JUDGMENT Ajoy Nath Ray, J. This is an appeal from a decree dated the 30th July, 2001, accompanied by a judgment of the same date whereby the court below granted reliefs to the plaintiff of substantially two kinds. First, the plaintiffs bus which had been entrusted with the appellant/defendant for repair was directed to be returned and secondly, 3,000 rupees per day was directed to be paid as damages by way of loss of profit from 3.3.93 until payment. 2. The facts of the case are not very complicated. On or about the 22nd February, 1993, the plaintiff delivered his bus to the Siliguri Works Office of the appellant for overhauling of the engine. The overhauling was to be completed and the bus returned on 2.3.93. The charges would be intimated along with return of the bus. The plaintiff found on the appointed date that the appellant's office was under a lockout and he could not get delivery. 3. A suit was filed on the Original Side of the High Court thereafter. Leave under clause 12 of the Letters Patent was obtained. A Special Officer was appointed by way of interlocutory relief in the suit. The said officer paid a visit to Siliguri and we are told that some property of the appellant, but not the bus in question, was removed to Calcutta on that occasion. 4. However, the appellant applied for revocation of leave thereafter. Since the registered office of the appellant happened to be outside of the local limits of the ordinary Original Civil Jurisdiction of our High Court, by an order dated 16th January, 1996, passed by the Hon'ble Justice Ranojit Kumar Mitra, as his Lordship then was, leave under clause 12 was revoked. The plaintiff/thereafter went before the South 24 Parganas, i.e. the Alipore District Court. 5. The plaintiff gave evidence in the suit. It was stated by him that on the basis of four trips daily which the bus was making his profits would come to Rs.3,000/- per day. An annexure to the plaint makes the estimate at that figure also, giving, however, the exact figure to be Rs. 3,114/- per day. There was not much cross-examination of the plaintiff on the part of the defendant, on or in regard to, the money figures and profits, claimed by the plaintiff in the examination-in-chief. 6. An annexure to the plaint makes the estimate at that figure also, giving, however, the exact figure to be Rs. 3,114/- per day. There was not much cross-examination of the plaintiff on the part of the defendant, on or in regard to, the money figures and profits, claimed by the plaintiff in the examination-in-chief. 6. The evidence, however, is wholly lacking in proof of the value of the bus as in February 1993, when it was delivered to the defendant for overhauling. A Commissioner inspected the vehicle about two years later in 1995 and it was found at that time that the bus had been kept out in the open; the body was rusted; practically all the essential parts of the bus were missing. The report was to the effect that it would not be an economical proposition to repair the bus, of which practically nothing was left. 7. On behalf of the appellant it was submitted that after revocation of leave, the suit filed at Alipore was not exactly the plaint which had been filed in the High Court. Justice Mitra had stated in the order dated 16.1.96 as follows: "In the circumstances, leave obtained under the clause 12 of the Letters Patent is revoked. Let the plaint be returned to the plaintiff for presentation of the same before the appropriate forum as the plaintiff may be advised." 8. Mr. Mitra appearing for the appellant submitted that claims (a) and (D of the newly filed plaint were new additions; the first claim prayed for a decree for giving of a new bus to the plaintiff because the old could not be delivered; and the claim (D was also somewhat to the same effect. According to Mr. Mitra these new additions to the plaint are unauthorised. 9. He also submitted that the plaintiff sought to prove only the gross receipts from the bus. No appropriate deductions were made therefrom although driver's salary, conductor's salary, khalashi's salary, and running expenses for the bus, were all mentioned. Even according to the plaintiff a part of these expenses would aggregate Rs. 14,000/- a month. Mr. Mitra further submitted that fuel cost was not taken into account. Other statutory expenses are not mentioned and .the plaintiff utterly failed in producing any books of accounts or other contemporaneously kept papers for substantiating and corroborating his oral evidence. 10. Even according to the plaintiff a part of these expenses would aggregate Rs. 14,000/- a month. Mr. Mitra further submitted that fuel cost was not taken into account. Other statutory expenses are not mentioned and .the plaintiff utterly failed in producing any books of accounts or other contemporaneously kept papers for substantiating and corroborating his oral evidence. 