ADAITYA DASS Vs. PREM CHAND MONDAL

JUDGEMENT

(1.) This rule was granted at the instance of the defendant who has been made liable for Rs. 37 and odd as damages for what has been called a breach of contract. The ease is somewhat peculiar. The plaintiff's allegation was that he asked the defendant to bring a Thakur to his house on a certain date for a festival. He had made arrangements for Bhog and feeding of guests. The defendant promised to bring the Thakur to his house on that date but failed to do so. Thereupon, the guests who had arrived did not partake of the food prepared by the plaintiff and went away. This caused loss to the plaintiff and the plaintiff, therefore, sued the defendant for damages The learned Small Cause Court Judge allowed half of the claim made by the plaintiff, because he thought that no satisfactory evidence had been given as to the amount of the loss incurred by him on account of the defendant's failure to bring the Thakur. It is not necessary for the purpose of.this case to decide who the real shebait of the Thakur was or who its owner was. The plaintiff's case is that one Jiban Das had the Thakur which he left in the custody of the defendant. The defendant's case seems to be that he is the owner of the Thakur and he being an old man, his nephew performs the Sheba and is in charge of the deity now. The Small Cause Court Judge has found that there was what is called a Chukti by the defendant to bring the Thakur to the plaintiffs house on that particular day He has also found that the plaintiff had invited number of guests who dispersed after sometime in the evening as the Thakur was not brought and no Bhog was offered. It may be taken as a fact that the learned Small Cause Court Judge intended to find that the guests did not partake of the food that was prepared by the plaintiff. The question is does the act of the defendant give rise to any legal liability for which he should be cast in damages or, in other words, was there any contract enforceable in law for breach of which the defendant would be liable for damages? It is contended on behalf of the petitioner that there was no consideration for the promise, which could be legally enforced and that being so, there was no breach of a legal contract for which the defendant could be made liable for damages. In support of his argument he put forward the familiar illustration of A asking B to dinner and the failure of B to attend, in which case there being no legal obligation on the part of B, there would not lie suit for damages for breach of the promise to come and dine.

(2.) The learned advocate for the plaintiff opposite party argues that there was consideration for the promise made by the defendant to bring the Thakur to his house because the plaintiff did invite a large number of persons to partake of the Bhog on the belief that the defendant would bring the Thakur to his house. He refers to the definition of consideration in the Contract Act in support of his contention On reading the definition it seems to me to be very difficult to say that the plaintiff who is in the position of the promisee did something at the desire of the promisor, i.e., the defendant petitioner in this case. There is nothing in the facts found which can support the contention that the defendant asked the plaintiff to invite a number of persons as a consideration for the promise of his taking the Thakur to his house. Reliance, again, is placed on behalf of the opposite party to the case of Kedar Nath Bhattacharji V/s. Gourie Mahomed [1886] 14 Cal. 64. in support of his argument. There, the defendant put down his name as a subscriber for the building of a Town Hall in Howrah. The learned Chief Justice, Sir Comer Petheram, in delivering the judgment of the Court observed at p. 66: It is clear that there are a great many subscriptions that cannot be recovered. A man for some reason or other puts his, name down for a subscription to some charitable object, for instance, but the amount of his subscription cannot be recovered from him because there is no consideration.

(3.) In that particular case, however, he found on the facts that there was consideration for the promise made by the subscriber to pay money for the building of the Town Hall. This case may be said to be akin to the facts of the case which I have now to deal with : but it does not cover the facts of the present case. If there had been any finding to the effect that the defendant promised to bring the Thakur to the plaintiff's house in consideration of the plaintiff's inviting a number of people to dinner, there might possibly have been a case for damages against the defendant if he had failed to keep his promise. But there is nothing in this case which may be construed as consideration for the promise which the defendant is said to have made to the plaintiff for bringing the Thakur to the plaintiff's house. Under these circumstances, in my opinion, the suit of the plaintiff was not maintainable. The rule is, accordingly made absolute and the suit of the plaintiff dismissed with costs in both the Courts. Hearing fee, one gold mohur.