Seth Gulab Chand Vs. Seth Kudilal
& ANR  INSC 29 (28 March 1958)
BOSE, VIVIAN DAS, SUDHI RANJAN (CJ) AIYYAR,
T.L. VENKATARAMA DAS, S.K.
CITATION: 1958 AIR 554 1959 SCR 313
Statute, Construction of-Retrospective
operation-Rule of presumption-Applicability-Duty of Court-Reference to Pre-
existing law, if and when permissible-Right of appeal-United State of Gwalior,
Indore and Malwa (Madhya-Bharat) High Court of Judicature Act, VIII of 1949,
SS. 2(b), 25.
The rule that a statute is not to have
retrospective operation can apply only where it is doubtful from the language
used whether or not it was intended to have such operation. Where the language
of the statute plainly gives it a retrospective operation, there can be no
scope for applying the rule of presumption against retrospective operation. The
rule does not require that the Courts should be obdurate in refusing to give a
statute retrospective operation, equally it does not justify the reading of
more words than there are into the statute in order that the rule may apply.
Delhi Cloth and General Mills Co. Ltd. v.
Income Tax Com- missioner, Delhi, (1927) L. R. 54 I.A. 421, Smith v. Callander,
(1901) A.C. 297 and Reid v. Reid, L.R. (1886) 3I Ch. D. 402, considered.
The appellant brought a suit for specific
performance of an agreement of sale in the High Court of Indore at a time when
Indore was a Princely State in British India. On April 22, 1948, the Rulers of
Gwalior, Indore and certain other States entered into a Covenant to form the
United State of Gwalior, Indore and Malwa (Madhya-Bharat). The suit was heard
by a single Judge and decreed on June 11, 1948. The Ruler of Indore on June 16,
1948, made over the administration of his State to the Raj Pramukh of the
United State in terms of the Covenant. By an ordinance promulgated by the Raj
Pramukh a High Court was established for the United State and the High Court of
Indore ceased to function from July 29, 1948. The respondents preferred an appeal
to the Divisional Bench of the High Court of the United State on August 24,
1948, and the appellant preferred a cross appeal under the provisions of that
Ordinance. The Divisional Bench found in favour of the respondents in both the
appeal and cross-appeal and dismissed the appellant's suit by a judgment dated
December 2, 1948. The Interim Legislative Assembly of the United State enacted
the United State of Gwalior, Indore and Malwa (Madhya-Bharat) High Court of
Judicature Act, VIII Of 1949, which came into force on January 18, 1949, and
repealed the Ordinance.
40 314 By s. 2(b) of the Act it was provided
This Act shall apply to all Criminal and
civil proceedings including those under. testamentary, intestate, matrimonial
divorce and insolvency jurisdiction pending in the courts in any State on the
date on which the State is included in the united State and to such
proceedings, arising in the said states, after those dates.
By s. 25 it was provided :
Special appeal shall lie to the Full Bench of
the High court from :- (1) a decree or an appealable order passed by the
Divisional Bench of two judges Of the High Court in the exercise of
extraordinary or appellate civil jurisdiction.
The appellant preferred an appeal to the Full
Bench of the High Court under S. 25 against. the judgment of the Divisional
Bench. The Full Bench dismissed the appeal as incompetent holding that s. 25
could not be given retrospective operation so as to disturb the right that had
vested in the respondents as to the finality of the judgment of the Divisional
Bench which was passed before the Act came into force :
Held, that s. 25 Of the Act, although not in
terms retrospective, has to be read with S. 2(b) of the Act which made the Act,
and consequently S. 25, applicable to the proceedings mentioned in it and since
the appeal before the Divisional Bench, filed after the inclusion of the State
of Indore in the United State, was beyond doubt one of such proceedings, the
competency of the appeal could not be questioned.
Although there can be no hard and fast rule
that in no case should the pre-existing law be referred to for the purpose of
interpreting a new enactment, where, as in the present case, the language is
simple, free from doubt and clearly indicates that a change in the pre-existing
law is intended and no reason existed requiring a reference to the pre-
existing law, no such reference is permissible.
Tumahole Bereng v. The King, (1949) A.C. 253,
Abdur Rahim v. Mohomed Barkat Ali, (1927) L.R. 55 I.A. 96 and In re Mayfair .Property
Co. (1898) 2 Ch . 28, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 230 of 1953.
