( 1 ) THE plaintiff filed against the State of Bombay Regular Civil Suit No. 110 of 1956 in the Court of the Civil judge (Senior Division) Baroda for two substantive reliefs. The first relief which he sought was the declaration that the order or orders made by the State Government levying upon him penalty of Rs. 2568-2-0 were illegal void and without authority. The second relief which he prayed for was that a perpetual injunction be issued restraining the State Government from withholding his deposit of Rs. 2451/

( 2 ) THE impugned orders which were made by the State Government were based upon certain allegations which the State Government made against the plaintiff. The plaintiff had entered into a contract with the State Government for felling collection and removal of timber fire-wood etc. The plaintiff was to execute that contract and fell and remove the trees situate in Songir Coupe forest in Shankheda sub-range of Chhota Udepur Sub-Division of Baroda District. The State Government alleged that the plaintiff had cut without authority 56 trees and that therefore he was liable to make good to the State Government the value of the said trees so cut and the penalty. On 25th March 1955 the Chief Conservator of Forests of the State of Bombay made an order which is Ex. 34 wherein he stated that the total fine of Rs 2650-10-0 imposed upon the plaintiff by the Sub-Divisional Forest Officer Chhota Udepur for various breaches of the said agreement was justified. He further stated that towards the said amount a sum of Rs. 62-8-0 had been paid by the plaintiff and that therefore a sum of Rs 2568-2-0 was outstanding to be recovered from him. Having made this order the Chief Conservator of Forest further stated in his order that sum of Rs 2451/being the balance the deposit made by the plaintiff with the State Government in terms of the said contract could not be refunded to him.

( 3 ) THE Sub-Divisional Forest Officer Chhota-Udepur on 16th/19th May 1955 wrote a letter to the plaintiff directing him to pay the aforesaid sum of Rs. 258-2-0 into the Government Treasury within a fortnight failing which he stated that the said amount would be recovered from his deposit.

( 4 ) UNDER these circumstances the plaintiff filed the present suit for the aforesaid two reliefs.

( 5 ) THE learned Trial Judge Upon evidence having felt satisfied with the claim which the plaintiff had made granted the declaration that the orders which the State Government had made against the plaintiff for recovery of a sum of Rs 2562-2-0 were illegal and ultra vires and not binding upon the plaintiff. The learned Trial Judge also issued perpetual injunction restraining the State Government from retaining the plaintiffs amount of deposit of Rs. 2 451 which was kept with it.

( 6 ) THE State Government appealed to the District Court against the decree passed by the learned Trial Judge.

( 7 ) THE learned Assistant Judge who hoard the said appeal dealt with only one aspect of the case which was argued before him and arrived at the conclusion that the suit for declaration which the plaintiff had filed was not maintainable under sec. 42 of the Specific Relief Act. He in that vice of the matter did not think fit to record his finding on the merits of the case and allowed the appeal set aside the decree passed by the learned Trial Judge and dismissed the suit with costs.

( 8 ) AGAINST that appellate decree the plaintiff filed in this High Court Second Appeal No. 1235 of 1960 which was heard by Mr. Justice Raju on 10th March 1966.

( 9 ) TWO points were canvassed before him both of which he by his judgment negatived. The first point which was canvassed related to the civil Application which the plaintiff had made seeking permission to amend the plaint. He negatived that application to the plaintiff. The second contention which was urged before him was that the plaint includes a prayer for refund and that therefore the learned Assistant Judge was in error in taking the