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Appeal No. 260 of 1953 and connected appeal (C.A. No. 12 of 1954).
Appeals from the Judgment and Decree dated the 11th day of May 1951 of the High Court of Judicature at Patna in Miscellaneous Appeal No. 253 of 1950 and in appeal from Original Order No. 252 of 1950 arising out of the order dated the 11th day of May 1951 of the Court of Subordinate Judge, Dhanbad in Suit No. 34 of 1949 and in Title Suit No. 27 of 1949 respectively.
Mahabir Prasad, Advocate General for the State of Bihar (section P. Varma and M. Sinha, with him), for the appellant (In Civil Appeal No. 260 of 1953).
Mahabir Prasad, Advocate General for the State of Bihar (M. M. Sinha for R. C. Prasad, with him), for the appellant (In Civil Appeal No. 12 of 1954).
7 50 C. K. Daphtary, Solicitor General for India (Porus A. Mehta and P. G. Gokhale, with him), for the respondent (In both the Appeals).
March 24.
The Judgment of the Court was delivered by BOSE J.
This appeal and Civil Appeal No. 12 of 1954, which will also be governed by this judgment, raise the same points though there are some differences in the facts.
We will deal with Civil Appeal No. 260 of 1953 first.
The suit there related to an arbitration matter.
The appellant before us, whom it will be convenient to call the contractor, entered into a contract with the Dominion of India through an Additional Chief Engineer of the C.P.W.D. on 1 11 1945 for the supply of bricks to the C.P.W.D., a department of the Dominion Government.
Disputes arose about a number of matters.
Clause 14 of the agreement provided that all disputes arising out of or relating to the contract should be referred to the Superintending Engineer of the Circle for the time being.
Accordingly, there was a reference on 21 1 1949 and an award followed on 8 5 1949.
It was filed in the Court of the Subordinate Judge, Dhanbad, and the contractor prayed that it be accepted and that a decree be passed in terms of it.
The Dominion of India filed objections under section 30 of the and prayed that the award be set aside and alternatively that it be modified or corrected.
The contractor 's application was registered as a suit under section 20(2) of the Act and a decree was passed in terms of the award on 18 3 1950.
By that time the Constitution had come into force and the Union of India replaced the Dominion of India as a defendant.
The Union of India filed an appeal to the High Court.
The appeal was allowed in part.
The contractor thereupon appealed to this Court.
The dispute that was referred to the arbitrator consisted of 17 heads of claim but only three of them are contested here, namely items 5, 8 and 17.
51 In the 5th head of claim the contractor claimed Rs. 75,900 as the price of 88 lacs of katcha bricks that were destroyed by rain.
These bricks were not the subject matter of the contract but the contractor put his claim in this way.
The contract was for the supply of 2 1/2 crores of pucca bricks which bad to be delivered according to the following schedule 30 lacs by 25 1 46 50 lacs by 25 2 46 55 lacs by 25 3 46 55 lacs by 25 4 46 60 lacs by 25 5 46.
Delivery was to be at the kiln site.
In order to keep to this schedule the contractor bad to think ahead and work to a particular time table.
First, he had to prepare katcha or unbaked bricks and place them in his kilns for baking.
While this lot was baking be had to prepare and stock another lot of katcha bricks ready to take the place of the baked bricks as soon as they were removed.
It was the duty of the C.P.W.D. to remove these bricks as soon as they were ready for delivery,that is to say, as soon as they were fully baked.
At a certain stage of the contract the C.P.W.D. failed to remove the baked bricks which were ready for delivery and removal.
This caused a jam in the kilns and prevented the contractor from placing a fresh stock of unburnt bricks in the kilns, and in the meanwhile his stock pile of katcha bricks ready for baking kept on mounting up.
Had everything been done to time the 2 1/2 crores of bricks would have been delivered before the rains set in.
But owing to the default of the C.P.W.D. in not removing the burnt bricks which were ready for removal, delay occurred in the time table and the rains set in with the result that88 lacs of katcha bricks were destroyed by the rains.
As this loss was occasioned by the default of the C.P.W.D. the contractor claimed that be should be paid their price.
The reply of the Union Government was two fold.
First, it contended that the katcha bricks formed no part of the contract and even if it was at fault in not 52 taking delivery of the burnt bricks in time all that it could be held liable for would be for breach of that contract; and said that the loss that was occasioned by the damage caused to the katcha bricks which formed no part of the contract was too remote.
Secondly, that compensation for this loss could not in any event be claimed because this kind of situation was envisaged by the parties when the contract was made and they expressly stipulated that the Dominion Government would not be responsible.
The Union Government relied on additional clause 6 of the agreement which is in these terms: "The department will not entertain any claim for idle labour or for damage to unburnt bricks due to any cause whatsoever".
The arbitrator held that this clause was not meant "to absolve the department from carrying out their part of the contract" and so he awarded the contractor Rs. 64,075 under this head.
We are clear that the arbitrator went wrong in law.
Government departments have their difficulties no less than contractors.
There is trouble with labour, there is the likelihood of machinery breaking down in out of the way places and so forth; there was also the danger of thunder storms and heavy showers of rain in the month of May: it will be remembered that the last date of delivery was 25 5 46 if, with that in view, Government expressly stipulated, and the contractor expressly agreed, that Government was not to be liable for any loss occasioned by a consequence as remote as this, then that is an express term of the contract and the contractor must be tied down to it.
If he chose to contract in absolute terms that was his affair.
But having contracted he cannot go back on his agreement simply because it does not suit him to abide by it.
This is not to say that Government is absolved from all liability, but all it can be held responsible for is for damages occasioned by the breach of its contract to remove the pucca bricks which it had undertaken to remove.
But what would such a breach entail? 53 The contractor had a duty under section 73 of the Contract Act to minimise the loss, accordingly he would have had the right to remove the bricks himself and stack them elsewhere and claim compensation for the loss so occasioned; and indeed two of his heads of claim (not in dispute here) relate to that.
He has been awarded Rs. 11,744 11 0 under claim No. 4 for the extra load in connection with the stacking of I crore 7 lacs of bricks due to the accumulation at the kiln site owing to the department 's failure to work to its part of the time table, and in addition, he has been given Rs. 15,500 under claim 13 for the cost of levelling and dressing land to enable him to stack these extra bricks.
Alternatively, he could have sold the bricks in the market and claimed the difference in price, but ordinarily he could not have claimed compensation for damage done to the katcha bricks unless he could have shown that that kind of damage, ordinarily too remote, was expressly contemplated by the parties when the contract was made: section 73 of the Contract Act.
Here it is clear that this was in their express contemplation and they chose to provide against such a contingency by making clause 6 an express clause in their contract.
There can therefore be no doubt that the arbitrator was wrong in his law.
His construction of the terms of the contract was at fault.
The question now arises whether his decision on this point is final despite it being wrong in law.
In India this question is governed by section 16(1) (c) of the of 1940 which empowers a Court to remit an award for reconsideration "where an objection to the legality of the award is apparent upon the face of it".
This covers cases in which an error of law appears on the face of the award.
But in determining what such an error is, a distinction must be drawn between cases in which a question of law is specifically referred and those in which a decision on a question of law is incidentally material (however necessary) in order to decide the question actually referred.
If a question of law is specifically referred and it is evident that the 54 parties desire to have a decision from the arbitrator about that rather than one from the Courts, then the Courts will not interfere, though even there, there is authority for the view that the Courts will interfere if it is apparent that the arbitrator has acted illegally in reaching his decision, that is to say, if he has decided on inadmissible evidence or on principles of construction that the law does not countenance or something of that nature.
See the speech of Viscount Cave in Kelantan Government vs Duff Development Co.(1) at page 409.
But that is not a matter which arises in this case.
The law about this is, in our opinion, the same in England as here and the principles that govern this class of case have been reviewed at length and set out with clarity by the House of Lords in F. B. Absalom Ltd. vs Great Western (London) Garden Village Society(1) and in Kelantan Government vs Duff Development Co.(1).
In Durga Prasad vs Sewkishendas (3) the Privy Council applied the law expounded in Absalom 's case(2) to India: see also Champsey Bhara & Co. vs Jivraj Balloo Spinning and Weaving Co.(4) and Saleh Mahomed Umer Dossal vs Nathoomal kessamal (5).
The wider language used by Lord Macnaghten in Ghulam Jilani vs Muhammad Hassan(1) bad reference to the revisional powers of the High Court under the Civil Procedure Code and must be confined to the facts of that case where the question of law involved there, namely limitation, was specifically referred.
An arbitrator is not a conciliator and cannot ignore the law or misapply it in order to do what he thinks is just and reasonable.
He is a tribunal selected by the parties to decide their disputes according to law and so is bound to follow and apply the law, and if he does not, he can be set right by the Courts provided his error appears on the face of the award The single exception to this is when the parties choose specifically to refer a question of law as a separate and distinct matter.