Appeal from the judgment and decree dated
August 29, 1950 of the former Madhya Bharat High Court at Indore in Special
Appeal No. 5 of 1949, arising out of the judgment and decree dated December 2,
1948, of the said High Court in Civil First Appeal No. 61 of 1948 against the
judgment and decree dated June 11, 315 1948, on its Original Side in Civil
Original Suit No. 30 of 1947.
N.C Chatterjee, S. C. Isaacs, J. D. Patel, J.
B. Dadachanji, S. N. Andley and Rameshwar Nath, for the appellant.
M. P. Amin, C. B. Sanghi and 1. N. Shroff,
for the respondents.
1958. March 28. The following Judgment of the
Court was delivered by SARKAR T.-The Princely States that existed in British
India, merged themselves in the Union of India not very long after India became
independent. Before the merger some of these States passed through certain
stages which may be called transitional. The decision of this appeal depends on
certain laws that came into existence during the transitional stage through
which the Princely State of Indore passed before it became merged in the Indian
Up to April 22, 1948, Indore as one of the
Princely States of India enjoyed internal sovereign rights and had its own laws
and courts. These laws and courts derived their authority from the Ruler of
Indore in whom the sovereign power was vested. The highest court in Indore was
called the High Court.
The suit out of which this appeal arises was
filed by the appellant against the respondents in the Indore High Court on
November 6, 1947. It, was a suit for the specific performance of an agreement
whereby it is said, Govindram Sakstria, whose heirs and legal representatives
the respondents are, agreed to sell to the appellant a share in a business. The
said Govindram Saksaria having died prior to the suit it was brought against
On April 22, 1948, the Rulers of Gwalior,
Indore and certain other States in the region known as Malwa (Madhva-Bharat)
entered into a Covenant to unite and integrate their territories in one State
with a common executive, legislature and judiciary, by the name of the -United
State of Gwalior, Indore and Malwa (Madhya-Bharat) and to include in that
United 316 State any other State the Ruler of which later agreed with the
approval of the Government of India, to merge his State in the United State.
Article 3 of the Covenant provided for the constitution of a Council of Rulers
one of the members of which was to be its President, such President being
called the Rajpramukh. It also provided that the Ruler of Gwalior would be the
first Raj Pramukh of the United State.
Under art. 6 of the Covenant, the Ruler of
each covenanting State was required to make over the administration of his
State to the Raj Pramukh by a date not later than July 1, 1948. This article
also provided that upon the administration of a State being made over to the
Raj Pramukh, all rights, authority and jurisdiction belonging to its Ruler and
appertaining or incidental to its Government, would vest in the United State.
Similar provision was also made in respect of the vesting of the rights,
authority and jurisdiction of the Ruler of a State which by a subsequent
agreement became included in the United State.
Article 10 provided that as soon as
practicable a Constituent Assembly for the United State would be formed in the
manner indicated, for framing its Constitution and that the Raj Pramukh would
by August 1, 1948, constitute an interim Legislative Assembly. It also provided
that until the Constitution framed by the Constituent Assembly came into
operation, the Raj Pramukh would have the power to make and promulgate
Ordinances for the peace and good Government of the United State but such
Ordinances would have force for a period not longer than six months from its
promulgation and would be liable to be controlled or superseded by an Act of
the interim Legislative Assembly. As a matter of interest it may be mentioned
here, though nothing turns on that in this appeal, that the United State later
became a Part B State as defined in the Constitution of India and lastly,
merged in the territories of what is now the State of Madhya Pradesh.
