- (1.) RAJESH Tandon, J. Heard SriSarvesh Agarwal,counsel for the appellant and none for the re spondent.
(2.) BY the present Second Appeal filed under Section 100 of the Code of Civil Procedure, appellant has prayed for set ting aside the judgment and decree dated 9. 5. 2003 passed by the District Judge, Almora in Civil Appeal No. 4 of 2003 aris ing out of judgment and decree dated 1. 6. 2001 passed by the Civil Judge (Junior Division), Ranikhet, District Almora in Civil Suit No. 6 of 1998 Gopal Mehrotra Vs. Lakshman Singh. Briefly stated, a suit was filed by the plaintiff/appellant being Civil Suit No. 6 of 1998 Gopal Mehrotra Vs. Lakshman Singh praying to the following effect: " (17) That the plaintiff claims: - (A) That a decree for specific perform ance of the agreement dated 9-7-1993 be passed in favour of the plaintiff \ against the defendant to get the pros pecting licence/ Mining Lease trans ferred to the plaintiff within such time as the Court may grant and the trans fer of Prospecting Licence / Mining Lease be executed by the Court in fa vour of the plaintiff. That costs of the suit be awarded to the plaintiff against the defendant. (B) That an ad interim injunction against the defendant may be passed restraining perform selling, shifting, despecting for testing or any other pur pose or otherwise transporting the soapstone mined or extracted from the mine site in village Kidai, Patti Nakuri, Tehsil Bageshwar, District Bageshwar. (C) That the defendant may be di rected to sell the soap stone mined or to be mined to the plaintiff only. (D) That any other relief which the Court deems fit and proper in the cir cumstances of the case be also awarded to the plaintiff against the defendant. " According to the plaint averments, the defendant had applied for grant of prospecting licence / Mining Lease for mining of soap in Village Kidai, Patti Nakuri. It was expected that the prospect ing licence will be granted to the defend ant but the defendant was not in a situa tion to meet various expenses on differ ent heads for getting the prospecting li cence. The plaintiff had been dealing in soap stone and had also been guiding people in the mining of soap stone. The defendant approached the plaintiff at Ranikhet to assist him in starting mining operations, but since the financial condi tion of the defendant was not sound and he was unable to meet the expenses of get ting the prospecting licence approved and to do other matters relating to the grant of mining lease, the plaintiff on the pro posal of the defendant agreed to certain terms on 9. 7. 1993 which were reduced to in writing and the agreement was also registered in the office of Sub Registrar, Ranikhet on 9-7-1993- With the efforts of the plaintiff, the prospecting licence was granted to the defendant on. 14. 9. 1994 and was registered in the office of Sub Registrar on 2. 6. 1995. In performance of his part of the agreement the plaintiff got a mining plan prepared as required by law. The plaintiff has incurred an amount of Rs. 72,500/- in preparation of mining plan. Further, the defendant was paid a sum of Rs. 10,000/- besides Rs. 5,000/-earlier paid towards balance considera tion. The plaintiff also incurred heavy expenses in traveling and obtaining pros pecting licence. The plaintiff asked the de fendant to transfer the prospecting licence in his favour, but the defendant avoided the same. Since the relations between the parties were very cordial, the defendant executed a power of attorney in his favour on 25. 5. 1996 regarding completion of various formalities in formation of the said company. The defendant having re fused to get the prospecting licence / Min ing Lease transferred in favour of the plain tiff as well as also refused to transfer the quantity of the soap mined to the plain tiff and has also revoked the power of at torney also, the present suit was filed by the plaintiff. Plaintiff has also come to know that the Government is going to grant the Mining Lease in favour of the defendant. The refusal by the defendant to transfer the prospecting licence / min ing lease in favour of the plaintiff and his refusal to sell the mined material to the plaintiff is causing irreparable loss to the plaintiff.
(3.) NO written statement has been filed by the defendants to contest the plaint. Towards the documentary evi dence, the plaintiff has filed per list 10 Ga certified copy of the agreement dated 9. 7. 1993 Paper No. 11 Ga and per list 51 Ga Original Prospectign Licence along with map Paper No. 52 Ga /1 to 52 Ga/ 30 and 53 Ga. Towards the oral evidence, the plaintiff has been examined as PW. 1.;