BUSCHlNG SCHMITZ PRIVATE LTD v. P. T. MENGHANI & Anr.

A f'asciculus of clauses creating substantive and procedural pro visions to meet the evil and advance the scheme in that behalf came in, first by ordinance 24 of 1975 in December 1975, duly replaced by the Delhi Rent Control (Amendment) Act, 18 of 1976. The chronic disease needed drastic treatment and the legislative draftsmen E created a chain of stiff provisions. Speaking generally, the govern ment, after satisfying itself about the official having let out his reisi dential building and occupying officially allotted quarters, directed the person to vacate government premises but he had quickly to get back his own house. So a new right ( s. 14A) was created, accelerated remedial procedures were prescribed (s. 25A and 25B). This appeal turns on the meaning of s. 14A. The purpose of the project has been explained by Chandrachud J. in Sarwan Singh(') : "The object of Section 14A, as shown by its marginal recover note, is to confer a right on certain landlords immediate possession of premises' belonging them and ~n the signi which are in the pilssession of their tenants. ficant language of the marginal note, such a 'to accrue' to a class of persons. The same concept is pursued and clarified in the body of Section 14A by providing that in the contingencies mentioined in the section, a right will accrue to the landlord 'to recover immediately possession of any premises let out by him' ... " • * • * "Whatever be the merits of that philosophy, the theory is that an allottee from Central Government or a (I) Sarw>n Singh v. Kasturi Lal, A.LR. 1977 S.C. 265, 272.274. F G H • • A B c D E F G H 316 SUPREME COURT REPORTS [1977] 3 S.C.R. authority should not be at the mercy of law's delays while being faced with instant eviction by his landlord save on payment of what in practice is penal rent. Faced with a Robson's choice, to quit the official residence or pay market rent for it, the allottee had in turn to be afforded a quick and expeditious remedy against his own tenant. With that end in view it was provided that nothing, not even the Slum Clearance Act, shall stand in the way of the allottee from evict~ng his tenant by resorting to the summary proce dure prescribed by Chapter deprived of the elementary right of a defendant to defend a proceeding brought against him, save on obtaining leave If 1he leave is refused, by section of the Rent Controller. the appli · 25B ( 4) the statement made by the landlord in cation for eviction shall be deemed to be admitted by tenant and the landlord is entitled to an order for eviction. No appeal or second appeal that order. Section 25B(8) denies that right and provides \nstead for a revision to the High Court whose jurisdiction is limited to finding out whether the order complained of is according to law." lies against IHA. The tenant It is a notorious fact that, vesting a right is long years' distance away from getting the remedy, thanks to our legal process with slow motion mood. A jurisprudence of quick-acting and comprehen sive remedies, demanding re-structuring and streamlining of the judi cative apparatus and imparting operational speed and modernisation of the whole adjectival law and practice, is urgent and important-an observation we make hoping that Parliament will programme for such a constructive change for the good of the community, in consultation with the Court and the Bar. That legal instrumentality alone truly sustains the rule of law which delivers justice with inexpensive colority, finality and fullness. The big right-remedy gap is the bane of our system. We regard it our duty to mention this dime 1nsion of justice a,nd this desideratum of systemic reform so that repetitive Litanies to end law's delays may be intelligently heeded by the law-makers ins- tead of joining the chorus against the court. Back to the statute. Section 14-A, with a non-obstante rider, follows upon and is partly supplemental to s. 14 which primarily governs eviction by landlords of tenants. We may extract a part of s. 14 and the whole of s. 14A : "14(1) Notwithstanding anything to the contrary in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant : Provided that the Controller may, on an application made to him in the prescribed manner make an order for the recovery of possession of the premises on one or more of the following grounds only, namely,- (a) to (d) * * * * • • BUSCHING SCHMITZ (P) LTD. V. P. T. MENGHANI 317 (Krishna Iyer, J.) ( e) that the premises let for residential purposes are required bona fide by the landlord for occupation as a resi dence for himself or for any member of his family dependeint on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or residential such person has no other accommodation : reasonably suitable Explanation.-For the purposes of this clause, "premises let for residential purposes, includes any premises Which having been let for use as a residence arc, without the con sent of the landlord, used incidentally for commercial or other purposes, .... " A B x x x x c "l 4A. Right to recover immediate possession of premises to accrue to certain persons.