The suit brought by the appellant was heard
by a single Judge of the Indore High Court who decreed it by his judgment
pronounced on June 11, 1948. It 317 was five days after this judgment had been
pronounced, namely, on June 16, 1948, that the Ruler of Indore made over the
administration of his State to the Raj Pramukh of the United State in terms of
the Covenant. It appears, however, that the High Court of Indore continued
functioning even thereafter. On June 19, 1948, the Raj Pramukh promulgated
Ordinance No. 2 of 1948 to provide for the establishment of a -High Court for
the United State. Section. 2 of the Ordinance provided that it would come into
force on such date as the Raj Pramukh might prescribe and the Raj Pramukh by a
Notification. published on July 28, 1948, prescribed July 29, 1948, as such
date. On Ordinance No. 2 of 1948 so coming into force on July 29, 1948, the
High Court of the State of Indore ceased to function from that date. Section 35
of the Ordinance provided that on the taking over of the administration of any
State by the Raj Pramukh its High Court would cease to exist and all cases
pending before it would be transferred to the High Court of the United State
established by the Ordinance. The provisions of this section were found to be
anomalous in the cases of States like Indore, where the administration had been
taken over sometime before the Ordinance had come into force and the High Court
under it established, for in regard to these States the cases pending in the
State High Courts could not on the dates their administration was taken over,
be transferred to the United State High Court as it had not then come into
existence. To remedy this anomaly, on October 16, 1948, the Raj Pramukh
promulgated Ordinance No. 14 of 1948. This Ordinance replaced s. 35 in
Ordinance 2 of 1948 by a new section and provided that it would be deemed to
have always been so replaced. The new section provided that in the case of any
State whose administration had been taken over by the Raj Pramukh before the
establishment of the High Court of the United State, the High Court of the
State would cease to exist and function from the date of such establishment and
thereupon all cases pending before the High Court of the State would be
transferred to the High Court of the United State and the appeals 318 which
would have lain to the High Court of the State would lie to the High Court of
the United State.
Before Ordinance No. 14 of 1948 had been
promulgated, the respondents on August 24, 1948, preferred an appeal to the
-Divisional bench of the High Court of the United State from the decision of
the High Court of Indore decreeing the appellant's suit on June 11, 1948, to
which reference has been made earlier. A few days later, namely, on September
7, 1948, the appellant also preferred a cross-appeal to the Divisional Bench
against the same decision. On December 2, 1948, the Divisional -Bench decided
the appeal and the cross-appeal in favour of the respondents and dismissed the
Now came the United State of Gwalior, Indore
and Malwa (Madhya-Bharat) High Court of Judicature Act, VIII of 1949, hereafter
referred to as the Act. It was enacted by the Interim Legislative Assembly of
the United State which had earlier come into existence. The Act came into force
on January 18, 1949. Section 40 of this Act repealed Ordinance No. 2 of 1948.
The question that arises in this appeal depends on the construction of some of
the provisions of this Act which are now set out.
Preamble: Whereas it is necessary to provide
for the continuance of the High Court of Judicature for the United State of
Gwalior, Indore and Malwa (Madhya-Bharat) established under Ordinance No. 11 of
1948, it is hereby enacted as follows:
S. 4. In this Act unless there is anything
repugnant in the subject or context:
(d) " High Court " means the High
Court functioning as the High Court of the United State.
S. 2(a). It shall extend to the whole of the
United State of Gwalior Indore and Malwa (Madhya Bharat) and shall apply to all
persons within the said United State over whom the Courts having jurisdiction
in the Covenanting States forming part of the said United State had
(b) This Act shall apply to all Criminal and
Civil Proceedings including those under testamentary, 319 intestate,
matrimonial, divorce and insolvency jurisdiction, pending in the Courts in any
State on the (late on which the State is included in the United State and to
such proceedings, arising in the said States after those dates.
S.25. Special appeal shall lie to the Full
Bench of the High Court from :- (1) a decree or an appealable order passed by
the Divisional Bench of two Judges of the High Court in the exercise of
extraordinary or appellate civil jurisdiction.
On March 31, 1949, the appellant filed an
appeal to the Full Bench of the High Court from the judgment of the -Divisional
Bench dismissing his suit. He claimed to be entitled to file this appeal under
s. 25 of the Act. The Full Bench dismissed the appeal on the ground that s. 25
was not available to the appellant and in this view of the matter it did not go
into the merits of the appellant's case. It appears that another Full Bench of
the High Court consisting of three Judges had held on an earlier occasion that
s. 25 did not apply where the Divisional Bench had delivered its judgment
before the Act had come into force and no appeal Jay from such a judgment under
this section. That view was endorsed by the judgment of the later Full Bench
which however was larger consisting of five Judges. In the present appeal to
this Court, the correctness of the last Full Bench judgment is being
The appellant contends that s. 2(b) of the
Act ap. plied the Act including s. 25 to the proceedings mentioned in it and s.
25 so applied gave a right of appeal to the Full Bench of the High Court from
the decision of a Divisional Bench of that Court passed in these proceedings.