10. Since papers of some sort are bound to be there, much of the best evidence which could throw light on the matter was withheld, therefore the plaintiffs evidence could not be accepted. He also submitted that the return of the bus being impossible the decree to that effect has to be set aside. The court cannot compel a person to do the impossible. He said that in case the bus cannot be had by the plaintiff, all that he could have would be the appropriate money value of the chattel he had lost, and this value he would have to prove himself. No document was forthcoming in this regard either, and not even the insurance papers were produced by the plaintiff. 11. In supporting his point about the difference between the plaint returned and the plaint filed he relied on Order 7 Rule 10 of the Code of Civil Procedure. Reference was also made to the case of St. George Shipping, a Single Bench judgment, reported at AIR 1999 Bombay 280. In challenging the continuously running awarded amount of Rs. 3,000/- per day, Mr. Mitra submitted that this would aggregate an astronomical figure in the 10 years which have passed since 3.3.1993. If 90,000 rupees is taken to be the monthly decree on this count then the annual decree is somewhat like Rs. 10,00,000/- and the damages would come to rupees one crore. In highlighting the absurdity of the situation, he relied on the judgment of the Court of Appeal in the case of B. Sunley & Co., reported at (1940) 2 All England Reports page 97. In that case the delivery of a machine had been delayed by about a week and the Trial Judge had ordered a payment of £ 250 as damages. The following passage was read out by Mr. Mitra and it can be conveniently quoted hereunder: "In these circumstances, the plaintiffs really failed to prove any facts on which their damages could be estimated. The following passage was read out by Mr. Mitra and it can be conveniently quoted hereunder: "In these circumstances, the plaintiffs really failed to prove any facts on which their damages could be estimated. In the absence of evidence, they relied on the law, and the judge unfortunately succumbed to the invitation to discuss at great length a variety of cases like The Mediana [(1990) A.C. 1131. Those cases establish that, when a plaintiff is deprived of the use of a chattel which he does not use for making profit, he is not be debarred from claiming as damages what during that time its use would have been worth to him, had he not been prevented from using it. Those cases, however, are no authority for the proposition that, if the owner of a profit earning chattel does not prove the loss he has sustained, the judge may make a fortuitous guess and award him some arbitrary sum. The judgment of the judge is lengthy, and is occupied with an elaborate discussion of these cases, which seem to us to be quite irrelevant, except on the broad principle stated by us, which is too well-known to need citation of authorities. His finding as to damages is in these terms, at p.654: ....'upon the whole, I feel that the lump sum figure at which I ought to arrive is £ 250. That is a lump sum figure arrived at in consideration of all the circumstances, and any attempts to analyse it by an analytical process will, I think, be deemed to failure'. When the judge warns us against the attempt to discover how he arrived at this figure, it is perhaps rash to act against his warning, but, as £ 250 per week is £ 13,000 per annum, it is at least starting to find that a machine which cost £ 4,500, and was employed as only one part of the plaint on a contrad to earn £ 23,385, in all was earning £ 13,000 per annum profit, whether net or gross, or that in its 3 years of life this machine costing £ 4,500 would earn £ 39,000. Upon the evidence as to the damage sustained by the plaintiffs by this one week's delay, we are satisfied that the sum of £ 250 is wholly erroneous." 12. Upon the evidence as to the damage sustained by the plaintiffs by this one week's delay, we are satisfied that the sum of £ 250 is wholly erroneous." 12. He also relied on paragraph 1779 of Me Gregor on Damages, 15th Edition and the said short paragraph is set out below: "The plaintiff has the burden of proving both the facts and the amount of damage before he can recover substantial damages. This follows from the general rule that the burden of proving a fact is upon him who alleges it and not upon him who denies it, so that where a given allegation forms an essential part of a person's case the proof of such allegation falls on him. Even if the defendant fails to deny the allegations of damages or suffers default, the plaintiff must still prove his loss." 13. Relying on the above passage he submitted that the plaintiff was bound to prove an acceptable figure as damages to be awarded by the court. Even if the demurrage had been awarded for a reasonable period, and not continuously until payment, like award of interest, even then, it was for the plaintiff to prove in a satisfactory way the reasonable and acceptable figure; it was no part of the duty of the appellant/defendant to prove anything in this regard at all. 14. On behalf of the respondent it was submitted that the facts of the case show that the plaintiffs bus was admittedly ruined because of the negligence of the defendant. Further, because of non-delivery on the scheduled date or on any date reasonably proximate to it, the plaintiff has suffered loss in his transport business; the bus was plying between Siliguri and Islampur when it was delivered for overhauling of its engine. 