feature is that a right under the original contract is relinquished and new rights referable to new contract are created. The substituted contract therefore must be a Valid and enforceable contract to be effective as novation. If the new agreement or contract suffers from legal flaw such as want of registration, stamps etc., on account of which it becomes unenforceable, the original contract will not be extinguished and the rights and liabilities of the parties will be determined on that basis. The learned counsel therefore besides taking a plea of insufficiency of stamp has also raised a point that in as much as Ex. D-7 has been materially altered by the insertion of a letter NA formed by a "Dot and shosha" which determines the liability of one of the parties, the document becomes unenforceable and cannot stand in the way of the plaintiffs claim based on Ex. P-6. In order to appreciate this argument, it is necessary to quote the translated relevant passage in which the alteration in question is alleged to have been effected which is as below :

"As a result of this document the liability for the amount which can be recovered will not be on Mr. Yerukula Sankarayya, son of Mr. Narasayya of Warrangal."

7. The word not represented by Na (a dot and shosha to the word "Hogi") appears on the face of it to be a subsequent alteration for it is common ground that according to the terms of the contract as originally entered into, the liability was on the person stated. This alteration is no doubt material and if effected during the period when the document was in the defendants custody, certainly entails the penalty of being thrown out of evidence. It is well settled that a party who has the custody of any instrument for his benefit is bound to preserve it in its original state.

If any alteration is made which affects the substance of the contract expressed in the document, it will indeed be material and the party from whose custody it is produced cannot rely on it either as plaintiff or as defendant. But the question, is, whether this alteration has been effected while it was in the custody of the defendant or his agent. It is admitted by the learned counsel for the plaintiff that even in the counter-part of Ex. D-7 which is in the custody of the plaintiff this Na appears.

In the absence of any reliable evidence to the contrary, this only goes to show that the alteration in question is not the act of the defendant or his agent or of any party. It may be the mistake of the scribe himself though he might have disowned the same in his deposition. The same mistake in both the counter parts must, in the circumstances of the case, point to the characteristic mistake or mode of writing of the writer himself rather than to the design of any particular party. Evidently the document in possession of the plaintiff could not and did not come into the possession of the defendant so that its integrity may be violated. At least that is not what is suggested or established by the material on record. The plea of material alteration therefore becomes devoid of force.

8. It is next argued that there could be no novation in law after breach of contract for upon a breach of contract it will be only adjustment of remedial rights flowing from the breach rather than substitution of any subsisting contract between the parties. It may be recalled that the defendants had failed to pay the amounts due to the plaintiff under Ex. P-6 and the oral agreement with the result that the plaintiff got an attachment effected. This eventually led to settlement of their differences and Ex. D-7 came into being as a result.

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 Naskar, ILR 15 Cal 319 (A), and New Standard Bank Ltd. v. Probhoduchendra, AIR 1942 Cal 87 (B), 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 ILR 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 AIR 1942 Cal 87 (B), the 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 Rang 189 (C). But the Madras High Court has taken a different view. In Ramiah Bhagavatar v. Somasi Ambalam, 29 Mad LJ 125 : (AIR 1916 Mad 823) (D), Seshagiri Aiyar. J., no doubt agreed with the 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 held bound by the terms of his agreement." In N. M. Firm v. Theperumal Chetty, ILR 45 Mad 180: (AIR 1922 Mad 314) (E), a Divisional Bench of the Madras High Court dissented from the view of the Calcutta High Court and took the same view as Kumaraswamy Sastri J. In Ramnath v. Mannulal, ILR 45 All 472 : (AIR 1923 All 518) (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 Subbarayudu v. State, (S) AIR 1955 Andhra 87 (FB) (G), 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 subsequent contract in our opinion is not a novation at all.

9. 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 valuation of the jungle as fixed by the P. W. D. in such manner and at such time as the P. W. D., demands from the first party. Another term of the contract is that "such wood as is not useful to the second party shall be left there at the site for the first party and shall not be sold by the defendants". There was also a stipulation by which plaintiff was made responsible for any dispute that may arise 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 and an important clause was that the plaintiff will be responsible for getting the attachment lifted within one week failing which the liabilities for the transaction will rest with him. Thus it is clear that as a result of Ex. D-7 the amount in relation to the felling 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 does not cover all the terms of Ex. P-6 nor is there any reference 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.

