Amar Nath Dogra Vs. Union of India
 INSC 143 (15 April 1962)
15/04/1962 AYYANGAR, N.
RAJAGOPALA AYYANGAR, N. RAJAGOPALA AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR
P.(CJ) GAJENDRAGADKAR, P.B.
CITATION: 1963 AIR 424 1963 SCR (1) 657
CITATOR INFO :
RF 1966 SC1068 (11) R 1984 SC1004 (8)
Suit against Government-Notice-Plaint not
conforming to Civil Procedure-Maintainability-Punjab Excise Act (Punjab Act 1
of 1914), S. 40-Code of Civil Procedure (Act v. of 1908), s. 80.
The appellant who obtained a monoply
vend-licence for the retail sale of country-liquor, served during the
subsistence of the license a notice under S. 80 of the Civil Procedure Code on
the Government claiming damages for the alleged breach of certain stipulations.
Thereafter the Excise Authorities 658 suspended the license and themselves took
over the management of the vend shops and instituted proceedings for the
recovery of the monthly installments due from the appellant. The appellant
filed a suit for a permanent injunction against the State to restrain it from
realising the balance of the license fees. That suit was withdrawn and the
present suit was instituted claiming damages on various counts including
damages consequent upon the suspension of the license. The Lower Court
dismissed the suit for want of a proper notice under s. 80 of the Civil
Procedure Code and also as barred by s. 40 of the Punjab Excise Act. It also
however, recorded its findings on the merits. The High Court confirmed the
dismissal of the suit but reversed the finding on one of the items of the
It was contended in this Court that the
notice under s. 80 was proper and that the suit was maintainable.
Held, that if the first suit following the
issue of a notice under s. 80 against the Government was withdrawn and a second
suit tiled, if the notice satisfied the requirements of law in respect of the
second suit there was no necessity for a further notice before filing the
The notice should be construed not pedantically
but in the light of common sense without being hypercritical about the language
but as the purpose of the notice is to convey substantial information-relative
to the claim on the basis of which the recipient of the notice can consider the
claim of the would-be plaintiff with a view to avert the suit, if possible, the
notice in the present case did not serve that purpose.
State of Madras v. C. P. Agencies, A. I. R. (1960) S.C. 1309 and Dhian Singh Sobha Singh v. Union of India, ( 1958) S.C.R. 781,
Held, further, that the plaint was at
variance with the notice and claimed reliefs based on a cause of action arising
subsequent to the notice and so even on a literal reading of s. 80 of the Civil
Procedure Code, it could not be said that there had been compliance with it.
Held, also, that as regards the claim for the
refund of the advance deposit, the suit did not lie as it was barred by s. 40
of the Punjab Excise Act, of 1914.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 417 of 1961.
Appeal by special leave from the judgment and
659 order dated December 31, 1958, of the Judicial Commissioner, Himachal
Pradesh at Simla in Regular Civil First Appeal No. 4 of 1958.
A. V. Viswanatha Sastri and Gopal Singh, for
V. D. Mahajan and P. D. Menon, for the
1962. April 10. The judgment of the Court was
delivered by AYYANGAR, J.-This appeal, by special leave, is directed against
the judgment of the Judicial Commissioner, Himachal Pradesh affirming a decree
of the Senior Sub-Judge, Mandi dismissing the appellant's suit.
The facts giving rise to this appeal are
briefly as follows.
There was a public auction on February 25, 1952 at Mandi in Himachal Pradesh for the grant of a monopoly vend-licence to
sell by retail country-liquor for the year April 1, 1952 to March 3 1, 1953. The appellant was the highest bidder for Rs. 1, 28, 600/-and his bid was
accepted. In accordance with the terms and conditions of the auction, 1/6 of
the amount of the bid bad to be deposited by him within a month.
This sum amounting to Rs. 21,460/was so
deposited. The appellant who had started working his licence made payments of
the monthly installments of Rs. 10,714/each for the months of April and May.
Subsequently thereto there were disputes raised by the appellant that the
Excise authorities had defaulted in performing certain of the obligations
undertaken by them, in the matter of the supply of liquor etc. and there was
correspondence relating to it. There appear to have been attempts by the
authorities to remedy the situation but apparently the appellant Was not
satisfied with the steps taken, with the 660 result that he stopped his sales
of liquor and thereafter served a notice under s. 80 of the Civil Procedure
Code dated September 2, 1952 on Government making a claim for damages for
alleged breach of certain of the stipulations, After receipt of this notice the
Collector of Excise directed the suspension of the appellant's licence under s.
