LexUNION OF INDIA versus SITA RAM JAISWAL
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979 UNION OF INDIA v. SITA RAM JAISWAL October 28, 1976 [A. N. RAY, c. J., M. H. BEG AND P. N. SHINGHAL, JJ.] Pleadings under-section 70 of the Contract Act (Act 9) 1872,--lngredients 111ecessary to be pleaded. P1"'ctice-No11-s11iting for want of uroper pleadings at the appellate swge by the Suprcn1e Court when parties went to trial and issues were raised and the .litigation went through the course of trial and appeal is not desirable. A CiviltProcedure Code (Act 5 of 1908) Order Vf r/w Order XIV, rnle 1(5) -Courts should not allow parties to go to trial i11 rhe absence of proper plead- C .ings. Words and phrases-"Restoration .. in Section 70 of the Contract Act, mean- .ing of. In a suit for the recovery of price of "Mac Tntyre Sleeves, "supplied to the .appellant, but alleged fo have been wrongfully rejected a[t.;r a considerable time, ·the respondent/plaintiff sought- to make the appellant/defendnnt lial'k to com- ·pensate by reasons of provisions containing in Section 70 of the Imlian Con- D ·tract Act. The trial Court found that the goods were accepted and it dismissed the suit on the reasoning that the appellant offered to restore the goods. But •On appeal, the Division Bench decreed the suit, not on the rrinciples of Section 10 of the Contract Act, but treating the case of the respondent to be "a claim -. for damages for wrongful rejection and for non-acceptance of goods on the ·footing of uninforceable contract for sale of goods". Dismissing the appeal by certificate the, Court, HELD : ( 1) The three ingredients to support the cause of action under- · section 70 of the Indian Contract Act are : First, the goods are to be delivered ·1awfu!ly or anything has to be done for another person lawfully. Second, the thing done orj the· goods delivered is so done or delivered "not intending to do ·so gratuitously". Third, the person to whom the goods are delivered "enjuys E ·the benefit thereof". It is only when the three ingredients are pleaded in the ·plaint that a cause of action is constituted under section 70 of the 1 nclia Con- tract Act. If any plaintiff pleads three ingredients and proves the three features F ·the defendant is then bound to[ make compensation in respect of or ta restore ·the things so done or delivered. [980 G-H, 981 A] (2) Courts should not allow the Jlarties to gel to trial in the absence of pro- per pleadings. In the instant case, the Court should not have allowed the res- ·pondem to go to trial with a claim under-section 70 of the Indian Contract Act. [981 B-C] . ·, (3) When parties went to trial and issues were raised on claims and the 'litigation also w~nt through the course of trial and appeal, non-suiting for want ·of proper pleadmgs at the appellate stage, by the Supreme Court is not desir- able. [981 C] ( 4) Restoration under-section 70 of the l ndian Contrnct Act does not mean Testoration of "goods by actual delivery". Intimation to take back the goods rejected evinces intention of restoration. [982 B-C] - G CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1762 of 68. H (Appeal from the Judgment and Decree dated 18-5·-1967 of the <Calcutta High Court in Appeal from Original Decree No. 183/56). 980 SUPREME COURT REPORTS [1977] 1 S.C.R. A G. L. Sanghi and Girish Chandra, for the Appellant. Purushottam Chatterjee and Sukumar Ghose, for the respondent. The Judgment of the Court was delivered by B RAY, C.J.-This appeal by certificate is from the judgment dated l l April 1968 of the High Court at Calcutta. The respondent filed this suit again'st the appellant in the High ~ourt at Calcutta and claimed Rs. 76,691-2-0 with interest or in the alterna- tive Rs. 78,204-8-4. The respondent's case in short is that the respon- dent delivered to the defendant appellant pursuant to severat orders C from time to time goods described as Mac lntyre Sleeves and other good's. The respondent alleged in the plaint that the appellant "wrong- fully purported to reject the Mac lntyre Sleeves" supplied by the res- pondent. The respondent further alleged that the rejection was un- lawful inasmuch as the rejection was after lapse of reasonable time. The respondent claimed the sum mentioned in the plaint as reasonable price of the goods. The alternative case of the respondent is that the plain- D tiff respondent wa·s entitled to the sum for supply of Mac lntyre Sleeves because the same were not supplied gratuitously. E F G H The app
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