He then says that the judgment of the Divisional Bench dated ] December 2, 1948
from which he had appealed to the Full Bench had been passed in such a
proceeding and therefore his appeal was competent.
The High Court does not appear to have held
that that proceeding was not of any 320 of the kinds mentioned in s. 2(b) and
it seems to us that it was of one of these kinds. Section 2(b) mentions two
kinds of proceedings, namely, first those pending in the Courts in any State on
the date on which that State was included in the United, State and secondly
those which arose in the States after those dates. Now the proceeding in which
the Divisional Bench pronounced judgment was an appeal from a decision of a
Single Judge of the Indore High Court given on June 11, 1948, that is, before
that State became included in the United State. The appeal had however been
filed on August 24, 1948, that is, after Indore had been included in the United
State. The appellant contends that the fact that the decree from which he had
appealed had been passed before the date of inclusion of Indore in the United
State while his appeal had been filed after that date made no difference for an
appeal being only a continuation of the proceedings in a suit, the proceedings
must be deemed to have been pending all along since the filing of the suit and
therefore on the date when Indore was included in the United State though the
appeal was filed later. Dinonath Ghose v. Shama Bibi (1) to which we were
referred would seem to support the appellant's contention. In any case it seems
beyond doubt that the appeal in which the judgment of the Divisional Bench,
dated December 2, 1948, was pronounced, was a proceeding of the second kind
mentioned in s. 2(b), namely, " proceedings, arising in the said States,
after those dates ", i. e., the date of the inclusion of the State in the
United State. It seems clear to us that the words " arising in the said
States " do not refer to proceeding arising in a Princely State for the
Princely State had ceased to exist after its inclusion in the United State and
no proceeding could arise therein after such inclusion. So to understand these
would result in this part of s. 2(b) being rendered nugatory. We do not think,.
however such a result is inevitable. These words can well be taken to refer to
a proceeding arising in the areas of an erstwhile Princely State subsequently
included in the United (1) (1900) I.L.R. 28 Cal. 23.
321 State. We think that to be the proper
meaning to be given to these words. So understood the appeal in which the
judgment of the Divisional Bench, dated December 2, 1948, was given was a
proceeding arising in the areas of the erstwhile Indore State after the
inclusion of that State in the United State for it was filed after such
inclusion. It is therefore clearly a proceeding of the second kind mentioned in
The learned Judges of the High Court however
did not, as earlier stated, accept the appellant's contention that s. 25 gave a
right of appeal to the Full Bench from the judgment of the Divisional Bench
passed in a proceeding mentioned in s. 2(b). Their reasons for this view would
appear broadly to be these: To accede to the appellant's contention a
retrospective operation would have to be given to the Act and thereby affect
the right vested in the respondents at the date of the passing of the Act to
the finality of the judgment of the Divisional Bench delivered before that
the rules of construction of a statute
required that only such retrospective operation should be given to it as its
language compelled; there was no such language used in s.
2(b), which, properly understood, only gave
the High Court of the United State jurisdiction over proceedings pending in the
High Court of' a Princely State on the date on which that State was included in
the United State; 'in any event the language of s. 2(b) would be fully
satisfied by giving retrospective operation to s. 25 only to the extent of
applying it to proceedings pending on the date of inclusion of a State in the
United State and not closed by a final judgment passed before the Act came into
It may be conceded that the judgment of the
Divisional Bench was final under the law as it stood at the date it was passed
and no appeal lay from it before the Act came into force. The respondents had
therefore at the date of the Act a vested right to the finality of this
judgment. It is also clear that a right to the finality of a judgment is a
substantive right and that the acceptance of the appellant's contention would
result in depriving the respondents of such a right.
41 322 The only question in this appeal is
whether s. 25 gives a right of appeal from the judgment of the Divisional
The rule is clear that " provisions
which touch a right in existence at the passing of the statute are not to be
applied retrospectively in the absence of express enactment or necessary
intendment " : Delhi Cloth and General Mills Co. Ltd. v. Income Tax
Commissioner, Delhi (1). Before proceeding further we wish to observe that the
rule that a statute is not to have retrospective operation is only applicable
where it is doubtful from the language used whether or not, it was intended to
have such operation.