10. The question therefore is, whether Ex. D-7 is in fact a novation. As observed above, a novation is a substitution of the contract and not a mere variation of some of its terms. It should rescind or extinguish the previous contract. As laid down in Gilbert v. Hall, (1831) 1 LJ Ch l5 (H), 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 contract or not is always a question of fact depending also on the intention of the parties.

The intention of the parties no doubt may be inferred from the contents of the document, but in order to gather their intention one should look to the substance of the matter and not to the mere form. The same was the view expressed by the Calcutta High Court in Kshetranath v. Harsukdas Balakissendas, AIR 1927 Cal 538 (I). Looking at the terms of the contract from this angle, we feel it difficult 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 (III 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) of the said section reads as follows :

"Where by contract of sale, the seller purports 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 timber lying in the forest area and also future goods therein subject to the Forest Rules as stated in Ex. D-34, the original contract of sale executed between the Forest Department and the plaintiff, is no doubt a contract of sale within the meaning of the Indian Sale of Goods Act and also the Hyderabad Sale of Goods Act (Act VII of 1351, F.). By the time Ex. D-7 was entered into, not only the defendants were put in possession of the subject matter of sale but also that they had removed a substantial portion of such goods to their destination and even paid considerable amount.

It cannot therefore be said that Ex. D-7 is a recission of the previous contract of sale. At the most it is an agreement Varying the quantum of purchase money in view of subsequent circumstances. 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 the first party, but now it has been clearly determined. There is no variation as to the term relating to the unservicable wood to be left for the use of the plaintiff. 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-attorney affected. As a matter of fact this document does not bear reference to any of these even though they are some of the important terms of contract of sale. For these, one has even now to look to Ex. P-6 notwithstanding Ex. D-7. In this way, Exs. P-6 and D-7 are, both put together, one complete subsisting contract. The latter supplements rather than supplants or substitutes the former. The plea of novation therefore must fail; 11. 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 5 of the written statement dated 16-9-1952 have averred that by virtue of a settlement arrived at between the parties, on 3-4-51 reduced to writing in two counter parts, one signed by the plaintiff himself (Ex. D-7) and the other signed by the defendants which is in possession of the plaintiff, the total liability of the defendants is reduced and fixed at Rs. 1,09,226/-.

It was also stated that the facility of instalment 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 held himself liable for the loss sustained in the contract. The defendants further stated that the plaintiff did not comply with the particular term of the contract as a result of which the defendants sustained loss for which they set up their counter claim paying the requisite court-fee.

One further fact worthy of mention is that the counter-part executed by the defendants being in possession of the plaintiff, he was called upon to produce the same into court. The defendants thereafter produced a certified copy of the said counterpart as the plaintiff failed to produce the original and this is marked as Ex. D-12. The plaintiff in his reply dated 25-11-1952, admitted the 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.

He further averred that he is not guilty of breach of the said contract but the defendants themselves had committed breach for they failed to pay the instalments regularly. The plaintiff admitted that the attachment was not lifted within the stipulated time but he attributes it to the unwarranted intervention of the defendants for which he cannot be made liable. He contended that the terms of contract were fully carried out and no loss was sustained by the defendants.

Thus, though the suit is mainly based on Ex. P-6, the averment of the parties and the case as defended and tried fully demonstrates that the case proceeded on the footing, whether the relief could be granted in view of the circumstances of Ex. D-7 as well by which admittedly the pecuniary liability of the defendants was reduced. Evidently the execution and the contents of the document required no proof as neither of them was in dispute. A certified copy of the counter-part in possession of the plaintiff was produced by the defendants and it was admitted by the plaintiff.

In this way, even the contents of the alleged counter-part were beyond all controversy. The only matter seriously contested related to the legal effect of the document and the loss if any, sustained by the defendants on account of continued attachment. The averments in the pleadings and the 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 mentioned 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 the plaint.

But when on the pleadings and the issues and the evidence adduced, the relief is clear, this general rule does not apply because it is the duty of the court to grant relief as the circumstances of the case 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 variance of the particular terms of the contract admittedly affected the sum with the result that in view of 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 flaw in the frame of the suit, such relief can be awarded.

