(1.) Common question does arise in these two appeals which arise out of two suits filed by the Electricity Board for the recovery of unconnected minimum charges and later by amendment, for recovery of the actual amount spent by the Board for purpose of laying lines to the defendant herein. The said suits in the first instance were dismissed on the ground that the defendants are not liable to pay the amount sought for as there was frustration of contract within the meaning of Sec. 56 of the Contract Act. Against that at the appellate stage, an amendment of the plaint was sought for to the effect that the plaintiff may be allowed to seek for an alternative relief of recovering the actual amount spent on connecting the lines to the defendant premises, which was allowed, but the appellate court, however, confirmed the decision of the trial court in so far as the frustration of the contract was concerned, but remanded the matter back to the trial court in regard to the amendment plea. On remand, however, once again the plea of frustration was gone into, but was held against the plaintiff. So also in regard to the amendment relief it stood dismissed. On appeal however, the appellate court though held that the trial court on remand, ought not to have adjudicated on that aspect, nevertheless the appellate court went into that aspect and held once again, against the plaintiff. In so far as the second aspect is concerned, the appellate court confirmed the trial court's Judgment and decree. Hence these second appeals.
(2.) The propositions that were raised by the learned counsel for the appellant are : (1) It is competent for this court to entertain the issue in respect of frustration of contract and adjudicate as to whether the lower courts were right in holding against the plaintiff. This aspect was argued because the learned counsel for the respondents raised a preliminary objection to the effect that this court may not advert itself to the aspect of frustration of the contract held against the plaintiff by both the courts below in view of the fact that the matter once stood remanded after holding by the appellate court that there was frustration of contract and as against which if the appellant herein felt aggrieved ought to have preferred an appeal against the said order under Order 43, Rule 1 C. P. C, and having failed to do so, cannot now, be allowed to agitate the same. (2) The provisions enacted in Section 56 of the Contract Act are not applicable to the statutory contracts. The plaintiff being the State within the meaning of Article 12 of the Constitution and the contract being entered into under the Electricity Supply Act the contract is a statutory one and, therefore, in view of the decision of this Court reported in Surinam Sattiah vs. State the decisions of the lower courts are erroneous and contrary to law and the appellant is entitled to recover the amounts whether there is frustration of contract or not.
(3.) In regard to the first one the position is now fairly covered by two decisions of the Supreme Court reported in Jasraj vs. Hemraj and Sita Ram vs. Sukhnandi. It has been held in the latter case which is more direct on the point as under :