(1) (2) (3) , 79.
(4) 50 I.A. 324, 330 & 331.
(5) 54 I.A. 427, 430.
(6) 29 I.A. 51, 60.
55 Reference was made to a decision of this Court in A. M. Mair & Co. vs Gordhandass Sagarmull(1) where Fazl Ali, J. quoted a passage from Viscount Simon 's speech in Heyman vs Darwins Ltd.") where the learned Lord Chancellor (Viscount Simon) in turn, quoted from Lord Dunedin in another case.
It was argued on the basis of this that if you have to have recourse to the contract to establish your case, then the dispute must fall within the arbitration clause.
That is undeniable but it is not enough that the dispute should fall within the clause.
It is also necessary that the parties should define what the dispute is and agree to refer the dispute so set out and defined to arbitration, or, if they do not, that the Court should compel them to do so: (see Lord Macmillan in Heyman 's case(1) just cited at pages 369 and 370).
If, therefore, no specific question of law is referred, either by agreement or by compulsion, the decision of the arbitrator on that is not final however much it may be within his jurisdiction, and indeed essential, for him to decide the question incidentally.
Lord Russell of Killowen and Lord Wright were both in the earlier case, F. R. Absalom Ltd. vs Great Western (London) Garden Village Society(1), as well as in Heyman 's case(2) and they would have pointed to any distinction had there been a likelihood of conflict; but in fact there is none and we do not read Fazl Ali J. 's judgment as a decision to the contrary.
We have next to see whether the arbitrator was specifically asked to construe clause 6 of the contract or any part of the contract, or whether any question of law was specifically referred.
We stress the word "specifically" because parties who make a reference to arbitration have the right to insist that the tribunal of their choice shall decide their dispute according to law, so before the right can be denied to them in any particular matter, the Court must be very sure that both sides wanted the decision of the arbitrator on a point of law rather than that of the Courts and that they wanted his decision oil that point to be final.
(1) ; at 798.
(2) at 368.
(3) 56 The clause in the contract that requires disputes about the contract to be referred to arbitration is clause 14 and is in the following terms: "Except where otherwise provided in the contract all questions and disputes relating to the meaning of the specification and instructions here in before mentioned and as to quality of materials or as to any other question, claim, right, matter or thing whatsoever in any way arising out of or relating to the contract, specification, instructions, orders or these conditions, or otherwise concerning the supplies whether arising during the progress of delivery or after the completion of abandonment thereof shall be referred to the arbitration of the Superintending Engineer of the Circle for the time being in the manner provided by law relating to arbitration for the time being in force who after such investigation as he may think proper shall deliver his award which shall be final, conclusive and binding on all parties to the contract".
The dispute sprang out of a series of claims made in a number of letters written by the contractor to the Additional Chief Engineer, C.P.W.D. and culminated in a petition, exhibit B(1), in which the contractor summarised his claims.
The document is not dated.
On receipt of this, someone on behalf of the C.P.W.D. invoked the jurisdiction of the arbitrator.
That letter has not been filed.
The arbitrator then wrote to the contractor and asked him to submit a statement of claim.
That letter has not been filed either but reference is made to it in exhibit C(1), the statement claim which the contractor filed in response to that letter.
As the material documents setting out the terms of reference are not here, we were asked by both sides to infer what the terms were from this statement of claim and the recitals in the award.
The learned counsel for the contractor relied on the following: In the statement of claim "Item 5.
Loss of katcha bricks. .
Rs. 75,900.
The chief reason of the destruction of these bricks was the failure of the department to lift the 57 monthly quota of bricks The argument of the department that they are not liable to compensate us on this account because of clause 6 of the agreement is not correct.
Clause 6 refers to only such cases over which the department has no control.
But if the department would have lifted the bricks (this was entirely under their control) then no such loss would have occurred.
Also be it noted that clause 6 refers only to 'damage ' and not to 'destruction. .
Damage means only partial loss. . .it cannot mean total destruction.
: The award states "The statement of claims submitted by the contractor contains seventeen items in respect of which the contractor claimed a total payment of Rs. 4,76,138 12 0 plus interest i.e., approximate total amount claimed: Rs. 5,03,803 12 0 as detailed below".
Then follow the seventeen items of which item 5 is "Payment for katcha bricks destroyed by rain: Rs. 75,900".
The body of the award deals with this as follows: " Claim No. 5.
Payment for 88.
lacs of katcha bricks destroyed by rain.
The contractor argued etc The Executive Engineer stated . .
The C.P.W.D. moreover were safeguarded by clause 6 of the contract. .
The contractor maintained that clause 6 of the contract could not be invoked when the department was at fault as in this case.
Clause 6 was meant to cover contingencies which were not of the department 's own making.
I hold that the removal of the bricks in such a manner or to prevent accumulation in excess of 60 lacs was an implied contractual obligation on the part of the C.P.W.D. .
I further hold that the C.P.W.D. cannot take shelter behind clause 6 of the contract.
This clause is not, in my opinion, meant 8 58 to absolve the department from carrying out their part of the contract.
It is impossible not to admit this without offending the rudiments of common sense reasoning".
We are of opinion that this is not the kind of specific reference on a point of law that the law of arbitration requires.
In the first place, what was shown to us is no reference at all.
It is only an incidental matter introduced by the Dominion Government to repel the claim made by the contractor in general terms under claim No. 5.
In the next place, this was the submission of the contractor alone.
A reference requires the assent of both sides.
If one side is not prepared to submit a given matter to arbitration when there is an agreement between them that it should be referred, then recourse must be had to the Court under section 20 of the Act and the recalcitrant party can then be compelled to submit the matter under sub section (4).
In the absence of either, agreement by both sides about the terms of reference, or an order of the Court under section 20(4) compelling a reference, the arbitrator is not vested with the necessary exclusive jurisdiction.
Therefore, when a question of law is the point at issue, unless both sides specifically agree to refer it and agree to be bound by the arbitrator 's decision, the jurisdiction of the Courts to set an arbitration right when the error is apparent on the face of the award is not ousted.
The mere fact that both parties submit incidental arguments about a point of law in the course of the proceedings is not enough.
The language of Lord Wright in F. R. Absalom Ltd. vs Great Western (London ) Garden Village Society(1), a case similar to this so far as this point is concerned, is apposite here "There is here no submission of any specific question of law as such and as a specific question of law; no doubt incidentally, and indeed necessarily, the arbitrator will have to decide some questions on the construction of the building contract, but the two matters submitted are both composite questions of law and fact; there is no express submission of the (1) , 616.59 true effect of the contract on the basis of undisputed facts, as in the Kelantan case(1) or as a separate and distinct matter on facts to be separately assumed or found, as in In re King and Duveen(2). .
The arbitrator was not being asked simply and specifically to decide, upon some agreed or assumed basis of fact, the true interpretation of either clause 26 or clause 30 of the conditions or of both together; he was being required to make an award on the two matters submitted on whatever questions of fact and law might emerge".
Clause 32 of the contract in the House of Lords case was the equivalent of clause 14 in ours.
It ran "Provided always that in case any dispute or difference shall arise . . . as to the construction of the contract or as to any matter or thing arising thereunder. . such dispute shall be and is hereby referred to the arbitration and final decision of etc.
" The arbitrator relied on that to invest him with juris diction to determine,, as a matter of law, the construction of clauses 26 30 of that contract.
The House of Lords held that in the absence of a specific reference about the construction of the contract the jurisdiction of the Courts was not taken away.
Lord Russell of Killowen put it this way at page 610 "No specific question of construction or of law was submitted.
The parties had, however, been ordered to deliver pleadings, and by their statement of claim the contractor had claimed that the arbitrator should under his powers revise the last certificate issued etc.
It is at this point that the question of the construction of condition 30 arose as a question of law, not specifically submitted, but material in the decision of the matters which bad been submitted.
This question of law the arbitrator has decided; but if upon the face of the award he has decided it wrongly his decision is, in my opinion, open to review by the Court".
That is exactly the position here.
Simply because the matter was referred to incidentally in the pleadings (1) (2) , 36.60  and arguments in support of, or against, the general issue about liability for damages, that is not enough to clothe the arbitrator with exclusive jurisdiction on a point of law.
The next question is whether the error is apparent on the face of the award.
That; in our opinion, is clear from the passages we have quoted from the award.
We hold that clause 6 expressly relieves the Union Government of all liability under this head of claim and that the arbitrator was wrong in awarding any sum on that account.
The next head in dispute is item No. 8 in the statement of claim: "Cost of additional wages paid to the coolies on account of non supply of ration and cloth Rs.
51,495".
Here again no specific question of law was referred, so all we have to see is whether there is an error of law apparent on the face of the award.
The contractor put his case as follows in the statement of claim: "At the time when this work was allotted to us there was rationing system in the locality.