12. The primary duty of the courts after all, is to do justice. Rules 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. When the suit was fought by the parties deliberately and substantially upon the issues as framed by the trial judge, there is nothing against law in determining their rights on that footing.

In Ramachandra 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 the plaintiff had applied for ejectment of the defendant on the allegation that he is a tenant and the defendant set up a title in himself and the court on the evidence came to the conclusion that the story of the defendant is false and that he is a licencee though not a tenant as alleged by the plaintiff, the plaintiff was given a decree for 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 was granted on the facts pleaded and proved even though such relief was net specifically prayed for. In Sagarmull Nathany v. Galstaun, AIR 1930 PC 205: 124 Ind Cas 887 (M), there was a variance between the plaint and the case alleged at the trial. Their Lordships observed that in considering the variance between the pleading and the case, the Courts should not look merely to the wording of the plaint but to the issues which were settled for trial and the manner in which the case was deliberately fought out by both the parties in the trial court and the relief should be regulated accordingly.

In Firm Sriniwas Ramkumar v. Mahabeer Prasad, AIR 1951 SC 177 (N), where a suit was brought for specific performance of an agreement to sell the house the defendant denied the agreement but set up a case of a loan which he did substantiate, their Lordships allowing the appeal passed a decree for the recovery of loan in favour of the plaintiff notwithstanding his failure to prove the contract which formed the basis of the suit. The observations of their Lordships are to the following effect :

"The plaintiff may rely upon different rights alternatively and there is nothing in the Code of Civil Procedure to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question however arises whether, in the absence of such alternative case in the plaint it is open to the court to give him relief on that basis. The rule undoubtedly is that the Court cannot grant relief to the plaintiff on a case for which there was no foundation in die pleadings and which the other side was not called upon or had no opportunity to meet.

But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff on the defendants own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit."

Though the plaintiff might not have expressly claimed on the basis of agreement dated 3-4-1951 which reduced the monetary obligation under Ex. P-6, when the defendants themselves in defence had set up the said agreement and the issues were raised and the case was tried on that basis, both on principles and authority, relief cannot be denied to the plaintiff as warranted by the merits of the case.

13. It is alleged on behalf of the defendants that since the plaintiff has failed to produce the document (another counter-part of Ex. D-7) along with the plaint or at any time during the trial, no relief can be granted on the simple ground that the document which should form the basis of the suit is not before the court. This objection fails to take into consideration that the defendants who have set up their claim, have filed the counter-part (Ex. D-7) and to see that the other counter part is brought on record, they, after due notice to the plaintiff have filed the copy thereof because both counterparts evidence one complete contract which should form the basis of their claim.

This copy is not denied. As a matter of fact both Ex, D-7 and the said copy have been admitted in to with the result that neither the production of the original nor even the proof of the same having regard to the provisions of section 58 of the Evidence Act is necessary.

14. Stress has been laid on the fact that there has been a breach of mandatory provisions of Order 7 Rule 14, C. P. C., 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, C. P. C., 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 or 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.

15. It has also been urged that the document being 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 are 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 Muttukaruppa Kaundan v. Rama Pillai, 3 Mad HCR 158 (O)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 having been admitted, the question that the counter-part or the original thereof required stamp cannot stand in the way. That is what is held also in Ponnu Swami Chettiar v. Kailasam Chettiar, AIR 1947 Mad 422 (P). In Meera Sahib v. Venkatapathi Naidu AIR 1951 Mad 326 (Q) the copy of an agreement which was admittedly not stamped as required by law was admitted by the trial court without any objection. Objection regarding its admissibility was for the time raised in the appellate court. The learned Judge overruled this objection that when 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 orignial document was not properly stamped.

Reference was made to Venkateswara v. Ramanatha AIR 1929 Mad 622 (R), Satyavati v. Pallaya AIR 1937 Mad 431 (S), Nirode Basini v. Sithalchandra AIR 1930 Cal 577 (1) (T), and Noor Ahmad v. Irshad Ghaus AIR 1933 All 821 (U). In Alagappa Chetti v. Narayanan AIR 1932 Mad 765 (V), 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 AIR 1930 Cal 577(1) (T) 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, Venkata 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 v. Kuntu Lal AIR 1952 All 996 (X) 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 proceeding.