36 of the Punjab Excise Act, 1914 and thereafter proceeded under s. 39 of that
Act to take over the management of the vend-shops which theretofore were under
the management of the appellant. As the appellant did not pay the monthly installments
due from and after June, 1952 the Collector also took steps for the recovery of
these installments. The appellant then filed a suit No. 345 of 1952 on the file
of the Sub-Judge of Mandi on November 26, 1952 (along with certain others in
whose names one other liquor licence had been taken and who were evidently
similarly situated) for a permanent injunction restraining the State of
Himachal Pradesh from realising the balance of the licence-fees due from him.
Several technical objections were raised to the maintainability of that suit
and thereafter the suit was withdrawn on May 12, 1953, with liberty granted under O 23 r. 1. Civil Procedure Code to file a fresh suit. In pursuance
of this liberty the suit out of which the appeal before us arises, was
instituted in the Court of the District Judge, Mandi on May 5, 1953, which was substantially one for damages for breach of contract.
The Union of India against whom the suit was
brought, raised several defences both on the merits as well as of a technical
nature, the latter being mainly two: (1) that the suit was bade for want of a
proper notice under s. 80 of the Civil Procedure Code, and (2) that the suit
was barred under the Punjab Land Revenue Act as applied to Himachal Pradesh as
well as under the Punjab Excise Act, 1914 and the Rules made there under. The
learned District Judge upheld the technical 661 objections raised but also
recorded his findings on the merits and the findings on most of the items of
claim were against the appellant. The appellant's suit was dismissed.
An appeal was thereupon taken by the
appellant to the Judicial Commissioner, Himachal Pradesh who substantially
agreed with every one of the findings of the learned District Judge both on the
technical objections to the suit as well as on the merits in so far as they
were against the appellant. He further reversed the finding on one of the items
of the claim which the trial-Judge had found in appellant's favour. The appeal
was accordingly dismissed.
The appellant thereafter applied for a
certificate of fitness under Art. 133 (1)(b) for preferring an appeal to this
Court but the same having been rejected, he applied for and obtained special
leave from this Court and that is how the appeal is now before us.
It would be seen from the above narration
that what may be termed the merits of the appellant's; claim for damages could
arise for consideration only if the suit was maintainable. As we were clearly
of the opinion that the appeal must fail principally on the point that the suit
was not maintainable because of the noncompliance of the terms of 8. 80 of the
Civil procedure Code, we did not hear learned Counsel about the merits of the
appellant's complaint regarding breach of contract on the part of the State and
the relief to which the appellant would be entitled on that basis.
We shall therefore confine ourselves to the
statement of the facts necessary for deciding the point regarding the suit not
being maintainable because of non-compliance with the requisites of s. 80 of
the Civil Procedure Code. The section runs:
"80. No suit shall be instituted against
the Government or against a public officer in respect of any act purporting to
be done by 662 such public officer in his official capacity, until the
expiration of two months next after notice in writing has been delivered to, or
left at the office of-
(a) in the case of a suit against the Central
Government except where it relates to a railway, a Secretary to that
and, in the case of a public officer,
delivered to him or left at his office, stating the cause of action, the name,
description and place of residence of the plaintiff and the relief which he
claims; and the plaint shall contain a statement that such notice has been so
delivered or left." That to the suits to which s. 80 applies compliance
with it is mandatory and that a suit which does not satisfy its terms is liable
to be dismissed is not in dispute. The submission which learned Counsel pressed
for our acceptance was that there had been a substantial compliance with its
terms and it is to this point that we shall address ourselves.
As required by the last portion of s. 80
reading "the plaint shall contain a statement that such notice has been so
delivered or left", the appellant stated in paragraph 20 of his plaint:
"The plaintiff delivered a notice under s. 80, Civil Procedure Code
containing the requisite particulars to the defendant through the Collector.
Mandi on September 4, 1952 and through the Chief Secretary on September 3, 1952. A previous suit for injunction was withdrawn on May 12, 1953 with permission to bring a fresh suit on payment of costs which was deposited on May 13, 1953 per Challan No. 17 of 1953. Copy of the order is attached herewith".
