A.Banerji, J. - (1.) This is a second appeal by the plaintiff Rambarai Prasad and another. They filed Suit No. 307 of 1981 in the court of Munsif City, Azamgarh for the relief of declaration that the plaintiffs were entitled to the extension of time limit to lift coal ash under the terms of the agreement dated 23-3-1980 until the remaining 226090 cubic feet of coal ash was lifted, and also prayed for a prohibitory injunction restraining the defendant State Electricity Board from interfering with or creating any hindrance in lifting the aforesaid coal ash. The suit was decreed by the trial court and an appeal filed by the appellant State Electricity Board was dismissed with costs by the judgment dated 11th March, 1983 and the judgment and decree of the trial court were confirmed. The plaintiff respondents wore allowed a month's time to remove the remaining quantity of coal ash subject to the payment of price to the appellant as agreed upon under the contract. The appellate court further directed that in case the State Electricity Board evaded receiving the price it is open to the plaintiffs to deposit the same and to remove the coal ash under the directions of the trial court. It is against the above decree that the present appeal has been filed by the State Electricity Board.
(2.) Before I refer to the question raised in this appeal, it would be relevant to set down the undisputed facts. The State Electricity Board has a power station at Maunath Bhanjan, district Azamgarh. Certain amount of coal ash is produced by the power station in the course of producing thermal power. This coal ash is disposed of periodically by sale to intending purchasers. The plaintiffs entered into an agreement with the U. P. State Electricity Board to lift coal ash of 6,00,000 cubic feet between 23-3-1980 and 22-3-1981. It was further stipulated that the plaintiffs would lift the entire quantity of 6 lakhs cubic feet of coal ash within the above period but not beyond the stipulated period. It appears that during this period they lifted 373910 cubic feet of coal ash. They had still to lift the balance amount of 226090 cubic feet of coal ash when the period expired. The plaintiffs obviously wanted to lift the remaining amount of coal ash but they were not allowed to do so. The plaintiffs alleged that they were prevented from lifting or taking away coal ash during the period of one year by the defendants and their officers who created impediments in doing so. This resulted in lesser amount being lifted by the plaintiff. The plaintiffs' prayer to the defendant to extend the time for lifting the remaining amount of coal ash was not acceded to by the defendant on the ground that the time limit had expired and according to the contract no lifting was permissible after the expiry of the time. The plaintiffs thereupon filed the present suit with the reliefs mentioned above. It may be mentioned here that after the suit had been filed the court below permitted the plaintiffs to lift coal ash but between 7th and 10th April, 1983 another 17809 cubic feet coal ash had been lifted by the plaintiffs. They claimed that they had still to lift another 226090 cubic feet of coal ash.
(3.) The defendant State Electricity Board took a plea that the contract stipulated the lifting of coal ash within a period of one year and the date had also been clearly fixed under the agreement. The agreement further stipulated that they could not lift any amount of coal ash beyond the stipulated period. Their plea was that the contract had come to an end and the plaintiffs were (not?) entitled to any of the reliefs claimed for. It was further pleaded that they did not have any right under the agreement to lift the remaining amount of coal ash. They denied that any obstacle had been created by the defendants or their officers. It was further pleaded that the suit filed by the plaintiffs was not maintainable.;