Satyadhyan Ghosal & Ors Vs. Sm.
Deorajin Debi & ANR  INSC 81 (20 April 1960)
GUPTA, K.C. DAS GAJENDRAGADKAR, P.B.
CITATION: 1960 AIR 941 1960 SCR (3) 590
CITATOR INFO :
R 1964 SC 993 (10,11) RF 1967 SC1182 (8) F
1969 SC 560 (13) R 1969 SC 764 (7) R 1972 SC1201 (15) RF 1973 SC 313 (9) R 1976
SC1645 (23) R 1979 SC 102 (14) R 1979 SC1436 (3) RF 1981 SC 707 (5) RF 1987
SC1145 (1) E 1988 SC1531 (63)
Remand order-Interlocutory-Whether can be
challenged in appeal from final decree or order-Res judicata-The Calcutta Thika
Tenancy Act (W.B. Act II of 1949), S. 28, The Calcutta Thika Tenancy
(Amendment) Act, 1953 (W.B. Act VI of 1953), S. 1(2) The Calcutta Thika Tenancy
(Amendment) Ordinance, 1952 (West Bengal Ordinance No. XV of 152).
The Calcutta Thika Tenancy Act, 1949, came
into force before the appellant-landlords could obtain possession in execution
of their decree for ejectment against the respondenttenants. Failing to get the
decree set aside under 0. 9, r. 13 of the Code of Civil Procedure the tenants
made an application under S. 28 of the said Act praying that the decree against
them be set aside on the ground that they were Thika tenants, but the Munsif
holding that they were not Thika tenants dismissed their application. While an
application by the tenants under s. 115 of the Code of Civil Procedure against
the Munsif's order was pending in the High Court the Calcutta Thika Tenancy
Ordinance, 1952, and the Calcutta Thika Tenancy (Amendment) Act, 1953, came
into force. The 1053 Amendment Act omitted S. 28 of the Original Act. The High
Court after considering the effect of S. 1(2) of the Amendment Act held that it
did not affect the operation of S. 28 of the Original Act which was applicable
to these proceedings. The High Court also found that the tenants were Thika
Tenants 591 and remanded the case to the Munsif for disposal according to law
whereupon the Munsif rescinded the decree. On an application by the landlord
under s. 115 of the Code of Civil Procedure against the order of the Munsif
rescinding the decree the High Court held that the question of applicability of
S. 28 was res judicata between the parties and could not be raised again before
the High Court and dismissed the landlord's application. On appeal by the
landlord by special leave the respondent contended that the appellant was
barred by the principle of res judicata from raising before this Court the
question whether on the enactment of the Thika Tenancy Amendment Act, 1953, s.
28 of the Original Act survives or not in respect of proceedings pending on the
date of the commencement of the Thika Tenancy Ordinance, 1952 :
Held, that the appellants were not precluded
from raising before this Court the question that S. 28 of the Original Thika
Tenancy Act was not available to the tenants after the Thika Tenancy Amendment
Act came into force merely because they had not appealed from the High Court's
order of remand.
An interlocutory order which did not
terminate the proceedings and which had not been appealed from either because
no appeal lay or even though an appeal lay an appeal was not taken, could be
challenged in an appeal from the final decree or order.
Maharaja Mohesur Singh v. The Bengal
Government, (1859) 7 M.I.A. 283; Forbes v. Amecroonissa Begum, (1865) 10 M.I.A.
340 and Sheonath v. Ramnath, (1865) 10 M.I.A.
Ramkripal Shukul v. Mst. Rup Kuari, (1883)
L.R. 11 I.A. 37, Bani Ram and Any. v. Nanhu Mal, (1884) L.R. 11 I.A. 181 and
Hook v. Administrator General of Bengal and Oys., (1921) L.R. 48 I.A. 187,
Section 28 of the Calcutta Thika Tenancy Act,
1949, after its omission by the amending Act was not available in respect of
proceedings pending on the date of the commencement of the Thika Tenancy
Ordinance of 1952.
Mahadeolal Kanodia v. The Administrator
General of West Bengal, [196O] 3 S.C.R. 578 followed.
CIVIL APPELLATE, JURISDICTION: Civil Appeal
Appeal by special leave from the judgment and
order dated April 18, 1958, of the Calcutta High Court in Civil Rule No. 1487
of 1955, arising out of the judgment and order dated February 12, 1955, of the
Munsif Second Court, Alipore, in Misc. Case No. 342/ 1949.