663 The Union of India in the written
statement filed by it pleaded that this notice did not comply with the
requirements of s. 80 and the objection was formulated thus"A fresh notice
was necessary for the institution of this suit. The plaintiff has failed to
serve such a notice under s. 80, Civil Procedure Code. The notice mentioned in
paragraph 20 of the plaint wasnot valid; it was defective and not according to
law. The present suit, more-over is at variance with the notice. The suit shall
therefore be deemed to be without notice and not maintainable." This plea
raised for consideration three matters: (1) that where after a notice under s.
80 Civil Procedure Code ,suit is instituted but that suit is withdrawn with
liberty to file a fresh suit, it is the requirement of s. 80, Civil Procedure
Code that there should be a fresh notice before the second suit is instituted.,
(2) that the allegations in the plaint and the reliefs claimed in it were at
variance with the cause of action and reliefs stated in the notice issued under
s. 80,and (3) that the notice itself was defective as not complying with the
requirements of s. 80.
We, do not consider that there is much
substance in the first objection we have set out above. If the plaint which is
being considered by the Court has been preceded by a notice which satisfies the
requirements of H. 80, Civil Procedure Code, then the fact that before the
plaint then under consideration, there had been another plaint which had been
filed and withdrawn cannot, on any principle, be held to have exhausted or
extinguished the vitality of the notice issued.
We consider it necessary to concentrate
mainly upon the second of the objections raised, viz. that there was
substantial dis-conformity between the 664 plaint filed by the appellant and
the notice under s. 80 which was relied on in paragraph 20 of the plaint. It is
necessary for this purpose to analyse somewhat closely the allegations and
reliefs in the plaint, as well as in the notice to see how far the
disconformity and variance pleaded by the respondent has been made out. We
shall begin with the plaint. After reciting the auction dated February 25, 1952 under which the vend-licence was leased to the appellant for the year
1952-53 and the material terms and conditions of the auction, the plaint alleged
in paragraph 2 that the defendant had broken the contract which entitled the
plaintiff to file a suit for damages. The several heads of claim which went to
make up the total of the damages for which a decree was prayed were set out in
paragraphs 3 to 20. The first head of claim was in relation to loss of profits stated
to have arisen on account of inadequate supply of liquor. This was stated in
paragraph 3 where the allegation was made that there had been a deficient
supply of 632 gallons during the months of May and June,1952 on account of
which the plaintiff lost Rs.
5,11218/in the profits that he would have
derived if the supply had been properly made. While paragraph 4 dealt with the
non supply of certain special varieties of liquor during the months of April,
May and June, paragraph 5 complained that there had been a supply of kerosenic
and unwholesome liquor which had been declared unfit for human consumption by
the order of the authorities. The damages claimed on this account were computed
in paragraph 18 of the plaint at Rs. 4,222/-, being the sum paid into the
Treasury by way of excise duty in respect of liquor which bad been declared
unfit for human consumption. A claim was made in the later paragraph for the
refund of this sum. In paragraph 6 an allegation was made that the plaintiff
had bid at the figure of over one lakh and twenty thousands rupees because of
the condition 665 inserted in the terms of the auction that liquor would be
supplied in pilfer-proof bottles with metal covers and because of the
non-fulfillment of this condition he had lost Rs.-/8/per bottle which totaled
up to Rs. 26, 400/on the total number of bottles that would have been supplied
to him if the contract had gone on for the full year. In addition, under the
same head there was a further claim in paragraph 8 for Rs. 1,047/10/-, stated
to be the loss caused by the government charging a price based on the supply in
pilfer-proof bottles though the supplies were made in ordinary containers.
Paragraph 7 made a claim for a sum of Rs. 5,008/11 stated to be the price of
deficient quantity of liquor supplied because of the supply in undersized
Paragraph 9 contained a complaint that it was
a terms of the contract that empty bottles would be bought back but that this
had not been done, as a result of which the plaintiff had lost Rs. 931/8/-.
