S.N. Modi, J.
1. This first appeal by the defendants is directed against the judgment and decree of the Additional District Judge, Baran, dated 8.11.71 in a suit for damages and permanent injunction.
2. The State of Rajasthan through its Divisional Forest Officer auctioned the contract of extracting gum produce from the forest of the Range Chhipabarod. district (sic) for the year 1964-65. The highest bid of Rs. 22501/- being of the plaintiff, the contract was knocked down in his favour. Under the terms and conditions of the contract, the plaintiff was required to depostit the contract money in three instalments of Rs. 7501/- each. The plaintiff deposited the first instalment as also substantial amount in the second instalment but failed to deposit the third instalment of Rs. 7501/- On plaintiff's failure to deposit the two instalments, on due dates, the Divisional Forest Officer cancelled the contract on 7.6.65 and preheated the plaintiff from collecting gum produce for the remaining period ending on 30.9.65. The Divisional Forest Officer thereafter issued notice to the plaintiff to deposit the balance of the contract money and he was also threatened that in case of failure to deposit the amount proceedings under the Rajasthan Land Revenue Act would be initiated to recover the amount. It was further alleged that the D.F.O. also sent a requisition to the Sub Divisional Officer to recover the balance amount of Rs. 8875/- from the plaintiff as arrears of land revenue. The plaintiff thereupon instituted the present suit for the relief inter-alia that the State of Rajasthan and the Divisional Forest Officer be restrained from realising the amount of Rs. 8875/- from the plaintiff. The plaintiff also claimed certain amount of damages from the defendants but that part of his claim was dismissed by the trial court. The trial court, however, decreed the suit for permanent injunction and prohibited the State of Rajasthan and the Divisional Forest Officer from realising the amount of Rs. 8875/- from the plaintiff. Aggrieved by the decree, the State of Rajasthan and the Divisional Forest Officer have come up is appeal to this Court.
3. The trial court has held that the D.F.O. had no authority to cancel the contract on 7.6.65 and deprive the plaintiff from collecting gum produce from the Range Chhipabarod. The learned Additional District Judge based his findings on a term of the contract which provided that the contract shall be liable to be cancelled by the person who had accepted the contract on behalf of the State of Rajasthan. The learned Additional District Judge also held that the contract was accepted either by the Chief Conservator of Forest or by the Revenue Secretary and therefore the cancellation of the contract by the Divisional Forest Officer is illegal The learned Counsel for the State has challenged the correctness of this finding on the basis of Rule 19 of the Forest Contracting Rules of 1958. According to that Rule, the contract could be cancelled by the Divisional Forest Officer in case of failure on the part of the contractor to pay the instalments on the fixed dates after 15 days of the notice. In the present case, a notice was given to the plaintiff but even then the amount of instalments was not deposited. The Divisional Forest Officer acting under this Rule cancelled the contract. The learned Additional District Judge after referring to Rule 19 ignored it by saying that it was a general rule and cannot be applied in face of the terms of the contract In my opinion, Rule 19 is applicable and the Divisional Forest Officer was competent authority to cancel the contract on failure of the plaintiff to deposit the instalments on the specified date. But that does not benefit the case of the defendant in any way According to Rule 19, the Divisional Forest Officer on cancellation of the contract was required to resell the contract for the remaining period and then claim a difference. In the present case, the contract for the remaining period was not resold as required by Rule 19. The D.F.O. by his omission in not re-selling the contract for the remaining period of the contract prevented any measure of the damages for the breach of the contract being ascertained at all. It can legitmately be argued on behalf of the plaintiff respondent that in case the contract was resold for the remaining period, it would have fetched more than the amount due from him. The plaintiff has thus been deprived of the benefit of re-sale. The undoubted law is that a person who claims damages owes the duty of taking all the reasonable steps to mitigate the loss consequent upon the breach and cannot claim as damages any sum which is due to his own neglect. The loss to the defedants could have been ascertained only if the Divisional Forest Officer had resold the contract for the remaining period. I am therefore of the opinion that the State of Rajasthan had failed to prove that it suffered any loss on account of the breach of the plaintiff in depositing the instalments. No recovery can therefore be ordered against the plaintiff for the amount of Rs. 8875/- .
4. The learned Counsel for the State next contended that in this case a notice for recovery of Rs. 8875/- was issued against the plaintiff Under Section 266 of the Rajasthan Land Revenue Act and unless the plaintiff deposited the amount claimed under the notice, no suit was maintainable Under Section 257 (b) (iii) and Section 269 of the Rajasthan Land Revenue Act. According to the learned counsel, it was a condition precedent for the plaintiff to allege that he deposited the amount claimed from him in the notice and in the absence of such allegation, the suit is not maintainable. This point was not raised in the written statement. Under Order 6, Rule 6 CPC, an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff shall be implied in his pleadings. If the defendant intended to contest performance of the condition precedent, namely, deposit of amount claimed under the notice, it was incumbent upon the defendant to distinctly specify the same in its written statement. learned Counsel for the appellant contended that at a matter of fact the court ought to assume in this case that the amount claimed in the notice was not deposited by the plaintiff before the institution of the suit. He pointed out that if the plaintiff had deposited the amount, he would have instituted the suit for the refund of the amount and not for the permanent injunction restraining the defendant from taking steps for recovery of the amount. In my opinion, there is no substance in the above contention. It may be true that the plaintiff had not deposited the amount before filing of the suit but since the point was not raised he had no occasion to explain why the amount was not so deposited The notice alleged to have been issued Under Section 256 of the Rajasthan Land Revenue Act has not been produced in the case. It may be that the amount was not deposited because the notice was defective or was not issued Under Section 256 of the Rajasthan Land Revenue Act. All these pleas would have been raised if the defendant had raised the point in its written statement. A belated attempt to scuttle the suit by such a plea in the appeal is bound to prejudice the plaintiff. The defendant cannot be allowed to raise a new plea for the first time in appeal.
5. No other point has been pressed before me. There is no force in this appeal and it is dismissed with costs.