As per conditions of contract we were bound not to employ local labour and we had to import coolies from far off places.
We had in our employ about 1800 coolies and it was an impossibility to arrange their ration from open market.
This difficulty was brought to the notice of the authorities concerned, and they promised us to supply ration.
It was only after this promise that we signed the agreement. .
From a perusal of these letters it is clear that the department promised us to supply ration. . .
These circumstantial evidences are sufficient enough to show that there was a mutual understanding between the parties that ration will be supplied.
In the eyes of law even circumstantial evidence is sufficient to prove that such a promise was made.
Any breach of that promise makes the department legally liable to compensate for that loss. .
Apart from the legal responsibility it was also a moral responsibility for the department to supply ration".
61 This claim, therefore, was not grounded on any clause of the contract, nor was it said to be implied in the contract.
What was relied on was a collateral promise evidenced, not by the contract, but by two letters written by "the department" and a promise by "the authorities concerned"; and later this promise is turned into a "mutual understanding" and to a "moral responsibility" in addition to a legal one.
The arbitrator dealt with this as follows.
He began by saying "The contractor stated that when he submitted his tender on 25 9 45 he did so in the bona fide belief that the department would make the necessary arrangements, etc.
" Then he sets out the following dates.
On 1 11 45 the contractor was told that his tender had been accepted.
On 9 11 45 the contractor "warned" the Executive Engineer about his "immediate requirements in respect of rations".
The contract was finally accepted and signed on 22 11 45.
Now it is admitted that the contract contains no clause about rations and it is also evident that the question was not raised when the tender was accepted on behalf of the Dominion Government.
The question was raised in a letter to the Executive Engineer, and the contractor signed the contract without waiting for a reply.
It is well settled that governments can only be bound by contracts that are entered into in a particular way and which are signed by the proper authority.
A reference to the agreement, exhibit A(1), will show that it was accepted on behalf of the Dominion Government by the Additional Chief Engineer and not by an Executive Engineer.
A letter written to the Executive Engineer would therefore have no effect and even if it be assumed that the letter was forwarded to the Additional Chief Engineer for consideration, what does it amount to? A tender embodying certain terms is submitted and is accepted on 1 11 45.
Both sides are agreed on all matters contained in it and their conduct shows that both sides indicated that the contract should be reduced to writing.
Be 62 fore the agreement is signed, one party wants to include a further condition in the contract.
We will assume that the request was made to the other contracting party.
But without waiting for the assent of the other side, both sides accept and sign the contract as it existed before the fresh suggestion was made.
It is an error in law to deduce from this that there was acceptance of the fresh proposal.
On the contrary, the legal conclusion is that the new suggestion was dropped and that the contractor was content to accept the contract as it was without ' this condition.
In any case, a person cannot be bound by a one sided offer which is never accepted, particularly when the parties intend that the contract should be reduced to writing.
That is the whole point of insisting on a document.
It excludes speculation as to what was and what was not agreed to however much the matter might have been raised by one of the parties during the stage of negotiation.
The arbitrator continues that the contractor stated that "it was a well known and established fact that Sindri was a rationed area; that the C.P.W.D. were giving rations at controlled rates to their employees and contractors through arrangements with the local Civil Supply Authorities; that nobody working under the C.P.W.D. was allowed to make independent arrangements or approach the Civil Supply Authorities direct" and the contractor contended that the very fact that he tendered such low rates showed that he expected to supply his labourers with rations at controlled rates.
The arbitrator then sets out some more of the contractor 's contentions and from them concludes that "there was an implied contractual obligation for the C.P.W.D. to make available controlled rations to the contractor and that this obligation was not fulfilled with due diligence and care".
He accordingly awarded Rs. 40,000 as compensation under this head.
The error is apparent.
Facts must be based either on evidence or on admissions; they cannot be found to 63 exist from a mere contention by one side especially when they are expressly denied by the other.
The inference from the facts stated above is that the contractor entered into the agreement with his eyes open and whatever his one sided hopes may have been he was content to enter into the agreement as it stood without binding the other side to the new conditions and without even waiting to ascertain the reaction of the other side to his further proposals.
It has to be remembered that rationing was not a matter that was under the direction and control of the Dominion Government.
It was a local matter handled by the then Provincial authorities and under their direction and contract.
The C.P.W.D., as a department of the Dominion Government, was not concerned with rationing except that its employees had to submit to rationing like everybody else in the Sindri area.
This confusion between the Dominion Government and the Provincial Government occurs in the arbitrator 's opening sentence under this head where he sets out the contractor 's contention that "commodities such as rations and cloth which were absolutely essential for the maintenance of his labourers and which were under Government control".
As the arbitrator bases solely on the contractor 's contentions it is evident that he failed to appreciate the fact that the Dominion Government and the Provincial rationing authorities were separate entities distinct from one another.
The position accordingly reduces itself to this: two persons, neither of which is a part of the Provincial Government or has any control over rationing, chose to enter into an agreement for work in a rationed area.
They insisted that their contract should be reduced to writing, and that indeed was essential, this being a contract with the Dominion Government which was incapable of contracting in any other way; they agreed upon and concluded all their terms; then, at the last minute, one side raised a point about rationing but without waiting for a reply and without having the term entered in the contract, he signed the contract as it stood before the point was raised even during the negotiation.
It is 64 an error in law to hold that any contractual obligation can be inferred or implied from these circumstances.
Then there is still another error.
If this implied agreement about rations and cloth does not spring out of the written contract but is to be inferred collaterally as a distinct and subsidiary contract, and we gather that that is the finding, especially as reference was made to section 9 of the Contract Act, then that is not a contract to which the arbitration clause can apply.
Wide though it is, clause 14 is confined to any matter relating to the written con tract and if ration and cloth are not covered by the written contract, they are not matters that relate to it.
If parties choose to add a fresh contract in addition to or in substitution for the old, then the arbitration clause cannot cover the new contract.
See Lord Macmillan in Heyman vs Darwins Ltd.(1).
The last item in dispute in this appeal is claim No. 17 about interest.
The statement of claims sets out "Item 17 Interest on the amount of money involved in this claim at the rate of Rs. 6 percent.
27,665.
This work was finished in May 1946 and it was proper for the department to have decided all our claims at least by 31st December 1947. . . .
But this was not done.
Due to this a heavy amount remained blocked up and we were compelled to take money from our bankers on interest.
We therefore pray for interest for 16 months from 1 1 48 to 31 4 49".
The arbitrator held "The contractor 's contention that his claims should have been settled by January 1948 is, in my opinion, reasonable.
I therefore award interest at 6% for 16 months on the total amount of the awards given i.e., Rs. 17,363".
Then the arbitrator sets out the amounts awarded under each head of claim.
A perusal of them shows that each bead relates to a claim for an unliquidated sum.
The Interest Act, 1839 applies, as interest is (1) at 371.65 not otherwise payable by law in this kind of case (see Bengal Nagpur Ry.Co. vs Ruttanji Ramji(1)), but even if it be assumed that an arbitrator is a "court" within the meaning of that Act, (a fact that by no means appears to be the case), the following among other conditions must be fulfilled before interest can be awarded under the Act: (1) there must be a debt or a sum certain; (2) it must be payable at a certain time or other wise; (3) these debts or sums must be payable by virtue of some written contract at a certain time; (4) There must have been a demand in writing stating that interest will be demanded from the date of the demand.
Not one of these elements is present, so the arbitrator erred in law in thinking that he had the power to allow interest simply because he thought the demand was reasonable.
It was suggested that at least interest from the date of "suit" could be awarded on the analogy of section 34 of the Civil Procedure Code, 1908.
But section 34 does not apply because an arbitrator is not a "court" within the meaning of the Code nor does the Code apply to arbitrators, and, but for section 34, even a Court would not have the power to give interest after the suit.
This was, therefore, also rightly struck out from the award.
We pause to note that there was only a delay of five days at the outside in the over all picture.
The last date for removal of the last instalment of bricks was 25 5 46 and the contractor says under this head that the whole contract was completed by the end of May, 1946.
It is difficult to see how 88 lacs of bricks could have been damaged by rain in the last five days of May, and if the damage occurred before it would have occurred anyway, for on the contractor 's case he had to have a large stack of unbaked bricks on hand ready to enter the kilns in order to keep pace with his time table.
However, that was a (1) 65 I.A. 66. 9 66 matter within the jurisdiction of the arbitrator and is not a matter in which the Courts can interfere.
That concludes Civil Appeal No. 260 of 1953 and we now turn to the other appeal, Civil Appeal No. 12 of 1954.
Only two items are in dispute here.
Heads 4 and 17 of the claim.
The over all pattern of the claim is the same as in the other case.
There was a contractor and he entered into an agreement containing the same terms and conditions, except about the details of supply.