Paragraph 10 complained that the Government had not taken steps to suppress
illicit distillation which had caused loss, though ,the loss was neither
quantified nor any claim made under that head, while paragraphs II to 13
challenged the legality of the action taken by the Excise authorities in
suspending the licence and in taking over the vend-shops under their
In paragraph 16 the plaintiff claimed a
refund of Rs. 21,460 /which bad been deposited into the Treasury at the time
the licence was granted to the appellant and finally in paragraph 19 the plaint
made a claim that by reason of government having broken the contract the
plaintiff had lost a profit every month of Rs. 5. 052/ for the un-worked period
of the year of the licence, i. e. from July 1, 1952 to March 31, 1953 which
totalled Rs. 45,471/6/-. These several beads added up to Rs. 1,09,653/11/and
the plaint went on to state:
"The plaintiff is thus entitled to a
total refund and compensation of Rs. 1,09,653/1 1/666 the details of which are
given in Schedule B' (which set out the details of the computation by which the
figures which we have stated above were arrived at). The plaintiff confines his
claim for damages and refund of the amounts paid by and due to him to the
extent of Rs. 74,935/8/3 out of the items as may be found due to him."
Finally, after making a claim for a decree for this sum the plaint prayed in
"In addition to the grant of the
ancillary relief of the dependent being permanently restrained from recovering
any license fee or any other dues from the plaintiff." We shall now turn
to the notice of suit which was relied on by the appellant as complying with s.
80, Civil Procedure Code. The notice was by a lawyer who had been instructed to
serve the Collector of Mandi and the Chief Secretary, Himachal Pradesh with the
notice under s. 80, Civil Procedure Code. After stating that the appellant had
been the successful bidder at the auction and reciting certain of the terms of
the contract, it stated:
"Whereas my client has all along,
beginning from April 1, 1952 onwards, been complying with the obligations under
the agreement regarding auction of the said licenses., the Government of
Himachal Pradesh has miserably failed in honoring and implementing the
conditions there under".
This was followed by an enumeration of the
contravention and these were : (1) that standard sized bottles were not
maintained by ware-house contractors, (2) Liquor was being supplied in bottles
with paper capsules instead of in pilfer-proof bottles 667 with metal lids, (3)
that month after month in respect of urgent demands the quantity liquor
required was either inadequately supplied or not supplied at all. These complaints
were followed by an exhortation to government to be alive to its obligations
and liabilities and the notice proceeded, and this is the important paragraph:
"I am hereunder detailing the items and
the details which have mounted the damages in the above respects as at present
accrued and would request the Himachal Government to arrange for immediate
payment thereof. The loss accrued to L. Amar Nath Dogra in respect of quota
unsupplied or when supplied though inadequately in under sized bottles,
regarding miscellaneous Excise VIII charged on supplies in ordinary bottles and
for not maintaining and enforcing Buy Back system of empty bottles ; together
with the return of two months of advance deposits and deposit regarding Duty
and Misc. Excise VIII credited in the treasury at Sunder Nagar amounts to Rs. 74,935/8/3.
I hereby make demand of the said amounts
payable to my client which may either be paid direct to him or to me without
The question now for consideration is how far
and to what extent there is a variance between the plaint and the notice. At
the outset it might be pointed out that as at a very early stage of the suit
the appellant withdrew the relief for a permanent injunction, which was not
claimed in the notice and the question of this extra relief need not therefore
It would have been noticed that the plaint
claim was reduced to Rs.74,935/8/3 obviously because that was the figure that
was claimed in the 668 notice of suit. In the notice however how the total of
Rs. 74,935/8/3 was arrived at, in what manner the several items claimed were to
be related to this figure were not set out.
Nor can those details be inferred or gathered
from the detailed statements which accompanied the plaint on the basis of which
the several items claimed in the plaint were derived. There is one other matter
which requires mention in this connection. There were two items of loss claimed
in the plaint which had and could have absolutely no place in the notice
because they arose only after the Government suspended the licence and later
cancelled it and took over the vend-shops under Government's own management.
These items were : (1) loss on the yearly quota of liquor worked out at Rs.
26,400/-, and (2) the loss of profit for the unworked period i. e., from July
1, 1952 onwards which was worked out to Rs. 45,471/6/-, If these two items are
deducted from the total Rs. 1,09,653111/-, there would be a balance of only Hs.
37,782/5/-, whereas with reference to the same items of complaint a sum of Rs.
