D. M. DHARMADHIKARI, J. ( 1 ) THE M. P. State Co-operative Marketing federation constituted as an apex society under the provision of the M. P. Co-operative Societies Act, 1962 (for short referred to as 'federation' and the act, respectively) has filed this petition under Article 227 of the Constitution of India to assail the order of the Board of Revenue dated 14th May. 1987 (Annexure P-6) and the order dated 6. 10. 1987 (Annexure P-9) refusing to set aside the exparte order earlier passed in second appeal. ( 2 ) THE relevant facts leading to the present petition are as under : the Federation amongst other commodities deals in purchase and sale of rice, it had entered into three contracts in the year 1974 with the firm respondent No. 2, for supply of different quantities of rice. It is admitted that 215 quintals of rice was short supplied as the contract was revoked by the petitioner-federation. The respondent No. 2 then filed a claim under Section 64 of the Act, before the Deputy Registrar. The Deputy Registrar by judgment, dated 31. 3. 1982 (Annexure P-3) did not award any decree for damages for non-supply of the abovementioned quantity of rice. He, however, only granted a decree in the sum of Rs, 6,200. 00 being the refund of the earnest money payable to respondent No. 2 under the terms of the contract. The order of the deputy Registrar was upheld by the Additional Registrar in first appeal, by order made on 27. 9. 1986 (Annexure P-4) with the only modification that the amount of Rs. 6,200. 00 as earnest money was directed to be refunded with interest at the commercial rate. ( 3 ) AGGRIEVED by the rejection of his claim for damages, respondent No. 2, then preferred second appeal to the Board of Revenue. Despite notice to the federation since they failed to appear, the second appeal was decided ex parte. By the impugned order the Board of Revenue in second appeal held that there was a clear breach of contract committed by the federation and respondent No. 2 was entitled to damages at the rate of difference between the contracted rate and the market price of the commodity on the date of breach. The Board of Revenue, therefore, allowed the claim of damages to the extent of Rs. 9,675. The Board of Revenue, therefore, allowed the claim of damages to the extent of Rs. 9,675. 00 being the difference of price at the rate of Rs. 45. 00 per quintal for the total non-supplied quantity of 215 quintals. ( 4 ) THE federation made an application for setting aside the ex parte order made in second appeal. The Board of Revenue did not find any ground to set aside the ex parte order. ( 5 ) SHRI Abhay Sapre, learned Counsel appearing for the petitioner contends that the Board of Revenue in Second Appeal for the first time could not have gone into facts as the second appeal under the provisions of the Act could be filed only on some serious error of law or procedure. The second submission on merits is that after entering into contract for supply with respondent No. 2 a decision of State Government was conveyed to it, dated 19. 4. 1974 followed by letters of the Collector, Raipur, Durg and Rajnandgaon, dated 25th and 28. 5. 1974 that the stock of levy rice be made available for distribution through fair price shops. It is submitted that the federation. therefore, might have cancelled the indents ready for transport of rice to the-petitioner on 13. 5. 1974 and 5. 6. 1974. It is contended that non-supply of rice under the contract was for some intervening compulsion arising because of the orders and directions of the Government. The contract having been thus frustrated, the Board of Revenue ought not to have awarded damages. ( 6 ) IN the course of hearing, it was also urged that respondent No. 2 in evidence before the original Court failed to prove the rate existing on the alleged date of breach which that is be 13. 5. 1974 and 5. 7. 1974 when the indents issued infavour of respondent No. 2 were cancelled. ( 7 ) I have also heard Shri K. N. Agarwal. learned Counsel appearing for respondent No. 2. who supports the order passed by the Board of Revenue. 5. 1974 and 5. 7. 1974 when the indents issued infavour of respondent No. 2 were cancelled. ( 7 ) I have also heard Shri K. N. Agarwal. learned Counsel appearing for respondent No. 2. who supports the order passed by the Board of Revenue. He has placed before me a copy of the order issued by the Collector, Raipur, dated 24-25th May, 1974 of which reference has been made by the Deputy registrar in his order to hold that the federation cannot be said to have committed any breach of contract, ( 8 ) AFTER hearing the learned Counsel for the parties and perusing the record. I find no ground to interfere in the order of Board of Revenue in proceedings under Article 227 of the Constitution. By memo of the Collector. Raipur, dated 24-25th May, 1974 instructions were issued to the federation to make available the stock of levy rice for distribution through fair price shops and they were prohibited to sell such stock only to rice mill owners outside the State. The federation has not been able to place any statutory order issued under Essential Commodities Act, imposing a ban on sale or transport of rice by the federation. The supply under consideration was not to be made to any rice mill owners but it was sold to respondent No. 2 only as a trader and respondent No. 2 has its place of business within the State of Madhya Pradesh at Raipur. The memo dated 24-25th May, 1974. therefore, is of no avail to the federation to take a plea that there was frustration of contract because of some statutory orders or directions issued by the State Government. ( 9 ) SO far as the question of rate is concerned, the indents might have been cancelled by the federation on 13. 5. 1974 and 5. 6. 1974 but since the supplies were not made within the stipulated period, the breach was continuing for the stipulated period of contract. Respondent No. 2 has examined one of the Dalals dealing in grains to prove that in May 1974, thereto was Rs. 230 per quintal. The price increased at Rs. 231 per quintal on 12. 6. 1974 and dropped to Rs. 222. 50 on 17. 6. 1974. The Board of Revenue has assessed the damages on the basis of the rates proved by the Dalai examined by respondent No. 2. 230 per quintal. The price increased at Rs. 231 per quintal on 12. 6. 1974 and dropped to Rs. 222. 50 on 17. 6. 1974. The Board of Revenue has assessed the damages on the basis of the rates proved by the Dalai examined by respondent No. 2. If the federation wanted to assail the correctness of the deposition of Dalai nothing prevented them from leading some evidence in rebuttal or cross-examine him on the point of rate. I find no error in the order of Board of Revenue, in calculating the damages at the rate of Rs. 45. 00 per quintal being the difference between the contracted rate and the rate of commodity at the time of breach. ( 10 ) SO far the ground urged with regard to the jurisdiction of the Board of Revenue to interfere in second appeal is concerned, I find that the question whether the non-supply constituted a breach within the meaning of Contract Act, so as to. give rise to a claim of damages was not a pure question fact but a mixed question of fact and law. I. therefore, find no scope to upset the decision of Board of Revenue. ( 11 ) CONSEQUENTLY, the petition fails and is hereby dismissed but without any order as to costs. The amount of security, if in deposit be returned to the petitioner. Petition dismissed. .