16. 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 themselves have filed the copy, of the other counter part, which was admitted into evidence by the court without objection from any quarter 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 defendant claiming relief, the question that they should be used only for their purpose cannot merit favourable 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 in relation to the contract of sale was only to the extent of Rs. 1,09,226/- and not Rs. l,34,949-5-0 there does not appear to be any legal bar in decreeing the claim of the plaintiff in relation to decontract 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 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 in AIR 1951 SC 177 (N) which has been referred to above. The second objection raised by the learned counsel for the plaintiff therefore must prevail.

17. 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

18. Now, we come to the question 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 provide also for the defaults of the parties. Paragraph 3 of the said agreement provides that if two connective instalments have not been paid the defendants will be liable for any proceeding for collection of the amount which may be taken by the

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 week, otherwise ability of the transaction will be on him. That there 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 Mancherial 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 due 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 thereafter.

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 compensated 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 case. 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 had been in fact removed and was availed of by them during the period of attachment and subsequent thereto and they have suffered no loss whatsoever which they can claim from the plaintiff.

19. 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 Ss. 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. Ss. 54 and 55 of the Contract Act read thus :

54. 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 promisor of the promise last mentioned fails to perform it, such promisor cannot claim the performance of die 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.

55. When a party to a contract promises to do a certain thing at or 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 voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract."

20. The question is, whether failure to get the attachment vacated within a week renders the performance of the contract nugatory and whether such a failure has put an end to the contract itself. It 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 vendors lien only to ensure the payment of the amounts due. But there was already a regular out of 10 per cent. ensured towards the payment of the stipulated price from the plaintiffs bills in P. W. D. However at the instance of the plaintiff, the said attachment was effected for the defendants were strangers to the forest authorities and the forest was likely to be denuded before the payment is made. But it is significant to note that notwithstanding the attachment, the forest produce was permitted to be removed to some safer places and was also allowed to be disposed of with previous permission. As a matter of fact, the forest authorities made it clear that the produce should be removed to safer places and that they will not be responsible for any loss which may be occasioned by fire or any other cause whether within human control or beyond it. It is not disputed and the documents on record clearly show that the defendants notwithstanding the lapse of the stipulated period did stand by the contract and continued removal and the sale of the produce with the permission of the forest authorities. They did not rescind the contract nor did they give any notice of the kind to the plaintiff. Obviously enough they did not completely stop making payments. No doubt they gave a notice on 21-3-1952 but it was long after the determination of the contractual period and also after the defendants had taken away all that they could and thus had reaped the fruits of the contract. Defendant No. 1 in his evidence deposed that

"if the attachment had been lifted earlier we had no intention to demand compensation from the plaintiff for the stolen or burnt property....... If the attachment had been lifted within 2 or 3 weeks instead of one week, we would not have minded. When three months elapsed we felt that the attachment was not going to be lifted soon and that we are going to be put to great loss and that therefore we gave notice to the plaintiff in the shape of letter."

But as pointed out above such notice has been given. long after i.e., on 26-3-1952. Thus there is no I doubt that the defendants did not like to avoid the 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, the 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 attachment having regard to particular circumstances of the case cannot be deemed to be essential to the main purpose of the contract the breach whereof may give rise to a right to treat the contract as repudiated. It is a warranty i.e., a stipulation collateral to the main purpose of the contract and the breach of the same may give rise only to a claim for damages but not to avoidance of the performance of the promise of the defendants viz: to pay the stipulated sale amount. In other words, the defendants can claim damages if they had sustained any but cannot be absolved from the liability to pay the amount agreed upon. In our opinion, this argument should be given effect to for in the circumstances of the case that is the only right open to the defendants but not in defeasance of the right of the plaintiff to recover the stipulated amount.

21. (After discussion of the evidence on the question of damages and the amount due to the plaintiffs, the judgment proceeds). The appeal of the plaintiff is therefore allowed, the decree of the Court below is set aside and the claim to the extent of Rs. 75,451/- Rs. 64,672.28 I. G. with proportionate costs of both the Courts together with interest from the date of the decree i.e., from today to the date of realisation at the rate of 3 per cent, per annum is decreed in favour of the plaintiff against the defendants. The appeal of the defendants is dismissed. There will be no order as to costs, in that appeal as the plaintiff is granted costs in the connected appeal which relates to the same claim.

Judgment accordingly.