KANNANKARA KURIA KOSA THOMAS Vs. SHRIRAM SAW MILLS

JUDGEMENT

(1.) Defendant No. 1 in Title Suit No. 62 of 1990 on the file of the Civil Judge (Senior Division), Nayagarh, has preferred this revision under S. 115 of the Code of Civil Procedure (for short, 'CPC') challenging the order dated 18-8-1995 whereby the plaintiff's prayer for amendment of pleading under Order 6, Rule 17, CPC has been allowed.M/s. Shriram Saw Mills (hereinafter referred to as 'plaintiff') is a registered partnership firm of which Sila Rajeswar Rao is the Managing Partner. It has filed the aforesaid suit against the petitioner as well as Government of Orissa and its functionaries (hereinafter referred to as 'defendant's) for a decree for specific performance of contract and other ancillary reliefs.

(2.) Plaintiff's case, in brief, is this :Defendant No. 1 is the owner of the suit land measuring Ac. 20.53 dec., more specifically described in the schedule of the plaint over which there has been a forest growth. In order to have rubber plantations on the suit land he made an application to the Divisional Forest Officer, Nayagarh, for according necessary permission to remove the timbers standing thereon. Since he is living in Baharain, a Gulf country, it could not be possible on his part to pursue the Forest and Revenue authorities in the matter. He, therefore, executed a power-of-attorney in favour of the Managing Partner of the plaintiff on 3-4-1984 to attend to the work of demarcation, enumeration, cutting and felling of trees and to obtain necessary transit permit. When the matter stood thus, he entered into an agreement with the plaintiff on 9-12-1988 for sale of the timbers for Rupees 3,20,000/-. The said agreement was signed by both parties and was registered at Baharain before the Indian Embassy. The plaintiff then got the joint verification made by the Revenue and Forest authorities whereafter necessary forms were submitted to the Divisional Forest Officer for transportation of the timbers. He also constructed motorable road and approach road to the suit land and engaged four persons to keep watch over the trees. In the meantime, defendant No. 1 revoked the power-of-attorney and also the agreement for sale with a view to sell the trees to a third party. Hence the suit.

(3.) Defendant No. 1 traversed the plaint allegations and contended, inter alia, that time was the essence of contract, inasmuch as the plaintiff was required to obtain necessary clearance from the Revenue and Forest authorities by 31-3-1989, but it failed to do so within the stipulated time for which he cancelled the power-of-attorney as also the agreement for sale.