J.L.KILAM J. - (1.)THIS is a first appeal directed against a judgment and decree of the learned Sub -judge Srinagar Mr. N. K. Hak dated 28th June, 1956 by which he has dismissed the plaintiffs suit brought for the recovery of a sum of Rs. 2712/10/ - from defendants Nos. 1 and 2. It appears that defendant No. 1 was granted a stipend by the Kashmir Government for receiving training in Electrical Engineering at the Aligarh Muslim University in the year 1944. A sum of Rs. 2712/10/ - is alleged to have been received by Mohd. Khalil as stipend from the Government. Agreement was executed by Mohd. KhaJil and defendant 2 stood surety for the due performance of the terms of the agreement. The plaintiffs case is that Mobd. Khalil was bound according to the terms of the agreement to serve the Kashmir Government for a period of seven years. Defendant 1 it is further averred did not serve the Government for the aforesaid period, nor did he refund the sum of Rs. 2712/10/ - which was received by him as stipend. Hence the suit.
(2.)IT appears that after successfully completing his training defendant 1 came to Kashmir and was appointed as temporary Supervisor in Sindh division on a salary of Rs. 150 -10 -250. Later on he was again appointed as a temporary hand as Headquarter Assistant in the grade of Rs. 200 -25 -400. It is further alleged that Mohd. Khalil defendant 1 worked as temporary hand upto 20 -6 -05 when he proceeded on ten days casual leave which was extended by 15 days and later on by two months and again by 2 1/2 months, but on the termination of his leave Mohd. Khalil did not turn up to join his duties with the result that he was discharged from service for unauthorized absence. About defendant 1 the plaintiffs allegation is that he went over to Pakistan. Ex parte proceedings were taken against him.
(3.)THE case has been contested by defendant 2 who had stood surety on behalf of defendant 1 for the due performance of the contract. Defendant 2 has defended the suit on various grounds, one such ground being that the agreement is unenforceable at law. He has further averred in his written statement that the defendants have not violated any terms of the agreement and that the plaintiff has no cause of action against him. He has also denied knowledge about the whereabouts of defendant 1 and has added that the Government never called defendant 1 to serve it for a period of seven years and that the defendant 1 had never refused to serve
The learned trial court framed the following issues : - 1. Was defendant 1 appointed to a post as per terms of the agreement? O. P. plaintiff. 2. In case issue No. 1 is proved, did the defendant 1 give up that post? O. P. plaintiff. 3. Has the defendant committed any breach of the contract and how? O. P. plaintiff. 4. Is the contract unconscionable and legally unenforceable? O. P. defendant 2.