Where the language of a statute plainly gives
it a retrospective operation, the rule has no application, for, " of
course, it is obviously competent for the Legislature, if it pleases, in its
wisdom to make the provisions of an Act of Parliament retrospective ":
Smith v. Callander (2). We may usefully read here what Bowen L. J. said in Reid
v. Reid (3):
" Now the particular rule of
construction which has been referred to, but which is valuable only when the
words of an Act of Parliament are not plain, is embodied in the well- known
trite maxim ominis nova constitution futuris forman imponere debet non
praeteritis, that is, that except in special cases the new law ought to be
construed so as to interfere as little as possible with vested rights.- We wish
to emphasise that it is not as if all efforts should be made so as not to give
a statute a retrospective operation whatever its language is. The rule does not
require of the courts an " obdurate persistence " in refusing to give
a statute retrospective operation.
Now, what is the language of the Act before
us Section 25 does not contain any words to show that it was intended to have
retrospective operation. It only provides for the future. It gives a new right
of appeal and such appeal can of course only be filed after the Act has come
But there is s. 2 (b). That section says that
the Act shall apply to all civil and criminal proceedings pending in the Courts
in any State on the date on which the State is included in the (1) (1927) L.R.
54 1. A. 421. 425. (2) (1901) A.C. 297, 305.
(3) L.R. (1886) 31 Ch. D. 402.408.
323 United State, and to such proceedings
arising in the said States after these dates. Section 2 (b) therefore makes s. 25,
and also all other sections of the Act, applicable to the proceedings mentioned
in it. Now what -is the effect of this ? What is the result if a section giving
a right of appeal is made applicable to a proceeding ? It can only be that an
appeal would lie under that section from a judgment passed in that proceeding.
It is, in our view, clear that the language of s. 2(b) applies s. 25 to a
proceeding which was pending on a date before the Act came into force, and
therefore gives a right of appeal from a judgment of a Divisional Bench passed
in that proceeding, whenever it may have been passed, that is to say, irrespective
of whether it was passed before the Act or after it. We have here plain
language which gives the statute retrospective operation.
It does not seem to us that there is any
scope here. of applying the rule of presumption against the retrospective operation
of a statute.
But it is said that s. 2(b) only extends the
jurisdiction of the High Court to the pending cases over which it would not
otherwise have any jurisdiction, and is not intended to give retrospective
operation to any part of the Act. It is said that that this is the real effect
of s. 2(b) is clear because it is put along with 2(a) which only specifies the
territories and the persons over whom the High Court having authority under the
Act is to have jurisdiction. It seems to us, however, that whether a section
only creates jurisdiction or not will depend on its language and not on its
proximity to another section of the same statute defining jurisdiction. Then it
is said that the Act repealed and substantially re-enacted Ordinance No. 2 of
1948 and as the corresponding section of that Ordinance, namely, s.4(b), which
was practically in the same language as s.2(b) of the Act, was only concerned
with jurisdiction, s.2(b) must be understood to do the same. This contention
was accepted by the learned Judges of the High Court but in this they were
clearly in error. We do not wish to be understood as saying that in no case is
a reference to the old law permissible for interpreting a new statute, but it
seems to us that in the present 324 case such a reference was not justified.
One of the cases on which the learned Judges of the High Court based themselves
is Tumahole Bereng v. The King (1). There the Judicial Committee were dealing
with a statute only a part of which had been amended and after reminding
themselves of the wisdom of the warning given by Lord Watson in Bradlaugh v.
Clarke (2) that it is " an extremely hazardous proceeding to refer to
provisions which have been absolutely repealed, in order to ascertain what the
legislature meant to enact in their room and stead," observed at p. 267:
"...... the circumstances of the present
case put it beyond the mischief Lord Watson was minded to discourage, and that
for two reasons. In the first place, the terms of the section as it now stands
are sufficiently difficult and ambiguous to justify the consideration of its
evolution in the statute-book as a proper and logical course; and secondly, the
object of the instant enquiry is to ascertain the true meaning of that part of
the section which remains as it was, and which there is no ground for thinking
the substitution of a new proviso was intended to alter. " In the case
before us the language admits of no difficulty- it is simple and it applies all
the sections of the Act to certain proceedings and as one of these sections at
least, namely, s. 25, is new, clearly a change in the law was intended. We do
not wish to suggest that the circumstances which would justify a reference to
the old law have been exhaustively set out by the Judicial Committee. It is
enough for us to say that none of those circumstances exists here. In Abdur
Rahim v. Mahomed Barkat Ali (3), which was also referred to by the High Court,
the Judicial Committee had to decide whether a suit was within s. 92 of the
Code of Civil Procedure, 1908, and for that purpose to find out what reliefs
the expression " further and other relief " in the section would
include. These words are plainly wide and require definition. The Judicial
Committee referred to the earlier law on the subject to find out what that
general expression was intended to include. This case (1) (1949) A.C. 253. (2)
(1883) 8 App. Cas. 354.
