JUDGMENT

Asutosh Mookerjee, J. - This is an appeal by the plaintiff in a suit, instituted against the Secretary of State for India, for damages in respect of a license for catching elephants in Assam. On the 16th June, 1915, the plaintiff, Frederick Thomas Kingsley, a European British subject, obtained from the Deputy Commissioner, Goalpara, a license to catch elephants in Goalpara Mahals Nos. 1 and 11 and Bhutan Mahals Nos. 1 and 11, for the period from 1st October, 1915 to 31st March, 1916 and from 1st October, 1916 to 31st March, 1917. The plaintiff paid a consideration of Rs. 66,000 for the license. The plaintiff captured 279 elephants in the first year and 342 elephants in the second year. The case for the plain tiff was that he could not catch as many elephants as he would have done, but for the wrongful acts of the officers of the defendant. His grievance was three-fold; first, the operations were delayed by reason of the failure of the defendant to provide him with the requisite passport; secondly, the removal of captured elephants was hindered by reason of wrongful refusal of the officers of the Forest Department to accept the prescribed royalty and to issue, the transit passes; and thirdly, that the depot at Hail River and the whole of the Goalpara Mahals were wrongfully burnt out under the orders of the officers of the Forest Department. The damages under these three heads were claimed as follows:

(i) Delay in commencementof operations                         ... Rs. 5,800(ii) Hindrance in the removalof elephants                          ... Rs. 5,000(iii) Loss due to fire-   (a) Hail Depot                     ... Rs.   951   (b) Goalpara Mahal       1915-16                        ... Rs. 1,21,500   (c) Goalpara Mahal       1916-17                        ... Rs. 23,400

2. The Subordinate Judge has assessed Rs. 1,537-8-0 under the first head and has refused the claim in respect of the other two heads. The plaintiff has appealed against this decree, and a memorandum of cross-objections has been filed on behalf of the defendant. The matters in controversy have thus been reopened in their entirety.

3. As regards the first point, we are of opinion that the plaintiff had a cause of action against the defendant. The plaintiff who acquired the right to the license as the highest bidder at a public auction, was a European British subject. He could not cross the inner line into the Bhutan Mahals without the special sanction of the Government of India. The officer of the defendant should consequently have been ready to provide the plaintiff with the requisite inner line pass. It is an elementary rule that the grantor of license is under an obligation to place the licensee in a position to enjoy the license. The result was that the reference to the Government of India took some time, and the plaintiff was not enabled to enter the Bhutan territory till about the 15th October at the earliest. It cannot be reasonably urged that the plaintiff might have managed the business through hiss agents The answer is that he was entitled to be present and to start the operations personally There is thus no escape from the position that the operations were delayed for two weeks, by reason of default on the part of the officers of the defendant. The plaintiff is consequently entitled to damages. The Subordinate Judge has held that the damage should be assessed on the basis of what he calls the "actual loss" sustained by the plaintiff rather than the "profit" the plaintiff would have made during this period On this basis, which ignores the funda.1 mental principle of the law of compensation formulated by the Roman jurist cessans, damnum emergens--loss suffer, gain prevented-the Subordinate Judge has allowed the plaintiff a refund of the license-fee during this period and the expends incurred in connection with the stockades this he has assessed at Rs. 1,537-8-0 The plaintiff, on the other hand, urged in the Court below, and the argument has been re