74, 935/8/3 was claimed in the notice. Besides, there is one item which figures
both in the notice as well as in the plaint regarding which the amount is
certain and that is in relation to the claim for the refund of Rs;. 21,460/being
the amount of initial deposit of 1/6th of the bid amount which had been paid
into the Treasury by the appellant in March, 1952. If this were deducted from
Rs. 37,782/5/it would leave a sum of Rs. 16,322/5/as against. Rs. 53,475/813
which could be the sum which was the subject of claim by the appellant in his
notice in respect of his three items of complaint, viz., the failure to supply
standard sized bottles, failure to observe the buy-back system and non-supply
of liquor in pilfer-proof bottles. It would therefore be apparent from these
calculations that there is a complete variance between the claim made in the
notice and the claim in the plaint. We desire to 669 make it clear that what we
have here is not a case where a claim for a definite sum in the notice is later
reduced in the plaint, but one where there is no possibility of establishing
any relationship between the claim made in the suit and that in the notice
which precedes it. On the notice the claim under one head, might for all one
knows, be for an infinitemally small sum while the other was exaggerated beyond
what is found in the plaint, and hence there is no means of identifying the
claim for any particular sum in the plaint with that for which a claim was
being made in the notice.
There is one other aspect from which the same
matter could be viewed. In the notice served by the appellant there were
several heads of claim, though they all arose out of a single contract and we
consider that on a reasonable and proper construction of s. 80, Civil Procedure
Code the authority on whom the notice is served has a right to be informed what
the claim of the party is in respect of each of the several heads. It is, no
doubt, true that a notice under s. 80 is not a pleading and need not be a copy
of the plaint and that no particular or technical form is prescribed for such a
notice, still having regard to the object for which s. 80 has been enacted we
consider that the details which it contains should be sufficient to inform the
party on whom it is served of the nature and basis of the claim and the relief
sought, and in so statiug the position we are merely reproducing the terms of
the section. No doubt, a notice has to be interpreted not pedantically but in
the light of commonsense without one being hypercritical about the language but
the question is whether in the notice before us there is substantial
information conveyed on the basis of which the recipient of the notice could
consider the claim of the would-be plaintiff and avert the suit. For the
reasons already stated this question can only be answered in the negative.
670 Mr. Sastri invited our attention to the
decision of this Court in State of Madras v. C. P. Agencies (1) in which Das,
C. J., speaking for the Court, said:
"The object of s. 80 is manifestly to
give the Government or the public officer sufficient notice for the case which
is proposed to be brought against it or him so that it or he may consider the
position and decide for itself or himself whether the claim of the plaintiff
should be accepted or resisted. In order to enable the Government or the public
officer to arrive at a decision it is necessary that it or he should be
informed of the nature of the suit proposed to be filed against it how him and
the facts on which the claim is founded and the precise reliefs asked
for." Reliance was also placed on a later passage where the learned Chief
Justice extracted a passage from the judgment of this Court reported as Dhian
Singh Sobha Singh v. Union of India (2) which read :
"The Privy Council no doubt laid down in
54 Ind. App. 338 : (Air 1927 PC 176) that the terms of this section should be
strictly complied with. That does not however mean that the terms of the notice
should be scrutinized in a pedantic manner or in a manner completely divorced
from commonsense." On this line of reasoning this Court held that the
notice before them sufficiently complied with the terms of s. 80.
It must, however, be pointed out that this
conclusion was reached on the notice which gave the details of the several
heads of claim which were there made. With reference to the notice then before
the Court the learned Justice observed, after setting out the several
paragraphs of the notice in which the details were set out (1) A. 1. R. 1960 S.
C. 1309, (2)  S.C.R. 781.
671 "Therefore, on a fair reading of the
notice it may be said that the fact of the contract for the payment of the
godown rent, the quantity of goods stared the rate at which and the period for
which the claim was made and the failure of the first defendant to pay the same
are sufficiently stated so as to enable the first defendant, which is the
appellant before us, to know that the plaintiff's claim was about and whether
the claim should be conceded or resisted".
It is precisely these details that are
lacking in the present case. No doubt, there is a general complaint that
Government have not conformed to the contract, but these are it emised in the
paragraphs of the notice which we set out.
If the notice had gone on to state the amount
claimed under each of the several heads of items claimed it would have been
possible for the Government to have considered whether it was worth their while
to settle with the plaintiff by agreeing to pay the sum demanded. This they had
never an opportunity by reason of form of the notice, and the manner in which
the relief claimed was stated.
