A contract is not wholly impossible of performance if a portion of its subject-matter has ceased to exist at the time of performance.

Kapur, J.

1. This is a rule against a judgment and decree of Mr. Mani Ram Khanna, Small Cause Court Judge, Amritsar, holding that the breach of the contract was by the plaintiff and dismissing the suit for the recovery of earnest money.

2. On the 22nd of January 1947, the plaintiff, Ruldu Ram agreed to purchase some property consisting of a shop, a staircase, a half share in a house and a khola for a sum of Rs. 12,000/- and Rs. 500/- were paid as earnest money. The sale was to be completed by the 7th of March 1947. This being a contract for sale of immovable property, the time was not the essence of the contract. On the 6th of March 1947, the shop was burnt down in communal riots.

3. The plaintiff brought the suit on the 21st of June 1950 i.e., three years after the date of the contract for the recovery of Rs. 500/- which he had paid as earnest money. The learned Judge has held that the breach was by the plaintiff.

4. Mr. Indar Singh Karwal submits that the property had been destroyed on the 6th of March 1947, and as ha had a right to complete the contract by the 7th of March 1947, he cannot be said to have been guilty of the breach of the contract. I am unable to agree with this proposition. The shop no doubt was burnt on that day and it is in the evidence of the plaintiff as witness that he was not ready to get the sale deed executed, after the shop was burnt down. In Section 13 of the Specific Relief Act it is provided:

"Notwithstanding anything contained in Section 56 of the Indian Contract Act, a contract is not wholly impossible of performance because a portion of its subject-matter, existing at its date, has ceased to exist at the time of the performance. ILLUSTRATIONS

(a) A contracts to sell a house to B for a lakh of rupees. The day after the contract is made, the house is destroyed by a cyclone. B may be compelled to perform his part of the contract" by paying the purchase money."

According to this illustration, if any property, which forms the subject-matter of a contract of sale, is destroyed, the contract can still be specifically performed at the instance of either of the parties. In this case, both on questions of law as well as on facts, I find that it was the plaintiff who was not prepared to get the sale deed executed. The breach has therefore rightly been held to be on the part of the plaintiff.

5 Mr. Puri has further submitted that the principle "the loss lies where it falls" applies to this case. It appears that even in England this principle has not been followed: see Fibrosa Spolka Akcyjna V/s. Faibairn Lawson Combe Harbour, Ltd., 1943 A.C. 32. It is not necessary to go into this question in view of the statutory provisions of the Specific Relief Act.

6. I therefore dismiss this petition for revision and discharge the rule. The respondent will have his costs in this Court and the Court below. Counsels fee two G.Ms. (Rs. 32/-).