Nalini Banjan Bhattacharjee and R. R.
Biswa,3, for the appellants.
D.N. Mukherjee, for the respondents.
592 1960. April 20. The Judgment of the
'Court was delivered by DAS GUPTA, J.-This appeal is by the landlords who
having obtained a decree for ejectment against the tenants, Deorajin Debi and
her minor son, on February 10, 1949, have not yet been able to get possession
in execution thereof Soon after the decree was made the Calcutta Thika Tenancy
Act, 1949, came on the statute book. On March 3, 1949, the tenants made an
application under Or. 9, r. 13 of the Code of Civil Procedure for having the
decree set aside. That application was dismissed on July 16, 1949. On September
9, 1949, an application was made by the tenants under S. 28 of the Calcutta
Thika Tenancy Act alleging that they were Thika tenants and praying that the decree
made against them on February 2, 1949, may be rescinded. This Application was
resisted by the landlords, the decree-holders, and on Novemer 12, 19519 the
Munsif holding that the applicants were not Thika Tenants within the meaning of
the Thika Tenancy Act and accordingly the decree was not liable to be rescinded
dismissed the application.
Against this order the tenants moved the High
Court of Calcutta under S. 115 of the Code of Civil Procedure. By the time the
Revision Application was taken up for hearing the Calcutta Thika Tenancy
Ordinance had come into force on October 21, 1952, and the Calcutta Thika
Tenancy (Amendment) Act, 1953, had come into force on March 14, 1953.
The 1953 Amendment Act inter alia omitted S.
28 of the original Act. In order to decide therefore whether the application
under S. 28 was still alive the High Court had to consider the effect of S. 1
(2) of the Calcutta Thika Tenancy Amendment Act which provided that the
provisions of the Calcutta Thika Tenancy Act. 1949 as amended by the 1953 Act
shall apply and be deemed to have always applied to proceedings pending on the
date of the commencement of the Calcutta Thika Tenancy Ordinance of 1952. The
learned judges of the High Court held that S. 1(2) of the Thika Tenancy Amendment
Act did not affect the operation of S. 28 of the original Act to these
proceedings and disposed of these applications on the 593 basis that s. 28 was
applicable. The High Court also held that in view of the amended definition of
the term " Thika tenant " and the evidence which had been recorded by
the Munsif the petitioners must be found to be Thika tenants.
Accordingly they allowed the application for
revision, set aside the order of the Munsif by which he had dismissed the
application under s. 28 and remanded the case to the Munsif's Court for
disposal in accordance with law. After remand the Munsif rescinded the decree.
The landlords' application under s. 115 of the Code of Civil Procedure against
the Munsif's order was rejected by the High Court.
The attempt of the landlords to raise before
the High Court again the question of the applicability of s. 28 was
unsuccessful, the learned judge who heard the matter in the High Court being of
opinion that this question as between these parties was res judicata.
Against this order of the High Court the
present appeal has been preferred by the landlords on the strength of special
leave granted by this Court on November 16,1956.
On behalf of the appellant it is urged that
on a proper interpretation of s. 1 (2) of the Calcutta Thika Tenancy Amendment
Act, 1953, it should be held that s. 28 of the original Act cannot, after the
amending Act came into force, be applied to any proceedings pending oil the
date of the commencement of the Calcutta Thika Tenancy Ordinance, 1952.
This question has been considered by us in
Mahadeolal Kanodia v. The Administrator-General of West Bengal (1) in which
judgment has been delivered to-day, wherein we have decided that s. 28 of the
original Act is not applicable to such proceedings. If therefore this argument
is available to the appellant the appeal will succeed as in that view of the
law no relief under s. 28 of the original Act is available to the tenants and
the order made by the Munsif on December 12, 1955, rescinding the decree for
ejectment must be set aside.
The respondent contends however that the
appellant is barred by the principle of res judicata from raising before this
Court the question whether on the (1) [196O] 3 S.C.R. 578.
594 enactment of the Thika Tenancy Amendment
Act, 1953, s. 28 of the original Act survives or not in respect of proceedings
pending on the date of the commencement of the Thika Tenancy Ordinance, 1952.