It was signed on the same day as the other and by the same authority on behalf of the Dominion Government., and the matter went before the same arbitrator and the award in this case was given on 1 5 1949, one week before the other award.
Here also, no specific question of law was referred and we need not cover the same ground.
Our decision is the same here as there.
The fourth head of claim is about cloth and rations.
The claim here.
, and the Dominion Government 's reply, is the same as in the other case, but the award in this case is not based on an implied contractual obligation but on "a moral and implied obligation".
The error here is even greater than before.
The sum claimed was Rs. 51,495 and the amount awarded was Rs. 30,000.
The seventeenth head of claim was about interest.
The contractor claimed Rs. 27,665 and the arbitrator awarded Rs. 9,954.
There is the same error of law apparent on the face of the award.
The High Court was right in dismissing the claims made under the heads in dispute here.
The two appeals fail and each is dismissed with costs in this Court.
Appeals dismissed.

Output:
The appellant, a contractor, entered into a contract with the Dominion of India for the supply of bricks.
A clause in the contract required all disputes arising out of or relating to the contract to be refered to arbitration.
Disputes arose and the matter was duly referred.
The arbitrator gave an award in the contractor 's favour.
The Union Government, which by then had displaced the Dominion of India, contested the award on a number of grounds.
Held:(1) that it is not enough for the contract to provide for arbitration; more is necessary.
An arbitrator only gets jurisdiction when either, both the parties specifically agree to refer specified matters or, failing that, the court compels them to do so under the arbitration clause if the dispute is covered by it; (2) the legality of an award cannot be challenged on facts, but it can be challenged on questions of law provided the illegality is apparent on the face of the award: section 16(1)(c) of the ; (3) the only exception is when both parties specifically refer a question of law for the decision of the arbitrator.
In that event they are bound by his decision on that particular question as well as by his decision on the facts.
But a distinction must be drawn between cases in which a question of law is specifically referred and those in which a decision is incidentally material (however necessary) in order to decide the question actually referred.
The law about this is the same in India as in England.
and , followed.
at 79, 50 I.A. 324 at 330 49 331, 54 I.A. 427 at 430, 29 I.A. 51 at 60, at 368 referred to and ; at 798, explained; Quaere: Whether the courts will interfere when a question of law is specifically referred if the arbitrator acts illegally in deciding it, such as deciding on inadmissible evidence or on principles of construction which the law does not countenance.
at 409, referred to; (4) a wrong construction of the contract is an error of law and can be challenged provided the error appears on the face of the award; (5) so is the awarding of interest when the contract does not provide for interest and the requirements of the Interest Act are not fulfilled:65 I.A. 66, referred to.
Quaere: whether the Interest Act applies to arbitrations; (6) when a specific type of loss is directly contemplated by the parties to a contract and they expressly stipulate that no damages will be payable in respect of it they must be bound down to their agreement and any claim for damages in respect of such loss must be dismissed; (7) when the agreement on which the suit is based is not to be found in a contract which has been reduced to writing but has to be implied under section 9 of the Contract Act then the matter is not covered by an arbitration clause of the kind referred to above because the dispute in such a case arises out of and relates to the implied agreement and not to the written contract: at 371, referred to.


Input:
Appeals Nos.
1458 1459 of 1970.
Appeal by special leave from the judgment and order dated the 1st January, 1970 of the Allahabad High Court in S.T.R. No. 344 and S.T.R. No. 347 of 1967.
745 N. D. Karkhanis and 0.
P. Rana, for the appellant.
No. appearance, for the respondent.
The Judgment of the Court was delivered by SARKARIA, J.
The common question of law for determination in these appeals by special leave is ': Whether section 14(2) of the Limitation Act, in terms, or, in principle, can be invoked for excluding the time spent in prosecuting an application under Rule 68(6) of the J.P. Sales Tax Rules for setting aside the order of dismissal of appeal in default, under the U.P. Sales Tax Act, 1948 (for short, the Sales= Act), from computation of the period of limitation for filing a revision under that Act? It arises out of these circumstances.
The respondent, M/s. Parson Tools and Plants (hereinafter referred to as the assesse) carries on business at Kanpur.
The Sales tax Officer assessed tax for the assessment years, 1958 1959 and 1959 60, on the, assessee by two separate orders.
The assessee filed appeals against those orders before the Appellate Authority.
On May 10, 1963, when the appeals came up for hearing, the assessee was absent.
The appeals were, therefore, dismissed in default by virtue of Rule 68(5) of the U.P. Sales tax Rules.
Sub rule (6) of Rules 68 provided for setting aside such dismissal and re admission of the appeal.
On the same day (May 10, 1963), the assessee made two applications in accordance with Sub rule (6) for setting aside the dismissal.
During the pendency of those applications, Sub rule (5) of Rule 68 was declared ultra vires the rule making authority by Manchanda J. of the High Court who further held that the Appellate Authority could not dismiss an appeal in default but was bound to decide it on merits even though the appellant be absent.
When these, applications under Rule 68(6) came up for hearing, on 20 10 1964, the Appellate Authority dismissed them outright in view of the ruling of Manchanda J. Against the order of dismissal of his appeals, the assessee on 16 12 1964 filed two revision petitions under section 10 of the Sales tax Act,, before the Revisional Authority (Judge (Revisions) Sales tax).
These revision petitions having been filed more than 18 months after the dismissal of the appeals, which was the maximum, period of limitation prescribed by sub . 73) of s 10 were prima facie time barred.
They were however, accompanied by two applications in which the assessee prayed for exclusion of the time spent by him in prosecuting the abortive proceedings under Rule 68(6) for setting aside the dismissal of his appeals.
The Revisional Authority found that the assessee had been pursuing his remedy under Rule 68(6) with due diligence and in good faith.
It therefore excluded the time spent in those proceedings from computation of limitation by applying section 14, Limitation Act and in consequence, held that the revision petitions were within time.
On the motion of the Commissioner of Sales tax, the Revisional Authority made two references under section 11 (I) of the Sales tax Act to the High Court for answering the following question of law : "Whether under the circumstances of the case, section 14 of the Limitation Act extended the period for filing 746 of the revisions by the time during which the restoration applications remained pending as being prosecuted bona fide.
" The references were heard by a Full Bench of three learned Judges, each of whom wrote a separate Judgment.
Dwivedi J. with whom Singh J. agreed after reframing the question held "that the time spent in prosecuting the application for setting aside the order of dismissal of appeals in default can be excluded from computing the period of limitation for filing the revision by the application of the principle underlying section 14(2).
Limitation Act.
" Hari Swarup J. was of the opinion: "The Judge (Revisions) Sales tax while hearing the revisions under section 10 of the U.P. Sales Tax Act does not act as a Court but only as a revenue tribunal and hence the provisions of the Indian Limitation Act cannot apply to proceedings before him.
If the Limitation Act does not apply then neither section 29(2) nor section 14(2) of the Limitation Act will apply to proceedings before him.
," The learned Judge was further of the view that the principle of section 14(2) also, could not be invoked to extend the time beyond the maximum fixed by the Legislature in sub section (3 B) of section 10 of the Sales tax Act.
Sub section (2) of section 14, Limitation Act, runs thus "In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceedings, whether in a Court of first instance or of.
appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it." (emphasis added).
If will be seen that this sub section will apply only if (1) both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) the proceedings had been prosecuted with due diligence and in good faith; (3) the failure of the prior proceedings was due to a defect of jurisdiction or other cause of a like nature; (4) both the proceedings are proceedings in a Court.
Mr. Karkhanis, learned Counsel appearing for the appellant does not dispute the view taken by the High Court that the Proceedings in question under the Sales tax Act could be deemed as civil proceeding.
Learned Counsel, however, contends that the authorities, irrespective of whether they exercise, original, appellate or revisional 747 jurisdiction under the Sales tax Act are not 'Courts ' within the ' contemplation of section 14(2) of the Limitation Act.
It is pointed out that his question stands concluded by this Court 's decision in Jagannath Prasad vs State of U.P.(1) Mr. Karkhanis is right that this matter is no longer res Integra.
In Shrimti Ujjam Bhai vs State of U.P.(2) Hidayatullah J. (as he hen was) speaking for the Court, observed : "The taxing authorities are instrumentalities of the State,.
They are not a part of the legislature, nor are they a part of the judiciary.
Their functions are the assessment and collection of taxes and in the process of assessing taxes, they follow a pattern of action which is considered Judicial.
They are not thereby converted into Courts of Civil judicature.
They will remain the instrumentalities of the State and are within the definition of "State" in Article 12.
" The above observations were quoted with approval by this Court Jagannath Prasad 's case (supra), and it was held that a Sales tax officer under U.P. Sales tax Act, 1948 was not a Court within the meaning of section 195 of the Code of Criminal Procedure although he is required to perform certain quasi judicial functions.
