J&K GOVT Vs. MUZAFFAR SHAH

JUDGEMENT

(1.) THIS appeal arises out of a suit filed by the State against a student -scholar and his surety. The Plaintiff -Government advanced certain amounts to the first defendant to finance his studies in the King Edward Medical College at Lahore to qualify himself as a graduate in medicine. The course of studies was five years, and the Government agreed to pay the scholar at a stipulated rate every month till he completed the five yearsâ„¢ course of studies in medicine at Lahore. The scholar in his turn undertook to apply himself diligently to his studies, complete his course within the prescribed time of five years, to return to the State immediately on completion of the course of his studies and to serve the State as a doctor for a term of seven years, if the Government so required him to do. The father of the student stood surety for the due performance by the student of the terms and conditions of the agreement. In case the student failed to satisfy the conditions of the contract, he undertook to repay the Government the sums of money given to him by the Government in connection with his studies in medicine. The surety also executed a written undertaking to the same effect. The agreement of the principal debtor and the surety is dated 26 -4 -1944. There was a supplementary agreement of a later date by which the amount to be paid to the student was enhanced by 25%..... The plaintiff Government paid the student according to the stipulated rate till some time in the year 1947. Thereafter no payments were made. However, the student pursued his studies and completed his course and took his degree some time in the year 1948 but instead of returning to the State he stayed in Pakistan and took up Government service there. The State, therefore, brought a suit for the amount of Rs. 7375 -4 -0 which was alleged to have been expended by them on the studies of the first defendant. They claim a decree for this amount against defendant No.1 and his surety.

(2.) BOTH the defendants resisted the suit. The important points taken by them in defence were (1) that the plaintiff was guilty of breach of contract in not having made advances of money to the first defendant till the termination of his five -year course of studies and (2) that it became impossible for the student to return to the State of Jammu and Kashmir after the completion of his course of studies due to division of India and the creation of the State of Pakistan and consequent difficulty and hindrance for a person residing in Pakistan to come to this State in the year 1948. The defendants, therefore, set up that the contract became incapable of performance and that they were as a result discharged from their obligation under it. The other plea was that the amount claimed by the plaintiff is excessive and that only a much smaller amount of money was expended by the Government on the student for his studies.

(3.) THE Sub -Judge Srinagar, who tried the suit, found that only a sum of Rs.6,675 was paid by the plaintiff to the first defendant and that the Government was unable to pay money to the first defendant for whole period of five years because of the creation of the State of Pakistan and the consequent difficulties and that the first defendant was unable to come to the State of J & K in 1948 for the same reasons. In other words, he held that there was frustration of contract within the meaning of Section 56 of the Contract Act. On the question of quantum of the amount he recorded a firm finding that only a sum of Rs.6,675 has been paid by the plaintiff to the first defendant that he cannot be liable for any larger amount. He, however, dismissed the suit on the ground that the contract became void due to frustration and that no decree can be based upon such a contract. The aggrieved plaintiff has now come up in appeal to this court against this decision of the lower court.