He has relied in support of this contention on the decision of the Privy
Council in Ram Kripal Shukul v. Muss Umat Rup Kuari (1).
The principle of res judicata is based on the
need of giving a finality to judicial decisions. What it says is that once a
res is judicata, it shall not be adjudged again.
Primarily it applies as between past litigation
and future litigation. When a matter-whether on a question of fact or on a
question of law-has been decided between two parties in one suit or proceeding
and the decision is final, either because no appeal was taken to a higher court
or because the appeal was dismissed, or no appeal lies, neither party will be
allowed in a future suit or proceeding between the same parties to canvass the
matter again. This principle of res judicata is embodied in relation to suits
in s. 11 of the Code of Civil Procedure; but even where s. 11 does not apply,
the principle of res judicata has been applied by courts for the purpose of
achieving finality in litigation.
The result of this is that the original court
as well as any higher court must in any future litigation proceed on the basis
that the previous decision was correct.
The principle of res judicata applies also as
between two stages in the same litigation to this extent that a court, whether
the trial court or a higher court having at an earlier stage decided a matter
in one way will not allow the parties to re-agitate the matter again at a
subsequent stage of the same proceedings. Does this however mean that because
at an earlier stage of the litigation a court has decided an interlocutory
matter in one way and no appeal has been taken therefrom or no appeal did lie,
a higher court cannot at a later stage of the same litigation consider the
matter again ? Dealing with this question almost a century ago the Privy
Council in Maharaja Moheshur Singh v. The Bengal Government (5) held that it is
open to the appellate court which had not earlier considered the matter to
investigate in an appeal from the final decision (1)  I.R 11 I.A 37.
(2) 7 M.I.A. 283.
595 grievances of a party in respect of an
That case referred to the question of
assessment of revenue on lands. On December 6, 1841, judgment was pronounced by
the Special Commissioner to the effect that 3,513 beghas of land alone were
assessable, and that the collections made by the Government on the other lands
should be restored to the possessors. This judgment was affirmed by another
Special Commissioner on March 8, 1842. On September 21, 1847, a petition for
review on behalf of the Government of Bengal was presented to another Special
Commissioner. That petition for review was granted. After due hearing the
judgment of March 8, 1842, was reversed. The question arose before the Privy
Council whether the review had been granted in conformity with the Regulations
existing at that time with respect to the granting a review. It was urged
however on behalf of the Government of Bengal that it was then too late to
impugn the regularity of the proceeding to grant the review and that if the
appellant deemed himself aggrieved by it, he ought to have appealed at the
time, and that it was too late to do so after a decision had been pronounced
Dealing with this objection the Privy Council
observed :" We are of opinion that this objection cannot be sustained.
We are not aware of any law or regulation
prevailing in India which renders it imperative upon the suitor to appeal from
every interlocutory order by which be may conceive himself aggrieved, under the
penalty, if he does not so do, of forfeiting for ever the benefit of the consideration
of the appellate court. No authority or precedent has been cited in support of
such a proposition, and we cannot conceive that anything would be more
detrimental to the expeditious administration of justice than the establishment
of a rule which would impose upon the suitor the necessity of so appealing;
whereby on the one hand he might be harassed with endless expense and delay,
and on the other inflict upon his opponent similar calamities, We believe there
have been 596 very many cases before this Tribunal in which their Lordships
have deemed it to be their duty to correct erroneous interlocutory orders,
though not brought under their consideration until the whole cause had been
decided, and brought hither by appeal for adjudication." This view was
re-affirmed by the Privy Council in Forbes v.
Ameeroonissa Begum (1). A decree for
possession with mesne profits having been made against the defendant by the
Civil Judge, Purneeha, on December 18, 1834, the defendant appealed to the
Sadar Diwani Adalat. That Court by its order dated January 22, 1857, held that
the Civil Judge had been wrong in decreeing the mesne profits and further that
the plaintiff was bound before he was entitled to have his conditional sale
made absolute to render certain accounts.
