RAJA NARENDRA LAL KHAN Vs. MANMOTHA RANJAN PAL

JUDGEMENT

(1.) THIS is an appeal by the plaintiff against the decision of the learned Additional District Judge of Midnapur, dated the 28th August 1916, affirming the decision of the Munsif of the same place. The plaintiff sued for damages for breach of a contract with reference to the sale of timber growing on certain jungle, the property of the plaintiff. The facts as found are perfectly simple, namely, that the defendants out and removed the timber growing on certain portions of the jungle and that they had paid in advance in excess of the value of the timber so removed. Under the terms provided for by the contract, the plaintiff now wants damages from the defendants. There seem to be two answers to the plaintiff s contention. The first answer is that apparently the plaintiff himself was in default under the contract in not having agreed to have a measurement. If that was so, of course, the plaintiff cannot recover damages in respect of a contract, that he committed a breach of. The second answer is that the plaintiff, purporting to act under the terms of the contract, resumed possession of the forest and got back all the timber the price of which he now seeks to recover from the defendants. The plaintiff has given no evidence that he suffered any damages. It may be that to-day or to-morrow he will be able to re-sell the timber for an equal or a larger price than what he had sold it for to the defendants. He cannot get damages from the defendants without proving what damage he had suffered and what was the pecuniary loss that happened to him by reason of the defendants not having carried out their part of the contract. It is quite possible in this case, without coming to any conclusion as to what is the actual meaning of certain parts of the contract, to say that the plaintiff having failed to perform his part of the contract and there being no evidence that he suffered any loss at all as to the timber for which he now seeks to recover, damages cannot succeed in the present suit. The present appeal, therefore, fails and must be dismissed with costs, such costs to be paid only to the contesting defendant No. 3.