The court cannot compel a person to do the impossible and damages cannot run forever without proper calculation and proof of loss.

Ajoy Nath Ray, J.

This is an appeal from a decree dated the 30th July, 2001, accompanied by a judgment of the same date whereby the court below granted reliefs to the plaintiff of substantially two kinds. First, the plaintiffs bus which had been entrusted with the appellant/defendant for repair was directed to be returned and secondly, 3,000 rupees per day was directed to be paid as damages by way of loss of profit from 3.3.93 until payment.

2. The facts of the case are not very complicated. On or about the 22nd February, 1993, the plaintiff delivered his bus to the Siliguri Works Office of the appellant for overhauling of the engine. The overhauling was to be completed and the bus returned on 2.3.93. The charges would be intimated along with return of the bus.

The plaintiff found on the appointed date that the appellant's office was under a lockout and he could not get delivery.

3. A suit was filed on the Original Side of the High Court thereafter. Leave under clause 12 of the Letters Patent was obtained. A Special Officer was appointed by way of interlocutory relief in the suit. The said officer paid a visit to Siliguri and we are told that some property of the appellant, but not the bus in question, was removed to Calcutta on that occasion.

4. However, the appellant applied for revocation of leave thereafter. Since the registered office of the appellant happened to be outside of the local limits of the ordinary Original Civil Jurisdiction of our High Court, by an order dated 16th January, 1996, passed by the Hon'ble Justice Ranojit Kumar Mitra, as his Lordship then was, leave under clause 12 was revoked. The plaintiff/thereafter went before the South 24 Parganas, i.e. the Alipore District Court.

5. The plaintiff gave evidence in the suit. It was stated by him that on the basis of four trips daily which the bus was making his profits would come to Rs.3,000/- per day. An annexure to the plaint makes the estimate at that figure also, giving, however, the exact figure to be Rs. 3,114/- per day. There was not much cross-examination of the plaintiff on the part of the defendant, on or in regard to, the money figures and profits, claimed by the plaintiff in the examination-in-chief.

6. The evidence, however, is wholly lacking in proof of the value of the bus as in February 1993, when it was delivered to the defendant for overhauling.

A Commissioner inspected the vehicle about two years later in 1995 and it was found at that time that the bus had been kept out in the open; the body was rusted; practically all the essential parts of the bus were missing. The report was to the effect that it would not be an economical proposition to repair the bus, of which practically nothing was left.

7. On behalf of the appellant it was submitted that after revocation of leave, the suit filed at Alipore was not exactly the plaint which had been filed in the High Court. Justice Mitra had stated in the order dated 16.1.96 as follows:

"In the circumstances, leave obtained under the clause 12 of the Letters Patent is revoked. Let the plaint be returned to the plaintiff for presentation of the same before the appropriate forum as the plaintiff may be advised."

8. Mr. Mitra appearing for the appellant submitted that claims (a) and (D of the newly filed plaint were new additions; the first claim prayed for a decree for giving of a new bus to the plaintiff because the old could not be delivered; and the claim (D was also somewhat to the same effect. According to Mr. Mitra these new additions to the plaint are unauthorised.

9. He also submitted that the plaintiff sought to prove only the gross receipts from the bus. No appropriate deductions were made therefrom although driver's salary, conductor's salary, khalashi's salary, and running expenses for the bus, were all mentioned. Even according to the plaintiff a part of these expenses would aggregate Rs. 14,000/- a month. Mr. Mitra further submitted that fuel cost was not taken into account. Other statutory e