- ( 1) Where a landlord who, being a person in occupation of a,ny residential premises allotted to him by the Central Government or any local authority is required, by, or pursuance of any general or special order made by Government or authority, to vacate such residential accom modation, or in default, to incur certain obligations, on the g,round that he owns, in the union territory of Delhi, a resi- dential accommodation either in his own name or in the name of his wife or dependent child, there shall accrue, on and from the date of such order, to such landlord, notwith- standing anything contained elsewhere in this Act or in any other law for the time being in force or in any contract (whether express or implied), custom or usage to the con- trary, a right to recover immediately possession of any pre- mises let out by him : Provided that nothing in this section shall be construed as conferring a right Oj11 a landlord owning, the union territory of Delhi two or more dwelling houses, whether in his own name or in the name of his wife or dependent child, to recover the possession of more than one dwelling house and it shall be lawful for such landlord to indicate the dwel ling house, possession of which he intends to recover. (2) Notwithstanding anything contained elsewhere this Act or in any other law for the time being in force or in any contract, custom or usage to the contrary, where the landlord exercises the right of recovery conferred qn him by sub-section (1), no compensation shall be payable by. him to the tenant or any person claiming through or under him and no claim for such compensation shall be entertained by any court, tribunal or other authority : Provided that where the landlord had received,- D E F ~' G H • . - A B c D 318 SUPREME COURT REPORTS ( 1977] 3 S.C.R. (a) any rent in advance from the tenant, he shall, within a period of ninety days from the da, te of recovery of posses sion of the premises by him, refnnd to the tenant such amount as represents the rent payable for the unexpired portion of the contract, agreement or lease; (b) any other payment, he shall, within the period afore said, refund to the tenant a sum which shall bear the same proportion to the total amount so received, as the unexpired portion of the, contract or agreement, or lease bears to the total period of contract or agreement or lease; Provided further that, if any default is made in making any refund as aforesaid, the landlord shall be liable to pay simple interest at the rate of six per cent per annum on the amount which he has omitted, or failed to refund." A summary remedy is provided by s. 25B which reads : "25.B. Special procedure for the disposal of applications for eviction on the ground of bona fide requirement.- ( i) Every applicati~ by a landlord for the recovery of posses sion of any premises on the ground specified in clause (a) of the pro viso to sub-section (1) of Section 14, or under Section 14A, shall be dealt with in accordance with the procedure specified in this section. E (2) The Controller shall issue summons, in relation to every application referred to in sub-section ( 1), in the form specified in the Third Schedule. F G H (3) (a) The Controller shall, in acquisition to, and simultaneously with, the issue of summons for service on the tenant, also direct the summons to be served by registered post, acknowledgment due, addressed to the tenant or his agent empowered to accept the service at the place where the tenant or his agent actually and voluntarily resides or carries on business or personally works for gain and may, if the circumstances of the case so require, also direct the pub lication of the summons in a newspaper circulating in the locality in which the tenant is last known to have resided or carried on business or personally worked for gain. (b) When an acknowledgment purporting to be signed by the tenant or his agent is received by the Controller or the registered article containing the summons is received 'Jack to have been made by a with an endorsement purporting postal employee to the effect that the tenant or his agent had refused to take delivery of the registered article, the Controller may declare that there has been a valid service of snmmons. ' • BUSCHING SCHMITZ (P)LTD. V. P. T. MENGHANI 319 (Krishna Iyer, J.) ( 4) The tenant on whom the summons is dully served (whether in the ordinary way or by registered post) in the form specied in the Third Schedule shall not contest prayer for eviction from the premises unless he files an aJfi davit stating the grounds on which he seeks to contest application for eviction and obtains leave from the Control ler as hereinafter provided; and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be committed by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid. A B (5) The Controller shall give leave to contest the application if the affidavit filed by tenant discloses such facts as would disentitle landlord from obtaining an order for the recovery of possession of the pre mises on the ground specified in clause (a) of the proviso to sub-section (1) of Section 14, or under Section 14A. to the tenant (6) Where leave is granted to the tenant to contest the application, the Controller shall commence the hearing of the application as early as practicable. (7) Notwithstanding anything contained in sub-section (2) of Section 17, the Controller ·shall, while holding an in quiry in a proceeding to which this Chapter applies, follow the practice and procedure of a Court of Small Causes, in- eluding the recording of evidence. (8) No appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section; Provided that the High Court may, for the purpose of sati'sfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit. (9) Where no application has been made to the High Court on revision, the Controller may exercise the powers of review in accordance with the provisions of Order XL VIX of the first Schedule to the Code of Civil Procedure, 1908 (5 of 1908). (10) Save as otherwise provided in this Chapter, the procedure for the disposal of an application for eviction on the ground specified in clause ( e) of the proviso to sub- section (1) of Section 14, or under Section 14A, shl\ll be the same as the procedure for the disposal of applications by Controllers." c D E F G H • • - 320 SUPREME COURT REPORTS (1977] 3 S.C.R. A B The landlord-respondent no. 1 wa's a government servant who 'had let !Us own building to the appellant-tenant (a company) to carry ou busmess and use part of it for its manager's residence. He himself residential premises allotted by the Central Govern- was occupying ment and, since Jie was directed by that Government to vacate, on the ground that he had let out 'residential accommodation' of which he was own.er, he _'sought .refuge uuder s. 14A. The eviction proceed- m~ ;vas resisted, inter alw, on the score that the ground did uot fall w1thm the sweep of s. 14A, the premises 'havina been Jet out for a residential-cum-commercial purpose to a joint st~ck company which was carrying ou its business .... besides using it for the residence of its Managing Director'. This plea did not cut ice with the Controller who refused leave to contest under s. 25B(4l of the Act. The 1efusal c would ordinarily have led to an order i'or eviction but this consequence was intercepted by a writ petition uuder Art. 226 of the Constitution and a revision to the High Court, a's provided by th~ proViso to sub- s. ( 8) of s. 25B of the Act. Dismissal of these proceedings has brought the appellant, special leave having been granted, to this Court as the last hope. Of course, the issue is of some moment, legally and otherwi'se. For while solving the twin problems, viz., making more accommodation available to government servants in need and ending the vice of officers gaining by letting their own residential houses, s. 14A creates another, viz., the ejectment of tenants by summary procedure on a new ground. Maybe, as between the two hardships Parliament has made the ch, oice and the Court implements the law based on the policy deci'sion of the legislature. Mr. Nariman sought to expose the weakness of this legislative policy by stating that nothing in s. 14A compelled the officer-landlorc! to occupy the premises after evicting the tenant. He could still let it for a higher rent, take on lease from the private sector a small house and make a gain flowing froni the difference in rents. While we, as Judges, cannot fail to apply the pro- vision merely because dubious ingenuitieS can circumvent it, we will later interpret the section eliminating the possible evil pointed out. D E " 'T "' 'II • '-"f F G H The short but insistent submission made by the counsel for the appellant was that tlJe Controller could not shut him out from being heard, as he did, if only a triable issue emerged from the affidavit-in- opposition filed under s. 25B(4). Such an issue (in fact, more than one) was obviously present here, urged counsel. But we make it plain even at this stage that it is fallacious to approximate (as was sought to be done) s. 25B(5) with Order 37, r. 3 of the Code of Civil Pro- cedure. The social setting demanding summary proceeding, the nature of the subject-matter and, above all, the legislative diction which has - been deliberately designed, differ in the two provisions. The ambit and judicial discretion are wider in the latter while, in the former with which we are concerned, the scope for opening the door to defence is narrowed down by the strict words used. The Controller's power to give leave to contest is cribbed by the condition that the 'affidavit filed by the tenant discloses such facfs as wouli dis.entitle the landl.ord from obtaining an order for the recovery of possess10n of the premises on the ground specified in cl. ( e) of the proviso to sub-s. (1) of s. 14 ' • . ( >- >- BUSCHING SCHMITZ (P) LTD. V. P. T. MENGHANI (Krishna Iyer, J.) 32 I or under s. 14A. Disclosure of facts which disentitle recovery of A possession is .a sine qua mm for grant of leave. Are there facts dis entitling the invocation of s. 14A? The thrust of Shri Nariman's contention is that s. 14A does not apply at all, as a matter of construction of the expression 'residen- tial premises'. This is net something factual but essentially and perhaps the question deserves our decision. For, if we explain, as declaratory of the law, what the true scope of s. 14A is, vis a vis the premises involved, the Controller may then proceed on that foot- ing and decide whether there is any fact disclosed which disentitlcs eviction. legal B • l Let us break down s. 14A, to the basic components_ creative of c the new right to recover possession of premises let to a tenant. 