Accordingly the Sadar Diwani Adalat remanded
the case in order that the judge might call upon the plaintiff for his accounts
and then decide the case in the light of the remarks made by the Adalat. After
the case went back the plaintiff produced accounts but the judge held that they
were insufficient and dismissed the suit. An appeal was taken against that
decree of dismissal to the Sadar Diwani Adalat but the appeal was unsuccessful;
a later prayer for review was also rejected. On behalf of the appellant it was
contended before the Privy Council that the Sadar Diwani Adalat was wrong in
requiring the appellant to produce his accounts. In order however that this
question could be raised, it was necessary to decide, whether if the Sadar
Diwani Adalat was wrong in remanding the case for re-trial, the appellant was
bound by that decree he not having appealed therefrom. Their Lordships of the
Privy Council pointed out that the order of remand was an interlocutory order
and that it did not purport to dispose of the case and consequently upon the
principle laid down by the Privy Council in Maharaja Moheshur Singh v. The
Gavernment of Bengal (supra), the appellant was not precluded from insisting
that the remand for the production of the accounts was erroneous or that the
cause should have been decided in (1)  10 M.I.A. 340.
597 his favour, notwithstanding the
non-production of the accounts. Their Lordships also mentioned the fact that
the learned judges of the Sadar Court also treated the latter point as still
open to the appellant, when considering his appeal against the decree of
dismissal passed after remand.
The principle laid down in Moheshur Singh's
Case (supra) was also acted upon by the Privy Council in Sheonath v. Ramnath(1).
That litigation was commenced Ramnath by a suit in the Court of the Civil
Judge, Lucknow, seeking a general account and partition. The plaint mentioned
the execution of some releases described as (Farighkuttees) but alleged that
there had been no partition as between the parties as stated in them, that the
partition was intended to take effect after the settlement of accounts when the
Farighkuttees were to have been registered and that in the meantime they bad
remained with the appellant as incomplete instruments. The Trial Judge held
however that the Farighkuttees had been executed on the footing of actual
partition and division of the joint property, that these had been executed
without taint of fraud and dismissed the suit.
An appeal was taken to the Judicial Commissioner
he affirmed the Civil Judge's decision on all points adding however that "
there was one account between the parties still unadjusted, viz., the division
of the outstanding which was left open at the time of the division of the
assets." In this view he remanded the case to the Judge to decide what sum
should be awarded to the plaintiff in satisfaction of all claims on this
account and directed that if possible a decision should be obtained from the
arbitrators previously appointed by the parties. After remand the Civil Judge
referred the question involved to certain arbitrators but the defendant did not
acquiesce inthis order and petitioned the Judicial Commissioner against it,
stating that he objected to the arbitrators to whom the Civil Judge had referred
the case, and requesting that other arbitrators might be appointed. This
objection was overruled by the Judicial Commissioner, and the request was
Ultimately two separate decrees (1)  10
78 598 were made by the Civil Judge, one on
the 4th September as regards part of the claim and the other on 22nd December
as regards another part. On appeal both these decrees were affirmed by the
Judicial Commissioner. It was against this decision of the Judicial
Commissioner that the defendant appealed to the Privy Council. Two points were
raised before the Privy Council. The first was that it was not competent to the
Judicial Commissioner except with the consent of both parties, to vary, as he
did vary, by his order of May 15, 1862, the rights of the parties under the
Farighkuttees and to impose on the defendant an obligation of purchasing the
plaintiff's interests in the outstanding on a rough estimate of its value; the
other point raised was that the nomination of the particular arbitrator by the
Judge without the consent and against the repeated protests of the appellant
was altogether irregular, and that the award was therefore not binding upon
him. It has to be noticed that the defendant had not appealed against the
Judicial Commissioner's order of May 15, 1862, nor had he appealed against the
Judicial Commissioner's later order rejecting the defendant's petition that he
objected to the arbitrators to whom the Civil Judge bad referred the case and
that other arbitrators might be selected by the parties.