The decision in jaganath Prasad 's it seems, *as not brought to the notice of he High Court.
In view of these pronocements of this Court, here is no room for argument that the Appellent Authority and the judge (Revisions) Sales tax exercising jurisdiction under the Salestax Act, are courts.
" They are merely administrative Tribunals and not courts." Section 14, Limitation Act, therefore does not, in terms apply to proceedings before such Tribunals.
Further question that remains is : Is the general principle underlying section 14 (2) applicable on grounds of Justice, equity and good conscience for excluding the time spent in prosecuting the abortive applications under Rule 68 (6) before the Appellate Authority., for computing limitation for the purpose of revision applications.
Mr. Karkhanis maintains that the answer to this question, also, must be in the negative because definite indications are available in the scheme and language of the Sales tax Act, which exclude the application of section 14(2), Limitation Act even in principle or by or by analogy.
Learned Counsel further submits that the ratio of the Privy Council decision in Ramdute Ramkissen Dass vs E. D. Sesson & Co.(s) relied upon by the majority judgment of the High is not applicable for computing limitation prescribed under the Sales tax Act.
Reference in this connection has been made to Purshottam Dass Hassaram vs Impex (India) Lid.(4) wherein a Division Bench of the Bombay High Court explained the rule of decision in Ramdutt 's case (supra) and found it to be inapplicable for the purpose of computing limitation for ap plications under the .
(1) ; (2) [1963] 1, S.C.R. 778.
(3) AlR , (4) A.I.R. 1954 Bom, 309 748 The material pail of s.10 runs thus : "(3) (i).
The Revision Authority. . may, for the purpose of satisfying itself as to the legality or propriety of any order made by any appellate or assessing authority under this Act, in its discretion call for and examine, either on its own motion or on the application of the Commissioner of gales tax or the person aggrieved, the record of such order and pass such order as it may think fit.
* * * * * * (3A). . (3B) The application under sub section (3) shall be made within one year from the date of service of the order complained of, but the Revising Authority may on proof of sufficient cause entertain an application within a further period of six months.
" Three features of the scheme of the above provision are noteworthy.
The first is that no limitation has been prescribed for the suo motu exercise of its jurisdiction by the Revising Authority.
The second is that the period of one year prescribed as, limitation for filing an application for revision by the aggrieved party is unusually long.
The third is that the Revising Authority has no discretion to extend this period beyond a further period of six months, even on sufficient cause shown.
As rightly pointed out in the minority judgment of the High Court, pendency of proceedings of the nature contemplated by section 14(2) of the Limitation Act, may amount to a sufficient cause for condoning the delay and extending the limitation for filing a revision application, but section 10 (3 B) of the Sales tax Act, gives no jurisdiction to the Revising Authority to extend the limitation, even in such a case, for a further period of more than six months.
The three star features of the scheme and language of the above provision, unmistakably show that the legislature has deliberately excluded the application of the principles underlying sections 5 and.
14 of the Limitation Act, except to the extent and in the truncated form embodied in sub section
(3 13) of section 10 of the Sales tax Act.
Delay in disposal of revenue matters adversely affects the steady inflow of reve nues and the financial stability of the State.
Section 10 is therefore designed to, ensure speedy and final determination of fiscal matters within a reasonably certain time schedule.
It cannot be said that by excluding the unrestricted application of the principles of sections 5 and 14 of the Limitation Act, the Legislature has made.
the provisions of section 10, unduly oppressive.
In most cases, the discretion to extend limitation, on sufficient cause being shown for a further period of six months only, given by sub section
( 3_B) would be enough to afford relief.
Cases are no doubt conceivable where an aggrieved party, despite sufficient cause, is unable to make an 749 application for revision within this maximum period of 18 months.
Such harsh cases would be rare.
Even, in such exceptional cases of extreme hardship, the Revising Authoritly may, on its own motion, entertain revision and grant relief.
Be that as it may, from the scheme and language of section 1 0, the intention of the Legislature to exclude the unrestricted application of the principles of sections 5 and 10 of the Limitation Act is manifestly clear.
These provisions of the Limitation Act which the Legislature did not, after due application of mind, incorporate in the Sales tax Act, cannot be imported into it by analogy.
An enactment being the will of the legislature, the paramount rule of interpretation, which overrides all others, is that a statute is to be expounded "according to the intent of them that made it".
"The will of 'the legislature is the supreme law of the land, and demands perfect obdience".(1) "Judicial power is never exercised" said Marshall C. J. of the United States, "for the purpose of giving effect to the will of the Judges; always for the purpose of giving effect to the will of the Legislature; or in other words, to the will of the law".
If the legislature wilfully omits to incorporate something of an 'analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation, by analogy or implication, something what it thinks to be a general principle of justice and equity.
To do so would be entrenching upon the preserves of Legislatures, 'The primary function of a court of law being jus dicere and not jus dare. ' In the light of what has been said above, we are of the opinion that the High Court was in error in importing whole hog the principle of section 14(2) of the Limitation Act into section 10 (3 B) of the Sales tax Act.
The ratio of the Privy Council decision in Ramdutt Ramkissen Dass vs E. D. Sasson & Co. (Supra) relied upon by the High Court is not on speaking terms with the clear language of section 10 (3 B) of the Sales tax Act.
That decision was rendered long before the passage of the Indian .
It lost its efficacy after the enactment of the which contained a specific provision in regard to exclusion of time from computation of limitation.
The case in point is Purshottam Dass Hussaram vs Index (India) Ltd. (supra).
In this Bombay case, the question was, whether the suit was barred by limitation.
It was not disputed that Article 115 of the Limitation Act governed the limitation and if no other factor was to be taken into consideration, the suit was filed beyond time.
But what was relied upon by the plaintiff for the purpose of saving (i) see Maxwell on interpretation of statutes, 11th Edn.,pp.l, 2 and 25l, 750 limitation was the fact that there were certain infructuous arbitration,, Proceedings and if the time taken in prosecuting those proceedings was eXcluded under section 14, the suit would be within limitation.
It was held that if section 14 were to be construed strictly, the plaintiff would not be entitled to exclude the period in question.
On the authority of Ramdutt Ramkissen 's case (supra), it was then contended that.
the time taken in arbitration proceedings should be excluded on the analogy of section 14.
This contention was also negatived on the ground that since the decision of the Privy Council, the legislature had in section 37(5) of the , provided as to what extent the provisions of the Limitation Act would be applicable to the proceedings before the arbitrator.
Section 37(5) was as follows : "Where the cow orders that an award be set aside or orders, after the commencement of an arbitration, that the arbitration agreement shall cease to have effect with respect to the difference referred, the period between the commencement of the arbitration and the date of the order of the Court shall be excluded in computing the time prescribed by the Indian Limitation Act, 1908, for the commencement of the proceedings (including arbitration) with respect to the difference referred.
" The reasons advanced, the observations made and the rule enunciated by Chagla C.J., who spoke for the Bench in that case, are opposite and may be extracted with advantage ". . we have now a statutory provision for exclusion of time taken up in arbitration Pr when a suit Is filed, and the question arises of computing the period of limitation with regard to that suit, and the time that has got to be excluded is only that time which is taken up as provided in section 37(5).
There must be an order of the Court setting aside an award or there must be an order of the Court declaring that the arbitration agreement shall cease to have effect, and the period between the commencement of the arbitration and the date of this order is the period that has got to be excluded.
it is therefore no longer open to the Court to rely on section 14 Limitation Act as applying by analogy to arbitration proceedings.
If the Legislature intended that section 14 should apply and.
that all the time taken up in arbitration proceedings should be excluded, then there was no reason to enact section 37(5).
, The very fact that section 37(5) has been enacted clearly shows that the whole period referred to in. a, 49 Limitation Act is not to be excluded but the limited '. indicated in section 37(5).
* * * * * * 751 "it may seem rather curious and it may also in certain cases result in hardship as to why the legislature should not have excluded all time taken up in good faith before an arbitrator just as the time taken up in prosecuting a suit or an appeal in good faith is excluded.
But obviously the Legislature did no t intend that parties should waste time infructuous proceedings before arbitrators.
The Iegisla ture has clearly indicated that limitation having once begun to run, no time could be excluded merely because parties chose to go before an arbitrator without getting an award or without coming to Court to get the necessary order indicated in section 37(5).
" What the learned Chief Justice said about the inapplicability of section 14, Limitation Act, in the context of section 37(5) of the , holds good with added force with reference to section 10 (3 B) of the Sales tax Act.
Thus the principle that emerges is that if the legislature in a special statute prescribes a certain period of limitation for filing a particular application thereunder and provides in clear terms that such period on sufficient cause being shown, may be extended, in the maximum, only upto a specified time limit and no further, than the tribunal concerned has no jurisdiction to treat within limitation, an application filed before it beyond such maximum time limk specified in the statute, by excluding the time spent in prosecuting in good faith and due diligence any prior proceeding on the analogy of section 14(2) of the Limitation Act.