'Pre mises', by definition, covers any building or part of a building let for use, residential, commercial or other (s. 2(i)). We confine oursel- ves to the considerations relevant to our case. To attract s. 14A, the landlord must be in occupation of 'residential premises' allotted to him by the Central Government. He mu·st be required by order of that Government to vacate These are fulfilled here. The ground for such order to vacate must be 'that he owns, in the Union Territory of Delhi, a residential accom 'to re modation'. cover immediately possession of any premises let out by him' ( empha- sis added). If so, there accures to such landlord the right such 'residential accommodation'. D The bone of contention between the parties is as to whether the E a premises let out are 'residential accommodation'. pursuit of subtle nicety to chase the reason for using different expres sions like 'residential premises' and 'residential accommodation' in the If at all, 'accommodation' is ampler than 'premises'. sante section. If the building in dispute ans What is residential accommodation ? wers that description, the tenant must 'submit to eviction. So this is the key question. It may be F -~. , Admittedly, the building was let out for commercial purpose also. Is the purpose of the lease decisive of the character of the accommoda tion? For a long itme it was used as an office of the tenant's business, the manager also residing in a part thereof. Docs user clinch the issue ? At present, the main use to which the building is put is as residence of G the manager. The Delhi Development Authority granted the land to the govern ment servant-respondent for construction of a residential building al though he later let it out for non-residential use, apparently for gett- ing large rent_s, silencing his compunction about the basis on which he ·secured the allotment of the land at low cost. But can the court H conclude from the object of the land assignment whether the building later put up is residential or not ? Marginal relevance there may. be in these diverse factors, telling value they do not possess. Law, bemg 6-436SCI/77 A B c D E 322 SUPREME COURT REPORTS [1977] 3 S.C.R. pragmatic, responds to the purpcise for which it is made, cognises the current capabilities of technology and life-style of the community and flexibly fulfils the normative role, taking the conspectus of circum stances in the given case and the nature of the problem to solve which the statute was made. Legislative futility is to be ruled out so long as interpretative possibility permits. Residentiality depends for its sense on th~ conte1't and purpose of the statute and the project promoted. • Guided by this project-ori~nted approach, we reject .the rival ex . treme positions urged before us by Shri Nariman and Shri Jain. Resi dential premises are not only these which are let out for residential purposes as the appellant would have it. Nor do they cover all kinds of structures where humans may manage to dwell. If a beauh ful bungalow were let out to a businessman to run a show-room or to a meditation group or music society for meditational or musical uses, it remains none-the-less a residential accommodation. Otherwise, pre mises may one day be residential, another day commercial and, on yet a later day, religious. Use or purpose of the letting is no con clusive test. Likewise, the fact that many poor persons may sleep under bridges or live in large hume pipes or crawl into verandahs of shops and bazars cannot make them residential premises. That is a case of reductio ad absurdum. It can be both, as needs demand. Engineering skills and architectural designing have advanced far enough to make multi-purpose edifices and, by minor adaptations, make a buildi11g serve a residential, commercial or other use. The art of building is no longer rigid and the character of a -house is not It iS so common an 'either or'. to see a rich home turned into a business house, a dormitory into a factory. Many smallCscale industries are living quarters. To petrify engineering concepts is to betray the law's pur pose. Whatever is suitable or adaptable for residential uses, even by making some changes, can be designated 'residential premises'. And once it is 'residential' in the liberal sense, s. 14A stands attracted. Dictionary meaning, commonsense understanding and architectural engineering concur in the correctness of this construction. former G H What falls outside the ambit of 'residential purposes' may be limit ed but not non-existent. A shop in Connaught Place, a factory in an area prescribed by any municipal regulation for residential use or any sthlcture too patently non-residential such as a hothouse