15. As regards the point of the plaint filed in Alipore not being identical to the plaint returned by the High Court, the respondent cited an interesting Madras Division Bench judgment, reported at AIR 1953 Madras, page 897. The judgment was delivered by Rajamannar, C.J., in the case of R.P.C. Corner. 15. As regards the point of the plaint filed in Alipore not being identical to the plaint returned by the High Court, the respondent cited an interesting Madras Division Bench judgment, reported at AIR 1953 Madras, page 897. The judgment was delivered by Rajamannar, C.J., in the case of R.P.C. Corner. Paragraphs 11, 12 and 13 of the said judgment are set out and can be read with profit (with respect) in this regard: "(11) Assuming that it is necessary to preserve carefully the proceedings taken in a Court of Record, we see no reason why the suit or should loss the benefit of the court fee stamps which he had affixed to the plaint filed by him in a wrong court. A memorandum of appeal filed in this court can certainly be returned if it is found that this court has no jurisdiction to entertain the appeal. Such a memorandum is never retained on the filed of this court, in spite of the fact that this court is a court of record. Logically there should not be any difference between a Memorandum of appeal filed on the Appellate Side of this court and a plaint filed on the Original Side of this Court. Apparently the practice on the Original Side of the Bombay High Court had changed since the day of -'8 Bom. 380' (F), because we find in 'Sewaran Gokaldas vs. Bajrangdat Hardwar, AIR 1916 Bom. 227 (G), Macleod J., sitting on the Original Side directing a plaint to be returned to the plaintiffs for presentation in the proper court after holding that the High Court had no jurisdiction. (12) After giving my full consideration to the matter, I am of the opinion that it is open to this court to direct the plaint to be returned to the plaintiff for presentation to the proper court when this court finds that it was no jurisdiction to entertain it. (13) For the purpose, however, of preserving the proceedings taken in this court a verified copy of the plaint can be made and filed in place of the original which is returned. I accordingly direct the plaint in this case to be returned after a copy of the plaint has been made and filed in place of the original." 16. On behalf of the respondent, Md. I accordingly direct the plaint in this case to be returned after a copy of the plaint has been made and filed in place of the original." 16. On behalf of the respondent, Md. Safiulla Mondal, also relied on a Single Bench judgment in the case of K. Ramakrishna Pillai, reported at AIR 1974 Madras 33, for the proposition that if an article is lost, then the plaintiff would normally be entitled to the replacement cost of it. Certain tyres were involved in that case. However, it was not disputed in that case that the plaintiff was entitled to new tyres by way of replacement. In this case it is not admitted at all that the plaintiff is entitled to a new bus. On the other hand, it was submitted that the bus was of 1980 make and it needed engine overhauling; thus it was in no manner similar to a new bus. 17. In regard to the point of the plaint, we are of the opinion that the provisions of the Civil Procedure Code relating to return of plaint cannot •be applied in terms to an order for revocation under clause 12. Although Justice Mitra had ordered return of the plaint, as had been ordered in the Bombay case referred to the Rajamannar, C.J., also, the Original Rules make no provision for return of a plaint subsequent to revocation of leave under clause 12. 18. The advantage gained by the plaintiff in having a plaint returned is that he save the court fees already paid on it. The 12th clause of the charter of our High Court, however, came before the advent of court fees in an important way, this problem was thus not adverted to either in the clause or in the Rules of the High Court. Also, since we are talking of somewhat olden days, it would not be thought proper in the situation then prevailing, that a plaint filed in the High Court be taken out and sent to a District Court. 19. We are of the opinion that there is no necessity in this matter for return of the plaint itself after leave under clause 12 has been revoked. 