Section 34 of the Specific Relief Act, 1963 is not exhaustive and there may be cases where a declaration may be granted by the court even though the case may not be covered by Section 34.

( 1 ) THIS is defendants First Appeal against the decree dated 31-10-1979, passed by the Civil Judge, Gorakhpur, in a suit filed buy the plaintiff-respondent for a declaration that the impugned order No. D/6 (4)/sugar-G. K. P. /1597 dated 3-7-1973, passed by the defendant-appellant was illegal, void and not binding on the plaintiff.

( 2 ) THE facts need not detain us as they are more or less admitted. The plaintiff respondents case was that he was a Transport Contractor of Sugar and has been undertaking transport and other contracts for supply of labourers and handling foodgrains. On 14-5-1973, the defendant-appellant ordered the plaintiff-respondent to transport sugar from six mills situate in U. P. to 7 different districts and the payment was to be made in accordance with the rates stipulated in the order. One of the important conditions was that the plaintiff shall be held responsible for theft or loss in transit. The contract was ad hoc and was given in emergency, liable to be terminated by a short notice, and was valid for one month only from the date of issue of the letter. In pursuance of the order the plaintiff preferred the work of transport of sugar from said mills to 7 districts in U. P. and submitted a bill in May, 1973. In fact 1248 bags of sugar were transported from Nawabganj Sugar Mill to Ferozabad. Out of it 936 bags of sugar were drenched by the act of God. The aforesaid sugar was handed over to the driver of the truck No. W. B. K. 6602, but the same did not reach the destination. It transpired later that 100 bags of sugar were not delivered by the truck driver. Consequently an F. I. R. was lodged on 3-6-1973 at P. S. Babupurwa Distt. Kanpur and the driver, cleaner, etc. were taken into custody by the police of Kanpur. The impugned order was passed by the plaintiff (defendant ?) indicating that the twice the levy price of 100 bags of sugar and other incidental expenses would be recovered from the plaintiff who never agreed to pay twice the value of the goods lost. In view of the aforesaid illegal order dated 14-5-1973, the plaintiffs bill for Rs. 31,059. 67 in respect of this contract and a bill of Rs. 4,000/- in respect of handling contract have been withheld. The plaintiff repeatedly requested the defendant not to implement the order dated 3-7-1973 but he paid no attention hence, the necessity for the suit.

( 3 ) THE defendant-appellant contested the suit denying the plaint allegations and alleged that the impugned order was perfectly correct as the aforesaid sugar bags have been lost in transit by the plaintiff, the contractor, and he was liable to pay twice the price of the sugar, that there was no cause of action for the suit, that the suit was barred by S. 34 of the Specific Relief Act, 1963 (for short the Act ). The plaintiff was not entitled to any relief.

( 4 ) THE suit was decreed and the impugned order dated 3-7-1973 was held to be illegal and void, and not binding on the plaintiff respondent present appeal has been filed against the decree of the Court below.

( 5 ) SRI V. K. S. Chaudhary, learned counsel for the appellant urged that suit, as framed, was not maintainable and was barred by S. 34 of the Act that there was no cause of action for the suit and the suit could not have been legally decreed for the relief of declaration. The order dated 3-7-1973 directing the recovery of twice the levy price of the sugar from the plaintiff was justified, as that was based on the difference between market price prevalent on the date of the order and the actual price of the sugar. Reliance was placed on Protap Chandra Koyal v. Kali Charan Acharya, AIR 1963 Cal 468, Union of India v. M/s. Commercial Metal Corporation, AIR 1982 Del 267.

( 6 ) SRI S. M. Misra, learned counsel for the respondent on the other hand, urged that in case the proviso to S. 34 was read along with the main provisions of the Act, the suit was maintainable, inasmuch as no further relief was required by the plaintiff than t