for bo tanical purposes or a bath and toilette or teashop by the road margin are obvious instances. We may visualise other cases but that is not our purpose here. The house we are considering wa·s built on land given for constructing a residence is being used even now for resi dence, is suitable otherwise for residence and is being credibly demand ed for the respondent's residence. Residential suitability being the basic consideration, this building fills the bill. Nothing said in the affidavit-in-opposition puts it out of the pale of residential accom modation. A building which reasonably accommodates a residen- • --\-. ' BUSCHING SCHMITZ (P) LTD. V. P. T. MENGHANI 323 (Krishna Iyer, J.) tial user is a residential accommodation-nothing less, nothing else. The circumstances of the landlord are not altogether out of place in reaching a right judgment. The 'purpose test' will enable officers who own houses to defeat the government by pleading that they do not own 'residential premises' because the lease is for commercial use, built though it was and suitable though it is, for residence. Similarly, the 'possibility test' may make nonsense of the provision. The con trast in the phraseology betweens. 14(1) (e) and s. 14A strengthens our inference. The legislature has, in the former provision, used the expression 'premises let for residential purposes', thus investing purpose of the lease with special significance. The deliberate omis sion of such words in s. 14A and, instead, the use of the flexible but potentially more comprehensive, though cryptic, expression 'residen tial accommodation' cannot be dismissed as accidental. Shri Nariman argued that the court must have the power to con sider whether the order of the government stating that the govern ment servant's building is residential, is valid or no.t. We do not deny that in the last resort it i's within the Court's province to do so. Bnt it must give due-not deadly-weight to the decision of government that the premises owned by its officer is residential. Per versity and mala {ides will, of course, invalidate government orders here, as elsewhere. They are the exceptions but as a practical guide line, the government's order may be taken a·s correct. For, after all, while courts must finally pronounce, others familiar with the work-a day world and enquire before passing orders are not too inexpert or incompetent to be brushed aside. The power to render binding deci sions vests in the judicial process, not because it is infallible or occult but because it Is habitually independent and professionally trained to consider contending view points aided by counsel for a adversaries. The humility that makes for wisdom behoves the judge to show res pect for-not obedience to-the view of an administrative agency. There remains the conundrum raised by Shri Nariman. Suppos ing the landlord, after exploiting the easy process of s. 14A, re-lets the premises for a higher rent; the social goal boomerangs because tenant is ejected and the landlord does not occupy, as he would have been bonnd to do, if he had sought eviction for bona fide occupation under s. 141(e). Section 19 obligates the landlord in this behalf. In literal terms, that section does not apply to eviction obtained under s. 14A. But the ~cheme of that section definitely contemplates a ~ecific representation by the petitioner-landlord to the Controller that because he has been ordered to vacate the premises where he is residing, therefore he requires immediate possession for his occupa tion. The non-obstante clause, the ve'sting of a right to immediate recovery, the creation of a summary process under s. 25B and the package of connected provisions, a:u emphasize that ·the amendments have to be viewed as a whole, that the Court cannot be fooled and the stafute mocked at. The law, as Mr. Bumble (in Oliver Twist) said. 'is a ass-a idiot', but today the socio-economic project cannot be frustrated by legalistics. Underlying the whole legislative plan and provision is the fundamental anxiety to recover, for the officers occu pation, his own premises. Once we grasp this cardinal point, the A B c D E F G H .l • 324 SUPREME COURT REPORTS [ 1977] 3 s.c.R. A B c D E officer's application for eviction under s. 14A can be entertained oniy on his averment that he, having been asked to vacate, must get into possession of his own. For instance, if he has a vacant house of his own and, on getting an order to vacate, he moves into his vacant house, he cannot thereafter demand recovery under s. 14A. The cause of action is not only the government order to vacate, but his consequential urgency ra~<onale legis. To interpret otherwise is to vindicate Mr. Bumble l We hold that Shri Nariman's apprehension is unfounded and s. 14A is largely a rider to s. 14 and the condition indicated in s. 19 must, mutatis mutandis, bind the landlord. Parliament cannot be assumed not to intend the obvious, or to intend not right where absurdity is the result. to recover his own building. That ludicrous. Literality · The same result is reached by reading into every application for eviction by a landlord a necessarily