19. We are of the opinion that there is no necessity in this matter for return of the plaint itself after leave under clause 12 has been revoked. Once the revocation has taken place, a suit substantially of the same nature as had been filed here might be filed in the appropriate forum; and when that is done, the forum shall give credit to the plaintiff for the court fees already paid in the High Court suit even if the new plaint does not contain any effaced judicial stamps upon its face. 20. On that basis the lower court has quite right in not insisting upon any additional court fees. It was also quite right in not rejecting the plaint, merely because it was not absolutely identical to the plaint filed in the High Court. 21. Regarding the decree directing specific return of the plaintiffs bus itself we are of the opinion that that part of the decree is unsound since it compels one to perform an impossible act. The court cannot compel a person to do the impossible because that would necessarily mean that the person would have to suffer for the consequences of breaking a court's solemn decree and order without . having any remedy in that regard. The court does not send a person to jail willy nilly like this, nor cause a company to come under the consequences of a breach of a court's mandatory direction in this manner. 22. Regarding the timeless running of damages at the rate ofRs.3,000/- per day, we are of the opinion that this part of the decree is also bad. The damages cannot run for ever. The correct way of awarding such damages would be to award the appropriately assessed amount, only for that reasonable period, during which the plaintiff has been assessed to have lost his business, as he would need that time to obtain a replacement bus. No attempt was made in this regard to assess such a period necessary for putting a new bus on the route. We mean 'new' not in the sense of left- the-showroom', but in the sense of 'fresh'. 23. As regard the assessment of the daily figure of loss, we are of the opinion that award of the entire gross amount of Rs. 3,000/- was by no means correct; even the plaintiffs oral evidence gave the gross amount it self as Rs. We mean 'new' not in the sense of left- the-showroom', but in the sense of 'fresh'. 23. As regard the assessment of the daily figure of loss, we are of the opinion that award of the entire gross amount of Rs. 3,000/- was by no means correct; even the plaintiffs oral evidence gave the gross amount it self as Rs. 2,400/- only per day. A sizeable amount of that would have to be knocked off as expenses for earning that sum. This exercise was not performed by the lower court at all. 24. Although the Alipore Court should have refused the plaintiff the return of bus itself, it had every right to award the plaintiff the replacement cost of the bus, although not the value of a new bus. What this replacement cost of second hand and similarly aged bus would be, would have to be proved by the plaintiff. This task was not performed by him. 25. On the basis of the 'above discussion, a legal and technical decree would require either a dismissal of the plaintiffs suit or an order of remand by us. However, we are unable to pass such an harsh order after prosecution of the suit by the plaintiff for so long. It was pointedly submitted, and the submission is right, that the bus was lost. It was also pointedly submitted that the bus was earning profit, and that is why it was being run. This submission is also right. Unfortunately, the proof of the case leaves much to be desired. In spite of the warning of the Court of Appeal given in Sunley's case [(1940) 2 All England Reports] above, we would rather pass a rough and ready decree supported not so much by the law, as a sense of justice, rather than wash our hands clean and send the plaintiff away empty handed. 26. A sum of Rs. 10,00,000/- remains guarantted to the credit of the appeal, the guarantee is with the learned Registrar General, Appellate Side. The decree under appeal is set aside. The plaintiff/respondent shall be entitled to a decree of a principal sum of Rs. 6,00,000/- and interest thereon @ 6% per annum from today. 26. A sum of Rs. 10,00,000/- remains guarantted to the credit of the appeal, the guarantee is with the learned Registrar General, Appellate Side. The decree under appeal is set aside. The plaintiff/respondent shall be entitled to a decree of a principal sum of Rs. 6,00,000/- and interest thereon @ 6% per annum from today. The learned Registrar General, Appellate Side, is directed to encash the guarantee furnished, and he will pay to the plaintiff or his authorised representative the above decreed amount and return the balance to the appellant or the appellant's authorised representative. If the decreed sum is not accepted by the plaintiff or the plaintiffs authorised representative, then and in that event, the learned Registrar General will return the entire guaranteed amount to the appellant after encashment of the guarantee. 27. The appeal stands disposed of. 28. There will be no order as to costs. 29. Decree be drawn up expeditiously. 30. Xerox certified copy of this judgment, if applied for, be supplied to the learned counsel appearing for the parties expeditiously. Appeal disposed of with "direction.