We have said enough and we may say it again that where the legislature clearly declares its intent in the scheme and language of a statute, it is the duty of the court to give full effect to the same without scanning its wisdom or policy, and without engrafting, adding or implying anything which is not congenial to or consistent with such expressed intent of the law giver; more so if the statute is a taxing statute.
We will close the discussion by recalling what Lord Hailsham (1) has said recently, in regard to importation of the principles of natural justice into a statute which is a clear and complete Code, by itself : "It is true of course that the courts will lean heavily ,against any construction of a statute which would be manifestly fair.
But they have no power to amend or supplement the language of a statute merely because in one view (1)At P. 11 in Pearl Berg vs Varty , 752 of the matter a subject feels himself entitled to a larger degree of say in the making of a decision than a statute accords him.
Still less is it the functioning of the courts to form first a judgment on the fairness of an Act of Parliament and theft to amend or supplement it with new provisions so as to make it conform to that judgment.
" For all the reasons aforesaid, we are of the opinion that the object, the scheme and language of s.10 of the Sales tax Act do not permit the invocation of s.14(2) of the Limitation Act, either, in terms, or, in principle, for excluding the time spent in prosecuting proceedings for setting aside the dismissal of appeals in default, from com putation of the period of limitation prescribed for filing a revision under the Sales tax.
Accordingly, we answer the question referred, in the negative.
In the result, we set aside the judgment of the High Court and accept these appeals.
Since the appeals have been heard ex parte, there will be no order as to costs.

Output:
The Sales Tax Officer assessed tax for the assessment years 1958 1959 and 1959 60, on the respondent assessee by two separate orders.
The assessee filed appeals against those orders before the Appellate Authority.
On May 10, 1963, when the appeals came up for hearing, the assessee was absent.
The appeals were, therefore.
dismissed in default by virtue of Rule 68(5) of the U.P. Sates tax Rules.
Sub rule (6) of Rule 68.
provided for setting aside such dismissal and for re admission of the appeal.
On the same day (May 10, 1963), the assessee made two applications in accordance with Sub rule (6) for setting aside the dismissal.
During the pendency of those applications, Subrule (5) of Rule 68 was declared ultra vires the rule making authority by Manchanda J. of the High Court who further held that the Appellate Authority could not dismiss an appeal in default but was bound to decide it on merits even though the appellant be absent.
When these applications under r. 68(6) came up for hearing.
on 20 10 64, the Appellate Authority dismissed them outright in view of the ruling of Manchanda J. Against the order of dismissal of his appeals, the assesees on 16 12 1964 filed two revision petitions under section 10 of the Sales tax Act, before the [Judge (Revisions) Sales tax].
These revisions petitions having been filed more than 18 months after the dismissed of the appeals which was the maximum period of limitation prescribed by sub section
(3) of section 10 were prima facie time barred.
They were however, accompanied by two application 's in which the assessee prayed for exclusion of the time spent by him in prosecuting the abortive proceedings under r. 68(6) for setting aside the dismissal of his appeals.
The Revisional Authority found that the assessee had been pursuing his remedy under r. 68(6) with due diligence and in good faith.
It therefore excluded the time spent in those proceedings from computation of limitation by applying section 14, Limitation Act and in consequence, held that the revision petitions were within time.
On the motion of the Commissioner of Sales tax.
the Judge (Revisions) Sales *ax made two references under section 11(1) of the Sales_tax Act to the High Court for answering the following question of law "Whether under the Circumstances of the case, section 14 of the Limitation Act extended 'the period for filing of the revisions by the time during which the restoration applications remained pending as being prosecuted bona fid.
" The references were heard by a Full Bench of three learned Judges each of whom wrote a separate Judgment.
Dwivedi J. with whom Singh J. agree utter refraining the question held "that the time spent in prosecuting the application for setting aside the order of dismissal of appeals in default can be 744 excluded from computing the period of limitation for filing the revision by the application of the principle underlying section 14(2), Limitation Act.
" Hari Swarup J. was of the opinion : "The Judge (Revisions) Sales tax while hearing the revisions under section 10 of the U.P. Sales Tax Act does not act as a Court but only as a revenue tribunal and hence the provisions of the Indian Limitation Act cannot apply to proceedings before him.
If the Limitation Act does not apply then neither section 29(2) nor is 14(2) of the Limitation Act will apply to proceedings before him." The learned Judge was further of the view that the principle of section 14(2) also, could not be invoked to extend the time beyond the maximum fixed by the Legislature in sub section (3 B) of section 10 of the Sales tax Act.
These appeals have been preferred on the basis of the special leave granted by this court.
Allowing the appeals, HELD : (i) If the legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation, by analogy or implication, something what it thinks to be.
a general principle of justice and equity.
To do so "would be entrenching upon the preserves of Legislature", the primary function of a court of law being jus dicere and not jus dare.
[749D E] (ii) If the ' legislature in a special statute prescribes a certain period of limitation for filing a particular application thereunder and provides in 'clear terms that such period on sufficient cause being shown, may be extended, in the maximum, only upto a specified time limit and no further, then the tribunal concerned has no jurisdiction to treat within limitation, an application filed before it beyond such maximum time limit specified in the statute, by excluding the time spent in prosecuting in good faith and due diligence any prior proceeding on the analogy of section 14(2) of the Limitation Act.
[751D E] Ramdutt Ramkissen Dass vs E. D. Sesson & Co. A.I.R. 1929, P.C. 103 and Purshottam Dass Hassaram vs Impex (India) Ltd. A.I.R. 1954 Bom.
309, referred to.
(iii) In view of the pronouncements of this Court in Shrimati Ujjani Bhai vs State of U.P., and jagannath Prasad vs State of U.P. ; , there is no room for argument that the Appellate Authority and the Judge (Revisions) exencising jurisdiction under the U.P. Sales Tax Act, 1948, are 'Courts '.
They are merely administrative Tribunals and "not courts".
Section 14, Limitation Act, therefore, does not, in terms apply to proceedings before such Tribunals.
[747E] (iv) Three features of the scheme of provisions of section 10(3)(i) and section 10(3B) are noteworthy.
The first is that no limitation has been prescribed for the suo matu exercise of its jurisdiction by the Revising Authority.
The second is that the period of one year prescribed as limitation for filing an application for revision by the aggrieved party is unusually long.
The third is that the Revising Authority has no discretion to extend this period beyond a further period of six months, even on sufficient cause shown.
The three stark features of the scheme and language of these provisions, unmistakably show that the legislature has deliberately excluded the application of the principles of Ss. 5 and 14 of the Limitation Act.
except to the extent and in the truncated form embodied in sub section
(3 B) of section 10 of the Act.
[748D F]


Input:
(Civil) No. 3 of 1983.
(Under Article 32 of the Constitution of India).
WITH W.P. Nos.
4OO 402, 425, 492, 2493 2495, 2526 2528 of 1983 and 1256 of 1987.
Soli J. Sorabjee, Ravinder Narain, DA.
Dave and P.H. Parekh, for the Petitioners.
A.K. Ganguli, T.V.S.N. Chari Ms. Radha Rangaswamy and P. Parmeshwaran for the Respondents.
The Judgment of the Court was delivered by YOGESHWAR DAYAL J.
This order will dispose of the aforesaid writ petitions under Article 32 of the Constitution of India.
All these cases come under Item 18.1 and/or 18 III and/or 18E of the Tariff contained in the schedule attached to the Central Excise and Salt Act 1944 (hereinafter referred to as 'the Act ').
For facility of reference we are giving the facts of the case of Civil Writ Petition No. 3 of 1983.
144 This Writ Petition is stated to be covered by the decision of this Court in J.K Cotton Spinning and Weaving Mills Ltd. & another vs Union of India and others; , and the surviving prayer in the writ petition is to declare that the duty of excise in respect of Tariff Item Nos. 18 (A) (a), 18 (III) (ii) and 18E is to be levied and collected on the weight of the unsized yarn and not on the basis of the weight of the sized yarn".
Before we deal with the objections of the learned counsel for the respondents, it would be useful to examine the points which were involved in the aforesaid case of J.K Cotton Mills.
The appellants in the said case had a composite mill wherein it manufactured fabrics of different types.
In order to manufacture the said fabrics, yarn was obtained at an intermediate stage.
The yarn so obtained was further processed in an integrated process in the said composite mill for weaving the same into fabrics.
The appellants did not dispute that the different kinds of fabrics which were manufactured in the miff were liable to payment of excise duty on their removal from the factory.
They also did not dispute their liability in respect of yarn which was also removed from the factory.
It was the contention of the appellants therein that no duty of excise could be levied and collected in respect of yam which was obtained at an intermediate stage and, thereafter subjected to an integrated process for the manufacture of different fabrics.