implied representation to court that for the reason of his being directed to get out he must be given possession of his own residence for his own occupation with the aid of If the finale is reached and possession obtained, the judicial process. the Court will not allow a party to reduce its process to a mere make. believe, or a clever parody, breaking faith with the judicial process itseif. Such paths can be interdicted by the use of the inherent power of the court. The re-letting to someone else or non-occupa- tion, even after a reasonable time or without reasonable cause, will be regarded as an abuse of the process of the court and, at the instance of the affected tenant or otherwise, the eviction order cancelled and possession restored. We affirm this legal position Jest overly cute but qualmless landlords should hopefully hoax the court and decree to a joke. Every tribunal has the inherent power to prevent its machinery from being made a sham, thereby running down the rule of law itself as an object of public ridicule. It will and must prove any strategem self-defeating if a party indulges in making the law the langhing stock, for, the court will call him to order. reduce We are not adventuring into any innovation of legal principle inhibiting unconscionability in the enforcement of rights. Lord Denn ing M. R. said : F "What is the justification for the courts in this or any other case, departing from the ordinary meaning of words ? If you examine all the cases you will, I think, find that at bottoll) it _is because the clause (relieving a man from his own negligence) ls unreasonable or is being applied unreasonably in the circumstances of the particular case. The judges have then, time after time, sanctioned a departure from the ordi- nary meaning ...... Are the courts then powerless ? Are they to permit the party to enforce his unreasonable clause, even when it is nnconscionable, or applied so unreasonably I as to be nnconscionable ? When it ~ets to this point, would say, as I said many years ago : 'There is the vigilance of the common law which, while allowing freedom of contract, watches to see that it is not abused.' " x x x x x G H r BUSCH!NG SCHMITZ (P) LTD. V. P. T. MENGHANI 325 (Krishna Tyer, !.) He continued : "I know that the judges hitherto have never confessed openly to the test of reasonableness. But it has been the driving force behind many of the decisions."(') We agree that, in the words of Lord Erskine, 'there is no branch of the jurisdiction of this couft more delicate than that, which goes to restrain the exercise of a legal right'. But the principle of uncon scionability clothes the court with the power to prevent its pro cess being rendered a parody. The justice of the law steps in end, in the area of eviction 0£ a tenan~ by a landlord, the tribunal cannot tolerate double-dealing or statute. intendment of thwarting The same conclusion can be reached through another line reasoning expressed by Justice Jackson of the Supreme Court of the United States in D' Cench Duhme: (2 ) "If the judicial power is helpless to protect a legislative program from schemes for easy avoidance, then indeed it has become a handy implement of high finance. . . . Once purpose or effect of the scheme is clear, once the legislative policy is plain, we would indeed forsake a great tradition to say we were helpless to fashion the instruments for appro- priate relief." A B c D The doctrine that the judicial machinery, while enforcing the law, E shall forbid its being misused is another dimension of two deeply rooted, but inter-connected maxims. Actus curiae neminem gravabit (An act of the court shall prejudice no man : J enk. Cent. 118) and Actus legis est damnosus (The act of the law is hurtful to no one : 2 Inst. 287) : Actus legis nemini facit in-juriam (The act of the law docs injury to no one : 5 Coke. 116). This principle is fundamen- tal to any system of justice and applies to our jurisprudence. An Aftnword • The possibility of the power of government to issue orders If vacate being used discriminatorily should be carefully avoided. exceptions are made in the case of big officers, naturally the middling It .may and the lesser minions of government may have a grievance. perhaps be proper if government, when allotting good premises for high officers who make from thair own houses large returns by way o[ rentals, makes them pay into government coffers some equitable part of the gain so made, giving consideration to circumstances like loans, investments and the like. This, again, is a matter falling with- (0 39 Mod. L.R. 379 (1976) (2) Referred to in 318 U.S. 366, at 366-67; Quoted in Univ. of Pennsylvania Law Review Vol. 117 (1968) p. I, 63. F G H 326 SUPREME COURT REPORTS (1977) 3 S.C.R. A in the province of the sense of justice of the Administration. But we mention it only to save the legislation from the aspersion of invi diousness in the exercise of the power. In the view we have already taken, it follows that the appeal must be dismissed and we hereby do so; but the parties, in the circumst ances, will bear their own costs throughout. B P.H.P. Appeal dismissed. '