(3) (1927) L.R. 55 I.A. 96.
325 does not justify a resort to the old law
by us, for here we have no general words as to the meaning of which difficulty
has arisen. The last case on which the High Court based itself for this part of
it,-, judgment to which we wish to refer was In re Mayfair Property Co. There
the contention was that a certain interpretation would defeat the object of the
Act and in order to as certain that object a reference to the old law was found
necessary. No such question arises in the case before us. It is not contended
that the object of the Act before us would be defeated if s. 2(b) applied s. 25
retrospectively. For these reasons it seems to us that the present is not a
case where it is permissible to in- terpret s. 2(b) of the Act by reference to
s. 4(b) of the Ordinance. Further in our view, in any event, s. 4 (b) of the
Ordinance provides no assistance in interpreting s. 2(b) of the Act. Section
4(b) of the Ordinance was not concerned with applying to any case another
provision in it giving a right of appeal which s. 2(b) of the Act clearly is
What we have to decide is, in what cases that right of appeal was given and for
that purpose plainly s. 4(b) of the Ordinance can afford no assistance as it
was not concerned with any such right of appeal.
It is then said that sufficient meaning would
be given to the words " pending in the Courts in any State on the date on which
the State is included in the United State " in s. 2(b), if they are
understood as referring to the cases which were -pending on that day and which
had not been finally decided and determined before the Act had come into force.
This contention is sought to be justified on
the principle " that you ought not to give a larger retrospective power to
a section, even in an Act which is to some extent intended to be retrospective,
than you can plainly see the Legislature meant ". See Reid v. Reid (2).
Now it seems to us that the principle has no application here. There is nothing
in the section to indicate that the legislature intended the retrospective
operation of s. 25 to be confined to those pending cases which had not
terminated before the Act had come into force. Such a construction would
require adding to the section the (1) (1898) 2 Ch. 28.
(2) L.R. (1886) 31 Ch. D- 402,408.
326 words " and not finally decided
before the Act comes into force ". The rule of presumption against the
retrospective operation does not require the addition of any words to a section
otherwise plain. We recall here, what we have said earlier, that the rule
applies only where the words are not plain or are capable of two meanings. It
does not justify subtlety in adding words to the section to make the rule
It is also said that though s. 2(b) applies
s. 25 to the proceedings mentioned therein, it does not expressly say that in
so applying it, vested rights shall also be affected. We think it enough to
dispose of this contention to say that, the necessary result of applying s. 25
to the proceedings mentioned is to disturb vested rights and that in order that
a statute may have a retrospective operation it is not necessary to find words
in it expressly stating that it will have such operation notwithstanding that
that will disturb vested rights. We do not think that the words are not plain
to give a retrospective operation.
We therefore think that the appellant's
appeal from the Divisional Bench was competent under s. 25 of the Act. The
result is that this appeal is allowed. The decree of the Full Bench of the High
Court is set aside. The case will now go back to the High Court of
(Madhya-Pradesh) to be decided on the merits. The appellant will have the costs
here and below.
We have here to state that there were three
other connected matters. First, there was an application by the appellant to
this Court for special leave to appeal from the Judgment of the Divisional
Bench, being Petition for Special Leave to Appeal (Civil) No. 368 of 1957. Then
there was another application by the appellant to this Court for special leave
to appeal from the judgment of the Full Bench, being Petition for ,Special
Leave to Appeal (Civil) No. 242 of 1957. These had been made by way of abundant
Lastly, there was an application for leave to
file additional documents in the appeal that has just been disposed of. It was
Civil Misc. Petition No. 472 of 1956.
None of these applications were pressed and
we therefore dismiss them but without any order for costs.
Appeal allowed, cause remitted.