The only item regarding which it could be
said that there is a quantification in the notice would be that relating to the
claim for the refund of Rs. 21,460/being the amount of advance deposit made
before the licence was granted, but the plaintiff's claim in this regard is
barred under the terms of a. 40 of Punjab Excise Act which runs:
"40. When a license, permit or pass is
cancelled or suspended under clause (a), (b), (o), (d) or (e) of section 36 or
under section 37, the holder shall not be entitled to any compensation for its
cancellation or suspension nor to the refund of any fee paid or deposit made in
respect thereof." 672 The result therefore would be that the entire claim
in the suit must fail reason of the combined effect of s. 80, Civil Procedure
Code and s. 40 of the Punjab Excise Act.
With reference to s. 80, Civil Procedure Code
there is one further submission of Mr. Sastri to which it is necessary to
advert. He urged that whatever other defects there might be in the notice dated
September 2, 1952, there was a literal compliance with requirements of s. 80
and that in consequence the Court was bound to treat it as valid. In this
connection he pointed out that the only requirements of s.
80 relevant to the present context were that
the notice should state the course of actio n and the relief which was claimed.
His argument was that the contract was single and entire and as the notice had
stated that there had been a breach thereof, and had gone on to enumerate the
several stipulations which were claimed to have been broken, the requirement
that the cause of action should be stated had been complied with. Next was the
requirement that the relief claimed should be stated and this also satisfied as
the notice claimed damages by way of compensation and had set out the amount so
claimed. Ho pointed out that in regard to the claim for damages the plaint had totaled
up the items to reach the figure of Rs. 1,09,653/11/but had confined the claim
to Rs. 74,93518/3 which had been the figure at which damages had been computed
in the notice and the argument therefore was that the Court would have
jurisdiction to grant the relief at least in respect of those items of the
claim which were common to the notice and the plaint. We consider that the
validity of the notice now impugned cannot be sustained on the basis suggested.
It would be noticed that when the notice dated September 2, 1952 was issued the
Collector had not suspended or cancelled 673 the licence and that the claim set
out in the notice was on the basis of seeking relief for branches of
stipulations in a subsisting contract. This was made clear by the paragraphs
that follow that which we have extracted earlier. These run:
"Under the conditions and circumstances
disclosed, my client could not be forced to pay in the fees etc. as accrued
without first making good to them by you the damages and losses that have
resulted hereto before on account of the Government not fulfilling the material
conditions. It is therefore requested that no untoward action be proposed by
the Government in that behalf, for it would otherwise be unwarranted, illegal
The licence, my client has been and would be
willing to carry out his part as relates to auction conditions if the
Government gives immediate redress in the terms aboveboard, and arrange
supplied in pilfer-proof bottles.
Otherwise, treating the contract determined
he will be forced to take the matter to law courts in which event the Himachal
Government will be liable in addition to the damages; to costs and expenses
that may accrue for the stated steps." When one comes to the plaint
however, the entire basis or rather the cause of action is changed. By that
date the contract had been terminated, the licence having been suspended and
afterwards the Collector had taken over the management of the shops under s.39
of the Punjab Excise Act.
There was, therefore a radical difference
between the state of circumstances when the impugned notice was issued and when
the plaint was filed which is reflected in the allegations made in the two
documents and the reliefs claimed in each.
674 In summary, the notice was based on the
breach of stipulations in a contract which had not been broken and was still
subsisting. In that sense, it would be the items claimed in respect of each
breach that would constitute a cause of action in the technical sense and it
was on their account that the sum of Rs.74,935/8/3 was claimed as damages. In
the plaint, however, the cause of action was different. By that date the
allegation was that the contract had been broken by the government repudiating
it and taking over the shops after cancelling the licence. The cause of action
then was the breach of the entire contract and the items set out in the plaint
were the heads of claim under which the damages were computed. In view of these
circumstances we have no hesitation in holding that even on a very narrow and
strict view of s. 80 there was no compliance with its terms.
The result therefore is that the entire claim
in the suit must fail for the reasons we have indicated earlier. The appeal,
therefore, fails and is dismissed. In the circumstances of this case we
considered that the parties should bear their own costs in this appeal.