JUDGMENT Hon’ble Rajesh Tandon, J. Heard Sri Sarvesh Agarwal, counsel for the appellant and none for the respondent. 2. By the present Second Appeal filed under Section 100 of the Code of Civil Procedure, appellant has prayed for setting aside the judgment and decree dated 9.5.2003 passed by the District Judge, Almora in Civil appeal No. 4 of 2003 arising out of judgment and decree dated 1.6.2001 passed by the Civil Judge (Junior Division), Ranikhet, District Almora in Civil Suit No. 6 of 1998 Gopal Mehrotra Vs. Lakshman Singh. 3. Brifly stated, a suit was filed by the plaintiff/appellant being Civil Suit No. 6 of 1998 Gopal Mehrotra Vs. Lakshman Singh praying to the following effect : “(17) That the plaintiff claims :- (A) That a decree for specific performance of the agreement dated 9.7.1993 be passed in favour of the plaintiff against the defendant to get the prospecting licence/Mining Lease transferred to the plaintiff within such time as the Court may grant and the transfer of Prospecting Licence/Mining Lease be executed by the Court in favour of the plaintiff. That costs of the suit be awarded to the plaintiff against the defendant. (B) That an ad interim injunction against the defendant may be passed restraining perform selling, shifting, despecting for testing or any other purpose or otherwise transporting the soapstone mined or extracted from the mine site in village Kidai, Patti Nakuri, Tehsil Bageshwar, District Bageshwar. (C) That the defendant may be directed to sell the soap stone mined or to be mined to the plaintiff only. (D) That any other relief which the Court deems fit and proper in the circumstances of the case be also awarded to the plaintiff against the defendant.” 4. According to the plaint averments, the defendant had applied for grant of prospecting licence/Mining Lease for mining of soap in Village Kidai, Patti Nakuri. It was expected that the prospecting licence will be granted to the defendant but the defendant was not in a situation to meet various expenses on different heads for getting the prospecting licence. The plaintiff had been dealing in soap stone and had also been guiding people in the mining of soap stone. It was expected that the prospecting licence will be granted to the defendant but the defendant was not in a situation to meet various expenses on different heads for getting the prospecting licence. The plaintiff had been dealing in soap stone and had also been guiding people in the mining of soap stone. The defendant approached the plaintiff at Ranikhet to assist him in starting mining operations, but since the financial condition of the defendant was not sound and he was unable to meet the expenses of getting the prospecting licence approved and to do other matters relating to the grant of mining lease, the plaintiff on the proposal of the defendant agreed to certain terms on 9.7.1993 which were recduced to in writing and the agreement was also registered in the office of Sub Registrar, Ranikhet on 9.7.1993. With the efforts of the plaintiff, the prospecting licence was granted to the defendant on 14.9.1994 and was registered in the office of Sub-Registrat on 2.6.1995. In performance of his part of the agreement the plaintiff got a mining plan prepared as required by law. The plaintiff has incurred an amount of Rs. 72,500/- in preparation of mining plan. Further, the defendant was paid a sum of Rs. 10,000/- besides Rs. 5,000/- earlier paid towards balance consideration. The plaintiff also incurred heavy expenses in traveling and obtaining prospecting licence. The plaintiff asked the defendant to transfer the prospecting licence in his favour, but the defendant avoided the same. Since the relations between the parties were very cordial, the defendant executed a power of attorney in his favour on 25.5.1996 regarding completion of various formalities in formation of the said company. The defendant having refused to get the prospecting licence/Mining Lease transferred in favour of the plaintiff as well as also refused to transfer the quantity of the soap mined to the plaintiff and has also revoked the power of attorney also, the present suit was filed by the plaintiff. Plaintiff has also come to know that the Government is going to grant the Mining Lease in favour of the defendant. The refusal by the defendant to transfer the prospecting licence/mining lease in favour of the plaintiff and his refusal to sell the mined material to the plaintiff is causing irreparable loss to the plaintiff. 5. No written statement has been filed by the defendants to contest the plaint. 6. The refusal by the defendant to transfer the prospecting licence/mining lease in favour of the plaintiff and his refusal to sell the mined material to the plaintiff is causing irreparable loss to the plaintiff. 5. No written statement has been filed by the defendants to contest the plaint. 