The main legal point established in the judgment is that Section 45 of the Indian Contract Act, 1872, only applies to the performance of the contract and does not extend to cases seeking damages for breach of contract. Additionally, the court emphasized that the order in favor of a deceased person cannot be considered a nullity.

Prakash Tatia, J.-The writ petition has not yet been admitted and the petitioner has submitted an application for amendment of the writ petition to add certain new grounds.

2. Looking to the stage at which the application has been moved and looking to the fact that petitioner wants to take certain new grounds only, the application for amendment of the writ petition is allowed. The amended writ petition has already been filed by the petitioner is taken on record.

3. Heard learned Counsel for the petitioner.

4. According to learned Counsel for the petitioner, Ramnarayan and Udaram both submitted a complaint before the District Consumer Forum, Bikaner on the basis of joint contract with the petitioner alleging that the petitioner agreed to dig a well for Ramnarayan and Udaram. It is alleged by the said Ramnarayan and Udaram that the petitioner assured that he will show the discharge of the water to the extent of 10,000 galleon per hour for 16 hours and, therefore, the complaints took a loan for instating the tube-well and gave the contract to the petitioner to dig the tube-well. The complainants found that the well is not working, therefore, they obtained expert report, which also confirmed that the tube-well is not according to the assurance given by the petitioner and, therefore, the complainants Ramnarayan and Udaram entitled for the damages from the petitioner. The complainants claim petition was contested by the present petitioner non-applicant on various grounds and the District Consumer Forum by order dated 10th July, 1985 rejected the complainants complaint.

5. The complainants preferred appeal jointly against the petitioner non-complainant before the present, State Consumer Disputes Redressal Commission Rajasthan, Jaipur (for short State Commission). The State Commission vide order dated 11.03.2002 allowed the appeal of Ramnarayan and Udaram. The petitioner aggrieved against the order of the State Commission, Jaipur dated 11.03.2002 preferred a revision petition before the National Consumer Disputes Redressal Commission, New Delhi and in that revision petition, the present petitioner-non-complainant submitted an application under Order 22 Rules 3, 9 and 11 and under Order 41 Rule 5 CPC stating therein that during the pendency of the appeal before the State Commission, the complainant Ramnarayan died, but no application has been submitted by the surviving appellant for bringing on record the legal representatives of the deceased Ramnarayan and, therefore, in fact, the appeal abated before its decision and the order passed by the State Commission finding petitioner liable for the amount is nullity.

6. The National Consumer Disputes Redressal Commission, New Delhi vide order dated 06.02.2003 after rejecting the petitioners objection about the abatement of the appeal before the State Commission, rejected the revision petition of the petitioner on merit.

7. After having decision from the appellate Court and the revisional forum when the complainant Udaram did not receive benefit under the order from the petitioner, he submitted an application under Section 25/27 of the Consumer Protection Act, 1986 wherein an objection has been submitted by the petitioner raising same objections that since Ramnarayan died during the pendency of the appeal before the State Commission, therefore, the order passed by the State Commission is nullity and cannot be enforced against the petitioner. That objection was rejected by the District Consumer Disputes Redressal Forum, Bikaner vide order dated 20.10.2004. Against this order, the petitioner has preferred this writ petition.

8. According to learned Counsel for the petitioner as per Section 45 of the Indian Contract Act, 1872 where there is a joint promise then unless a contrary intention appears from the contract, the right to claim performance survives till the life of the contracting parties, who jointly entered into contract. It is submitted that after the death of one of the joint