G. Balagangadhahan Nair, J.
1. This revision by the plaintiff -- the State of Kerala arises under the following circumstances.
2. The State brought the suit against the defendant, the Kannan Devan Hills Produce Co. Ltd. (hereinafter called the Company for short), for an injunction to restrain it from cutting and removing trees from lands covered by the Kannan Devan Concession Area. By an agreement, Ext. D3 dated 5-11-1970 the Company had given the petitioner the right to cut and remove trees from 5000 acres in the Concession Area for a period of 5 years. Pursuant to the agreement the petitioner has felled trees from a portion of the 5000 acres. The petitioner made two applications in the suit, one to be added as a party and the other for sale of the trees felled, through a Commissioner. The application for impleadment is stated to be still pending. The Court sold the timber through a Commissioner and the sale proceeds amounting to Rupees 6,04,000/- were deposited in Court. Thereafter the petitioner filed I. A. 2077 of 1971 for payment of Rs. 2,45,000/- which may roughly work to Rupees 45/- for cubic metre towards the cutting and stacking charges and construction of roads, culverts and bridges etc. and another sum of Rs. 7,500/- being the amount paid to the Commissioner towards expenses for the conduct of the sale. The petitioner alleged that under the agreement it had paid the Company an advance of one lakh of rupees, and that it entered into the agreement in the bona fide belief that it could carry on the work for a period of 5 years. It was further stated that for a long time the Forest Department had been granting permits in the name of the Company to remove the timber cut by the Company's lessees on payment of seignorage to Government, that Government had never objected to the felling and removal of trees and that objection had been raised now for the first time after the petitioner had bona fide cut large number of trees and spent money on the construction of roads, bridges etc. for access to the interior of the forests and for removal of the timber. The application was opposed mainly by the State contending that it was not maintainable, that the State was not bound by the agreement, Ext. D3, that the agreement was beyond the Company's rights as the Company could cut trees only for the purposes of the plantation and that in any case the rate of Rs. 45/- per cubic metre claimed by the petitioner was excessive.
3. The court below held that the application was maintainable and that the rate claimed by the petitioner was acceptable. It accordingly allowed the petitioner to draw Rs. 1,50,000/- on account of cutting charges of the timber, over and above Rs. 95,000/-already paid to the petitioner under an interim order of 27-11-1971. The petitioner was also paid Rs. 7,500/-.
4. The learned Government Pleader contended that the petitioner had no right whether in law or equity to the working charges of cutting down the timber. The Court below has observed that in view of the interim order of 27-11-1971, directing the payment of Rs. 95,000/-, the petitioner's right to working charges on grounds of equity has been accepted in principle. We find it impossible to bold that the 'interim order', as the nature of the order itself indicates, has or could have any such conclusive effect. But nevertheless it is worth mentioning that the court has noted, that the State did not seriously dispute the petitioner's claim. That apart, we are inclined to hold that the petitioner is entitled to the working charges. It has been pointed out in Halsbury's Laws of England, Volume 14 (3rd edition), page 530, '..... generally, one who in good faith incurs expense in dealing with the property of another, as in getting coal, is allowed his expenses.' Currimbhoy and Co. Ltd. v. L. A. Creet, (AIR 1930 Cal 113) which considered the measure of damages by a trespasser to a coal mine, has held that his liability is subject to fast allowances. The nature and extent of the allowances depends on the conduct of the parties and the other circumstances of the case. The decision discusses the nature and scope of the allowances and proceeds to say:
'There are two rules (1) the harsher, under which only the cost of bringing the coal to bank is alowed and (2) the milder under which the expense of hewage and haulage i. e. the cost of working and severing as well as of bringing to bank is allowed.''
There is a full discussion with reference to several English cases of the circumstances under which one or the other of the above rule is applied. Into that elaboration it is unnecessary to go, for the petitioner is claiming merely the working charges of cutting the timber. In our view the principle laid down by Halsbury's Laws of England and Currimbhoy's case, though they related to cases of extraction of coal applies to the pre-sent case. The State does not altogether deny the right of the Company to cut trees but only seeks to limit it to plantation purposes and the petitioner's affidavit asserts that the State had all along been issuing permits, for the transport of timber of the trees felled. The petitioner has also felled the trees under the agreement with the Company. All this unmistakably establishes the petitioner's bona fides. No principle or authority was quoted before us to deny the petitioner's claim. We, therefore, uphold the petitioner's right to get reasonable working charges and these, as directed in the sequel, win be determined by the court below.
5. That, however, is not the end of the matter. The petitioner has not led any evidence to establish the expenses that it has incurred on this account or how much timber it has felled. None on behalf of the petitioner has even sworn to these essential facts nor has the court below entered any finding except saying that it is accepting the rate alleged by the petitioner in preference to that given by the Government. Indeed the court seems to assume that the burden in this respect on the Government. We feel that the ap proach made by the court below spells a material irregularity in the disposal of the application.
6. Yet again we feel that the court below should have proceeded to determine the quantum of the petitioner's claim, which has to come from the proceeds of the timber, as an issue in the suit after impleading the petitioner, for which an application is pending and to which neither the Government nor the Company, we were told, had any objection. We, therefore, direct the court below to implead the petitioner as an additional defendant and deal with the quantum of reasonable working charges as an issue in the suit.
7. We were informed that pursuant to the order under revision, the petitioner has drawn the amount. In the circumstances we direct that the petitioner may retain the amount, subject of course, to the final disposal of its claim in the suit.
8. We set aside the order and direct fresh disposal of the questions in the light of what is stated above. No costs.