In spite of these facts the Privy Council
held that both these points were open to the appellant observing:" That
both points are open to the appellant, although he has in terms appealed only
against the final decision of the Civil Judge and the confirmation of it by the
Judicial Commissioner, is, we think, established by the case of Moheshur Singh
v. The Government of Bengal. The appeal is, in effect, to set aside an Award
which the appellant contends is not binding upon him. And in order to do this
he was not bound to appeal against every interlocutory order which was a step
in the procedure that led up to the Award." There can be little doubt
about the salutary effect of the rule as laid down in the above cases on the
administration of justice. The very fact that in future litigation it will not
be open to either of the 599 parties to challenge the correctness of the
decision on a matter finally decided in a past litigation makes it, important
that in the earlier litigation the decision must be final in the strict sense
of the term. When a court has decided the matter it is certainly final as
regards that court. Should it always be treated as final in later stages of the
proceeding in a higher court which had not considered it at all merely on the
ground that no appeal lay or no appeal was preferred? As was pointed out by the
Privy Council in Moheshur Singh's Case (supra) the effect of the rule that at
every stage of the litigation a decision not appealed from must be held to be
finally decided even in respect of the superior courts, will put on every
litigant against whom an interlocutory order is decided, the burden of running
to the higher courts for redress of the grievances, even though it may very
well be that though the interlocutory order is against him, the final order
will be in his favour and so it may not be necessary for him to go to the
appeal court at all. Apart from the inevitable delay in the progress of the
litigation that such a rule would cause, the interests of the other party to
the litigation would also generally suffer by such repeated recourse to the
higher courts in respect of every interlocutory order alleged to have been
wrongly made. It is in recognition of the importance of preventing this
mischief that the Legislature included in the Code of Civil Procedure from the
very beginning a provision that in an appeal from a decree it will be open to a
party to challenge the correctness of any interlocutory order which had not
been appealed from but which has affected the decision of the case.
In the Code of 1859 s. 363 after laying down
that no appeal shall lie from any order passed in the course of a suit and
relating thereto prior to a decree provided " but if the decree be
appealed against, any error, defect or irregularity in any such order affecting
the merits of the case or the jurisdiction of the court may be set forth as a
ground of objection in the memorandum of appeal." When the Code of 1877
made provisions in Chapter 43 for appeal against certain orders, s. 591 thereof
600 provided " Except as provided in this chapter, no appeal shall lie
from any order passed by any court on the exercise of its original or appellate
jurisdiction " and went on to say " but if any decree be appealed
against any error, defect or irregularity in any such order affecting the
decision of the case, may be set forth as a ground of objection in the
memorandum of appeal." The position remained the same in the Code of 1882.
The present Code in its 105th section uses practically the same phraseology
except that the word ,,any such order" has been substituted by ,any
order" and an additional provision has been made in the second sub-section
in respect of orders of remand. The expression " such order " in s.
591 gave rise to a contention in some cases before the Privy Council that s. 591
applied to non-appealable orders only. This contention was overruled by the
Privy Council and that view was adopted by the Legislature by changing the
words " any such order " to " any order ". As regards the
orders of remand it had been held that under s. 591 of the Code a party
aggrieved by an order of remand could object to its validity in an appeal
against the final decree, though he might have appealed against the order under
s. 588 and had not done so. The second sub-section of s. 105 precludes an
appellant from taking, on an appeal from the final decree, any objection that
might have been urged by way of appeal from an order of remand.
It is clear therefore that an interlocutory
order which had not been appealed from either because no appeal lay or even
though an appeal lay an appeal was not taken could be challenged in an appeal
from the final decree or order. A special provision was made as regards orders
of remand and that was to the effect that if an appeal lay and still the appeal
was not taken the correctness of the order of remand could not later be
challenged in an appeal from the final decision. If however an appeal did not
lie from the order of remand the correctness thereof could be challenged by an
appeal from the final decision as in the cases of other interlocutory orders.
The second sub-section did not apply to the Privy Council and can have no
application to appeals to the Supreme Court, one reason 601 the supreme Court
against an order of remand.
There appears to be no reason therefore why
the appellant should be precluded from raising before this Court the question
about the applicability of s. 28 merely because he had not appealed from the
High Court's order of remand, taking the view against him that the section was
We are unable to agree with the learned
Advocate that the decision of the Privy Council in Ram Kirpal Shukul's Case (1)
affects this matter at all.
That was a case as regards execution
proceedings. The decree in question bad been made in 1862. In execution
proceedings the question arose whether or not, the decree awarded mesne
profits. The District Judge, Mr. Probyn,decided this question in the
affirmative. In 1879 the decree had not yet been executed and execution
proceedings were pending. The question was raised again before the Executing
Court whether the decree allowed mesne profits. That court held that he was
bound by the decision of Mr. Probyn that the decree did allow mesne profits and
ordered the execution to proceed on that basis. His order was affirmed on
appeal. The judgment-debtor then appealed to the High Court. Before that court
it was urged on behalf of the judgment-debtor that the law of res judicata did
not apply to proceeding in execution of a decree. The Full Bench of the High
Court to which the Division Bench referred this question answered the question
in the negative and then the Division Bench ordered, being of opinion that Mr. Probyn's
view was wrong, that the appeal be decreed and execution of decree in respect
of mesne profits be disallowed. The Privy Council after stating that Mr. Probyn's
order was an interlocutory judgment stressed the fact it had never been
reversed or set aside, and said that the fact that second appeal did not lie to
the High Court was of no consequence, for if no such appeal did lie the
judgment was final and if an appeal did lie and none was preferred the judgment
was equally binding upon the parties.
