A. P. SRIVASTAVA, J.

( 1 ) THIS is a plaintiffs appeal that arises out of a suit for declaration.

( 2 ) THE plaintiff-appellant is a limited company carrying on the business of manufacturing gunny bags in the district of Gorakhpur. The defendant is a firm of Ghaziabad, district Meerut, dealing in that commodity. In April 1948 the defendant placed an order with the plaintiff for the supply of certain bales of gunny bags but the transaction fell through because no agreement could be arrived at about rates and because the defendant was unwilling to furnish security as desired by the plaintiff. The defendant again wrote to the plaintiff on the 23rd of April 1948 offering to purchase bags of D. W. Kalidhari quality at the rate of Rs. 98/- per hundred bags and D. W. 40/28 quality at the rate of Rs. 102/- per hundred bags. On getting this letter on the 26th of April 1948 the plaintiff replied that the rates were acceptable to it and it was willing to supply 50 bales of the first quality and 50 bales of the second quality, provided other expenses besides the price were paid. Thereafter on the 27th of April 1948 the defendant sent a telegram in which he agreed to purchase the goods offered at the rates mentioned. On the same day the plaintiff sent a telegram demanding a security of Rs. 2,000/from the defendant for the performance of the contract. Immediately afterwards the defendant informed the plaintiff that he was not willing to furnish the security on any account and enquired from it whether on account of his refusal to furnish the security the contract for the supply of 100 bales of gunny bags stood or was to be treated as cancelled. He was informed by the plaintiff that the contract stood cancelled. Thereafter the defendant threatened to file a suit against the plaintiff for recovery of damages for breach of contract. This led the plaintiff to file the suit out of which the present appeal has arisen. In that suit the reliefs claimed by the plaintiff were: (a) By passing a decree in favour of the plaintiff, against the defendant, it may be declared that between the parties no transaction about the purchase and sale of 50 bales of hags of D. W. Kalidhari at the rate of Rs. 98/- per hundred and 50 bales of bags of D. W. 48/28, at the rate of rs. 102/- per hundred, stands and subsists, and that order for costs may be passed against the defendant. (b) Besides in place of or in addition to the reliefs aforesaid any other relief to which the plaintiff is found entitled by the court may also be decreed in favour of the plaintiff against the defendant.

( 3 ) THE suit was contested by the defendant on the grounds that it was not maintainable under section 42 of the Specific Relief Act, that it was not triable by the court in which it had been filed and that in fact the contract between the parties had been duly completed and the plaintiff was not justified in saying that it did not subsist. A plea of insufficiency of court-fee was also raised.

( 4 ) THE suit was tried by the Civil Judge of Gorakhpur who held that he had jurisdiction to try the suit, that the court-fee paid was sufficient, that in fact there was no subsisting contract between the parties and that no declaration as claimed by the plaintiff could be granted to him under section 42 of the Specific Relief Act. On the basis of this last mentioned finding the suit was dismissed.

( 5 ) THE plantiff has come up in appeal and it is contended on his behalf that the view taken by the learned Civil Judge about the scope of Section 42 of the Specific Relief Act is erroneous and that the declaration claimed by the plaintiff should not therefore have been refused.

( 6 ) THE short question that therefore arises for decision in this appeal is whether a suit for a declaration that a contract between the parties does not subsist and the plaintiff is on that account not liable for damages for breach of contract is maintainable under Section 42 of the Specific relief Act.

( 7 ) SECTION 42 of th

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