6. Towards the documentary evidence, the plaintiff has filed per list 10 Ga certified copy of the agreement dated 9.7.1993 Ppaer No. 11 Ga and per list 51 Ga Original Prospecting Licence along with map Paper No. 52 Ga/1 to 52 Ga/30 and 53 Ga. Towards the oral evidence, the plaintiff has been examined as P.W.1. 7. After taking into consideration the documents and evidence filed by the plaintiff, the trial Court has recorded a finding that the original of the agreement has not been filed for compliance of which, the plaintiff has filed the suit, but by list 10 Ga certified copy of the agreement has been filed. 7. After taking into consideration the documents and evidence filed by the plaintiff, the trial Court has recorded a finding that the original of the agreement has not been filed for compliance of which, the plaintiff has filed the suit, but by list 10 Ga certified copy of the agreement has been filed. Further the trial Court has recorded a finding to the following effect : ßHkkjrh; lk{; vf/kfu;e dh /kkjk 61 ds vuqlkj fdlh nLrkost dh vUroZLrq izkFkfed vFkok f}fr;d lk{; ls fl) dh tk ldrh gS ftl ij izkFkfed lk{; nLrkost Lo;a gksrk gSA Hkkjrh; lk{; vf/kfu;e esa of.kZr fd;s x;s izko/kkuksa ds vfrfjDr izkFkfed lk{; }kjk gh fl) fd;k tkuk pkfg;sA rFkk /kkjk 65 Hkkjrh; lk{; vf/kfu;e mu fLFkfr;ksa dks of.kZr djrh gS tgka ij fdlh nLrkost ds lUnHkZ esa f}rh;d lk{; fn;k tk ldrk gksA orZeku ekeys esa ftl nLrkost ds vk/kkj ij oknh izLrqr okn dks izLrqr dj jgk gS] og nLrkost mlds }kjk ewy :i ls nkf[ky ugha fd;k x;k gS vkSj ek= mldh izfrfyfi 11 x U;k;ky; esa izLrqr dh x;h gSA iwoZ esa of.kZr fofgr ifjfLFkfr;ksa ds vuq:i U;k;ky; f}rh;d lk{; ij rHkh fopkj dj ldrh gS tcfd /kkjk 65 ds vUrxZr izkFkfed lk{; miyC/k ugah gksus dk vk/kkj LFkkfir gksrk gksA orZeku okn esa ,slk dksbZ vk/kkj oknh us fl) ugha fd;k gS tks /kkjk 65 ds vUrxZr mldks f}rh;d lk{; izLrqr djus dh vuqefr fn;s tkus dk vk/kkj LFkkfir djrk gksA ,slh voLFkk esa oknh ftl nLrkost ds vk/kkj ij ;g okn izLrqr dj jgk gS] mlds }kjk mDr nLrkost dks U;k;ky; ds le{k izLrqr ugah fd;k x;k gS vkSj tks nLrkost izLrqr fd;k x;k gS og f}rh;d lk{; gSA /kkjk 65 ds vUrxZr fdlh ifjfLFkfr dks fl) ugha fd;s tkus ds dkj.k lk{; xzká ugha gSA ,slh voLFkk esa oknh ;g fl) djus esa vlQy jgrk gS fd mlds o izfroknh ds chp esa fnukad 9-7-93 dks dksbZ bl vk”k; dk bdjkjukek gqvk Fkk fd oknh izfroknh dks izksliSfDVax ykbZlsal@ekbfuax ykbZlsal izkIr djus esa enn djsxk vkSj mDr ykbZlsal izkIr gksus ds ckn izfroknh mls oknh ds i{k esa ,d ekg ds Hkhrj fu;e /kujkf”k ij vUrfje djus ds fy;s dk;Zokgh djsxkA D;ksafd fdlh nLrkost dh vUroZLrq /kkjk 61 ds vUrxZr ek= nLrkost ls gh fl) dh tk ldrh gS vr% oknh dk okn lO;; [kkfjt fd;s tkus ;ksX; gSAÞ 8. As will appear from the aforesaid, the trial Court has dismissed the suit of the plaintiff ex parte in absence of the defendant on merits. 9. Aggrieved by the said order, the plaintiff moved an appeal being Civil Appeal No. 4 of 2003. The appellate Court has also dismissed the appeal. In paragraph 8 of the judgment, the lower appellate Court has observed as under : “8. Moreover, the alleged agreement for transfer of prospecting lease/mining lease agreement by the Government to the defendant respondents cannot be enforced in the law. It is against the provision of Contract Act. No licence for particular purpose granted by Government can be transferred to the another person. Because, if a person is granted a licence by the Government for any purpose, is a personal act and nobody else can do the work on that licence. If the plaintiff has come into agreement with the defendant to invest the money for work under the licence granted by the Government to the defendant then he may claim profit and loss and damages but no decree for Specific Performance can be granted by Government can be transferred to the another person. Becuase, if a person is granted in favour of the plaintiff – appellant. If the plaintiff – appellant has agreed to do the work and invest the money, then he may claim from the defendant – respondent his invstment and profit, if any in proper suit. On this count also, the suit is not maintainable.” 10. As will appear from above, the lower appellate Court has recorded the finding that the said agreement cannot be enforced as it is against the provisions of the Contract Act and no licence for particular purpose granted by Government can be transferred to another person. 11. Considered the aforesaid ground on which the appeal has been dismissed. In view of the findings recorded by the appellate Court, the plaintiff is permitted to implead the State of Uttarakhand as a party and thereafter, the matter may be decided on merits after serving the notice upon the respondents. 12. The appeal is, therefore, allowed. The matter is remanded to the trial Court for deciding afresh expeditiously. 13. No order as to costs.