On a writ petition, by those appellants, the Delhi High Court by its judgment dated 16th October, 1980 held that yarn obtained and further processed within the factory for the manufacture of fabrics could not be subjected to duty of excise.
It was the case of the appellants that in spite of the said decision of the Delhi High Court, the Central Board of Excise had wrongly issued a circular dated 24th September, 1980 purporting to interpret Rules 9 and 49 of the Central Excise Rules, 1944 (hereinafter referred to as the Rules ') and directing the subordinate excise authorities to levy and collect duty of excise in accordance therewith.
In the said circular, the Board had directed the subordinate excise authorities that use of goods in manufacture of another commodity even within the place/premises that have been specified in this behalf by the Central Excise Officers in terms of the powers conferred under Rule 9 of the Rules, will attract duty".
As the said circular was being implemented to the prejudice of the appellants, they filed the writ petition before the Delhi High Court, inter alia, challenging the validity of the said circular.
During the pendency of the writ petition in the Delhi High Court, the 145 Central Government by Notification No. 20/82 C.E. dated 20th February, 1982 amended Rules 9 and 49 of the Rules.
Section 51 of the Finance Act provides that the amendments in Rules 9 and 49 of the Rules shall be deemed to have, and to have always had the effect on and from the date on which the Rules came into force i.e. 28th February, 1944.
After the said amendments of the Rules with retrospective effect, the appellants amended the Writ petition and challenged the constitutional validity of Section 51 of the Finance Act, 1982 and of the amendments to Rules 9 and 49 of the Rules.
The High Court came to the conclusion that section 51 of the Finance Act, 1982 and Rules 9 and 49 of the Rules, as amended, were valid.
It was further held that the retrospective effect given by Section 51 of the Finance Act, 1982 will be subject to the provisions of Sections 11A and 11B of the Act.
It was further held that the yam which is produced at an intermediate stage in the mill of the appellants therein and subjected to the integrated process of weaving the same into fabrics, will be liable to payment of excise duty in view of the amended provisions of Rules 9 and 49 of the Rules.
But the sized yam which is actually put into the integrated process will not again be subjected to payment of excise duty for, the unsized yarn, which is sized for the purpose, does not change the nature of the commodity as yarn.
The Writ Petition was accordingly allowed in part, as stated aforesaid, and it was this decision which came up in appeal before this Court.
This Court agreed with the Delhi High Court and upheld the vires of Rules 9 and 49 of the Rules as well as Section 51 of the Finance Act, 1982.
This Court also agreed with the High Court that the retrospective effect given by section 51 of the Finance Act, 1982 will be subject to the Provisions of Sections 11A and 11B of the Act.
This Court also agreed with the view of the High Court that the yarn which is produced at an intermediate stage in the mill of the appellants and subjected to integrated process of weaving the same into fabrics, would be liable to payment of excise duty in view of the amended provisions of the Rules, But, this Court further agreed with the High Court, the sized yarn which is actually put into the integrated process will not again be subjected to payment of excise duty for, the unsized yarn, which is sized for the purpose does not change the nature of the commodity as yarn.
This Court observed at pages 720 and 721 of the report as under: "In the instant case, the appellants are liable to pay excise duty on the yarn which is obtained at an intermediate stage and, thereafter, further processed in an integrated process for weav 146 ing the same into fabrics.
Although it has been alleged that the yam is obtained at an intermediate stage of an integrated process of manufacture of fabrics, it appears to be not so.
After the yarn is produced it is sized and, thereafter, subjected to a process of weaving the same into fabrics.
Be that as it may, as we have held that the commodity which is obtained at an intermediate stage of an integrated process of manufacture of another commodity, is liable to the payment of excise duty, the yarn that is produced by the appellants is also liable to payment of excise duty.
In our view, the High Court by the impugned judgment has rightly held that the appellants are not liable to pay any excise duty on the yarn after it is sized for the purpose of weaving the same into fabrics.
No distinction can be made between unsized yarn and sized yarn, for the unsized yarn when converted into sized yarn does not lose its character as yarn.
" The petitioner herein on the other hand approached the Gujarat High Court and the Gujarat High Court by its judgment dated 30th July, 1981 had, before the issuance of the impugned circular dated 24th May, 1982, taken the view that no duty can be levied on the weight of sizing material contained in yarn, falling under Tariff Item No. 18 111 or 18 E and directed that the duty levied should be refunded because the duty has been levied not on the basis of yam at the spindle stage, but on the weight of the sized yarn.
After the decision of the Gujarat High Court the Central Government had amended Rules 9 and 49 of the Rules and Section 51 of the Finance Act, 1982, had made them effective retrospectively.
The present writ petition filled in this Court had inter alia pleaded that the retrospective amendment of Rules 9 and 49 of the Rules as well as Section 51 of the Finance Act, 1982 be declared as ultra vires of the Constitution.
This Court upheld the validity of the Section as well as the retrospective applicability of the Rules but took the view that this would be subjected to the provisions of Sections 11A and 11B of the Act and at the same time declared that the appellants were not liable to pay excise duty on the yarn after it is sized for a purpose of weaving the same into fabrics.
It will be noticed that under items 18.1, 18.III and 18E the measure is "per kilogram".
At this stage items 18.1, 18.111 and 18E of the Tariff may be noticed 147 "18.
I. Man made fibres, other than mineral fibres : (i) Non cellulosic Eighty five rupees per kilogram (ii) Cellulosic Ten rupees per kilogram '18.III.
Cellulosic spun yarn: Yam, in which man made fibre of cellulosic origin predomi nates in weight and, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power (i) not containing, any manmade fibres of non cellulosic origin.
six paise per count per kilogram (ii) containing man made fibres of non cellulosic origin.
Eighteen Rupees per kilogram.
Explanation 1: "Count" means the size of grey yarn (excluding any sizing material) expressed in English Count.
Eighteen Rupees per kilogram "18E.
Non cellulosic Spun Yam: Spun (discontinuous) yarn, in which man made fibres of noncellulosic origin, other than acrylic fibre, predominate in weight and, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power.
Twenty four rupees per kilogram.
148 Explanation : Explanation III under sub item III of item No. 18 shall, so far as may be, apply in relation to this item as it applies in relation to that item.
" It will be noticed from the aforesaid items that the measure for imposition of excise duty is by weight "per kilogram" in all the three items, namely 18.1, 18.111 and 18E. Therefore, the aforesaid decision in J.K. Couon Mills will be applicable to all types of cases under Items 18.1, 18.111 and 18E. After the decision of the Gujarat High Court, instead of granting the refund, the Superintendent of Central Excise, Range IV, Division V, Ahmedabad, issued impugned notices, collectively annexed as Annexures 'B ' and 'C ' to the present writ petition in pursuance of the directives dated 24th May, 1982 which are subject matter of challenge in the present writ petition.
On behalf of the respondents Mr. Ganguly learned counsel submitted that this Hon 'ble Court ought not to entertain the present writ petition under Article 32 of the Constitution.
He, however, could not dispute that the matter is directly covered by the decision of this Court in the aforesaid case of J.K Cotton Mills.
These petitions were admitted to hearing in view of the pendency of the aforesaid appeal in the case of J.K Cotton Mills and in view of the decision of the Delhi High Court which was appealed against in the aforesaid case of J.K Couon Mills.
Practically nine years have gone by now and the impugned show cause notices have been issued by virtue of the same directives which were subject matter of the aforesaid case of J.K.cotton Mills.
In view of this peculiar fact it would not be in the interest of justice if the parties are directed to contest the individual show cause notices issued by the respondents in view of the aforesaid directives.
In order to avoid multiplicity of proceedings involving time and expense, we quash the impugned notices in all the cases.
The result is that all the aforesaid writ petitions are accepted and the impugned show cause notices are quashed.
There will be no order as to costs.
G.N. Petitions allowed.

Output:
The petitioners challenged before the High Court the levy of excise duty on the weight of the yarn sized for the purpose of weaving them into fabrics.
The High Court held that no duty could be levied on the weight of the sizing material contained in yarn, and directed that the duty should be refunded since it has been levied not on the basis of yarn at the spindle stage, but on the weight of the sized yarn.
After the said judgment, the Central Government by Notification dated 20.2.1982 amended Rules 9 and 49 of the and Section 51 of the Finance Act, 1982 with retrospective effect.
In accordance with the said Notification, Central Excise Department issued show cause notices to the petitioners.
The constitutional validity of these amendments are challenged by the petitioners in the present Writ Petitions filed before this Court.
On behalf of the petitioners, it was contended that their cases were covered by the decision of this Court in J.K. Cotton Spinning and Weaving Mills Ltd. & Anr.
vs Union of India and Ors., ; and that excise duty could be levied on the weight of the unsized yarn and not on the basis of the weight of the sized yarn.