In the opinion of the Judicial Committee the
learned Subordinate Judge and the Judge were bound by the order of Mr. Probyn
in proceedings (1)  L.R. 11 I.A. 37.
602 between the same parties on the same
judgment, the High Court was bound by it and so were their Lordships in
adjudicating between the same parties.
Ram Kirpal Shukul's Case (supra) was followed
by the Council in Bani Ram v. Nanhu Mal(1) which also related Privy to an order
made in execution proceedings. It was followed again by the Privy Council
itself in Hook v. Administrator-General of Bengal (2). The facts in Hook's Case
were that in an administration suit the High Court had held that certain
conditions of a will had not been fulfilled and there was not an intestacy as
to the surplus income, rejecting a contention on behalf of the next of kin that
the gift over was invalid, as creating a perpetuity; the decree provided that
the determination of the destination of the income or corpus of the fund upon
the death of the annuitant should be deferred until after that event. In
further proceedings in the suit after the annuitant's death the next of kin
contended that under the reservation in the decree they were entitled again to
raise the contention that the gift over was invalid. The Privy Council held
that the validity of the gift over was res judicata.
It will be noticed that in all these three
cases, viz., Ram Kirpal Shukul's Case, Bani Ram's Case and Hook's Case, the
previous decision which was found to be res judicata was part of a decree.
Therefore though in form the later proceeding in which the question was sought
to be raised again was a continuation of the previous proceeding, it was in
substance, an independent subsequent proceeding. The decision of a dispute as
regards execution it is hardly necessary to mention was a decree under the Code
of Civil Procedure and so in Ram Kirpal's Case and Bani Ram's Case, such a
decision being a decree really terminated the previous proceedings. The fact
therefore that the Privy Council in Ram Kirpal Shukul's Case described Mr.
Probyn's order as an " interlocutory judgment " does not justify the
learned counsel's contention that all kinds of interlocutory judgments not
appealed from become res judicata.
Interlocutory judgments which have the force
of a decree must be distinguished from other interlocutory judgments which are
a step (1) (1884) L.R. 11 I.A. 181.
(2) (1921) L.R. 48 I.A. 187.
603 towards the decision of the dispute
between parties by way of a decree or a final order. Moheshur Singh',s Case,
Forbes' Case and Sheonath's Case dealt with interlocutory judgments which did
not terminate the proceedings and led up to a decree or final order. Ram Kirpal
Shukul's Case, Bani Ram's Case and Hook's Case deal with judgments which though
called interlocutory, had, in effect, terminated the previous proceedings.
These cases are therefore of no assistance to the learned counsel for the
respondent in his argument that the order of remand made by the High Court not
having been appealed from to this Court the correctness of that order cannot be
In our opinion the order of remand was an
interlocutory judgment which did not terminate the proceedings and so the
correctness thereof can be challenged in an appeal from the final order. We
hold therefore that the appellant is not precluded from raising before us the
question that s. 28 of the original Thika Tenancy Act was not available to the
tenants after the Thika Tenancy Amendment Act came into force. On this question
we have already decided, as already indicated above, in Mahadeolal Kanodia's
Case(1) that section 28 after its omission by the Amending Act is not available
in respect of proceedings pending on the date of the commencement of the Thika
Tenancy Ordinance of 1952.
We hold therefore that the view taken by the
High Court in this matter was wrong and that the Munsif acted without
jurisdiction in rescinding the ejectment decree. We accordingly allow the
appeal, set aside the order of the High Court appealed from and also the order
of the Munsif dated February 12, 1955, by which he rescinded the ejectment
In consideration of the fact that the state
of the law as regards the applicability of s. 28 was uncertain we order that
the parties will bear their own costs in this Court.
(1)  3 S.C.R. 578.