Allowing the petitions, this Court HELD: 1.1.
The Vires of Rules 9 and 49 of the Central Excise Rules, 1944 as well as section 51 of the Finance Act, 1982 and the retrospective 143 application of the same has already been upheld by this Court.
[145E] 1.2.
The sized yam which is actually put into the integrated process will not again be subjected to payment of excise duty, for the unsized yam which is sized for the purpose, does not change the nature of commodity as yarn.
Thus excise duty cannot be levied on the weight of the yarn after the yarn is sized for the purpose of weaving the same into fabrics.
[145G] 13.
Practically nine years have gone by since the show cause notices were issued by virtue of the same directives which were subject matter of J.K Cotton Mills case.
In view of this peculiar fact it would not be in the interest of justice if the petitioners are directed to contest the individual show cause notices issued by the respondents.
In order to avoid multiplicity of proceedings involving time and expense, the show cause notices in all these cases are quashed.
[148F G] J.K Cotton Spinning and Weaving Mills Ltd & Anr.
vs Union of India & Ors.
, ; , applied.


Input:
minal Appeal No. 101 of 1972.
Appeal by special leave from the Judgment and order dated the 25th February, 1972 of the Rajasthan High Court at Jodhpur in section B. Criminal Revision No. 52 of 1972.
B. D. Sharma, section K. Bagga, section Bagga, Rani Arora and Yash Bagga, for the appellant.
section M. Jain, for respondent No. 1.
section N. Prasad, for respondent No. 2.
The Judgment of the Court was delivered by ALAGIRISWAMI, J.
The appellant filed a complaint against the 2nd respondent before the Add.
Munsiff Magistrate of Jodhpur City under sections 323 and 504 I.P.C.
The 2nd respondent was the Post Master General, Rajasthan and the appellant a clerk in the Head Post Office 560 at Jodhpur.
He was also the, Divisional Secretary of National Union of Postal Employees.
The relevant portion of the complaint is as follows "4, That the accused came on tour to Jodhpur on 25 10 1971.
He arrived at the Head Post Office Jodhpur, in connection with the inspection at 5.45 P.M.
The complainant reached to submit his representation to the accused for cancelling his transfer, when.
the accused just sat in his jeep and the complainant started narrating his story '.
That the accused being enraged by this complaint, kicked him in his abdomen and abused him by saying "Sale, Goonda, Badmash, on one hand you are complaining and on the other hand you are requesting for the cancellation of transfer.
That the complainant became very much enraged over this incident but he suppressed his anger because of being responsible citizen and to avoid any further disturbance.
That after kicking and abusing the complainant the accused ran away in his jeep.
" The 2nd respondent filed an application under section 197 of the Code of Criminal Procedure praying that the court should not take cognizance of the offence without the sanction of the Government as the acts alleged, if at all done by the accused, were done while discharging his duties as a public servant.
The Munsiff Magistrate dismissed the application but Justice Mehta of the Rajasthan High Court allowed the revision petition filed by the 2nd respondent and set aside the order of the lower court holding that the 2nd respondent could not be prosecuted unless prior sanction of the Central Government had been obtained.
This appeal is against that order.
The law regarding the circumstances under which sanction under s.197 of the Code of Criminal Procedure is necessary is by now well settled as result of the decisions from Hori Ram Singh 's(1) case to the latest decision of this Court in Bhagwan Prasad Srivastava vs N. P. Misra.
(2) While the law is well settled the difficulty really arises in applying the law to the facts of any particular case.
The intention behind the section is to prevent public servants from being unnecessarily harassed.
The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention.
Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned.
Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty.
The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in the execution of duty.
The test appears to be not that the offence is capable of being committed only, by a (2) [1971] (1) section C. R. 317.
(1) 561 public servant and not anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty.
The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty,.
Nor need the act constituting the ,offence be so inseparably connected with the official duty as to form part and parcel of the same transaction.
What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty.
It does not apply to acts done purely in a private capacity by a public servant.
Expressions such as the "capacity in which the act is performed", "Cloak of office" and "professed exercise of office" may not always be appropriate to describe or delimit the scope of the section.
An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty.
In Hori Ram Singh 's case (supra) Sulaiman, J. observed : "The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty.
Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same trans action.
" In the same case Varadachariar, J. observed "there must be something in the nature of the act complained of that attaches it to the official character of the person doing it." In affirming this view, the Judicial Committee of the Privy Council observed in case: "A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty.
The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office." In Matajog Dobey vs H. C. Bhari(2) the Court was of the view that the test laid down that it must be established that the act complained of was an official act unduly narrowed down the scope of the protection afforded by section 197.
After referring to the earlier cases the court summed up the results as follows : "There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.
" Applying this test it is difficult to say that the acts complained of i.e. of kicking the complainant and of abusing him, could be said to (1) 1948 L R. 75 1.
A. 41.
(2) [1955](2) section C. R. 925.
562 have been done in the, course of performance of the 2nd respondent 's duty.
At this stage all that we are concerned with is whether on the facts alleged in the complaint it could be said that what the 2nd respondent is alleged to have done could be said ' to be in purported exercise of his duty.
Very clearly it is not.
We must make it clear, however, that we express no opinion as to the truth or falsity of the allegations.
We must also make it clear that this is not the end of the matter.
As was pointed out in Sarjoo Prasad vs The King Emperor(1), referring to the observations of Sulaiman, J. in Hori Ram Singh 's case (supra) the mere fact, that the accused proposes to raise a defence of the act having purported to be done in.
execution of duty would not in itself be sufficient to justify the case being thrown out for want of sanction.
At this stage we have only to see whether the acts alleged against the 2nd respondent can be said to be in purported execution of his duty.
But facts subsequently coming to light during the course of the judicial inquiry or during the course of the prosecution evidence at the trial may establish the necessity for sanction.
Whether sanction is necessary or not may have for depend from stage to stage.
The necessity may reveal, itself in the court of the progress of the case (see observations in Matajog Dobey vs H. C. Bhari (supra) In Bhagwan Prasad Srivastaval vs N. P: Misra (supra), also it was pointed out that it would be, open.
to the appellant (.the 2nd respondent in this case) to place the material on record during the course of the trail for showing what his duty was and also that the acts complained of were so interrelated with, his official duty, so as to attract the protection afforded by s.197, Cr.
This appeal is, therefore allowed and the order of the learned Judge of the High Court is set aside.
S.B.W. Appeal allowed.

Output:
The appellant filed a complaint against respondent No. 2, his superior officer, in the Postal Department, under sections 323 and 502 of I.P.C. alleging that when the appellant went with a certain complaint to the second respondent, the second respondent kicked him,in his abdomen and abused him by saying "Sale, gunde, badmash.
" The second respondent filed an application under section 197 of the Cr.
P.C. praying that the Court should not take cognizance of the offence without the sanction of the Government, as required by Section 197 of the Cr.
P.C. it was further contended that the alleged acts, if at ail done by the accused were done while discharging his duties as a public servant.
The trial Magistrate dismissed the application.
The 'High Court allowed the revision application of second respondent.
Allowing the appeal, HELD : (1) At this stage, the Court is concerned only with one point, whether on facts alleged in the complaint, it could be said that the acts were done in purported exercise of his duties.
Applying the test laid down in the decisions of the Federal Court and Supreme Court to acts complained of, viz., licking the complainant and abusing, cannot be said to have been done in the course of the performance of the duty by the second respondent.
[561H] (2) The facts subsequently coming to light during the course of the judicial enquiry or during the course of the prosecution evidence at the trial may establish the necessity for sanction.
It may be possible for the second respondent to,place the material on record during the course of the trial for showing what his duty was and also that the acts complained of were so inter related with his official duty, so as to attract the protection afforded by sec.
197 of the Cr.
Whether sanction is necessary or not may have to depend from stage to stage.
[562D] Horiram Singh, , Bhagwan Prasad Srivastava vs N. P. Mshra, [1971] 1 S.C.R. 317, Matajog Dobey vs H. C. Bhari ; and Sarjoo Prasad vs The King Emperor.
relied upon.


Input:
Civil Appeal No. 2354 of 1968 From the judgment and order dated the 7th March, 1968 of the Madhya Pradesh High Court in First Appeal No. 24 of 1969.
C. P. Lal for the appellant.
section T. Desai and D. N. Misra for the respondent.
The Judgment of the Court was delivered by MATHEW, J.
One Deojibhai executed a sale deed on 30 12 1950 in respect of the property in question in favour of the appellant for a sum of Rs. 12,000/ .
No part of consideration was paid at the time of the execution of the sale deed.
The appellant promised to pay the amount by 21 5 1951 and covenanted that in case of non payment, the amount due would be charge upon the property sold.
After the execution of the sale deed, the appellant was put into possession of the 964 property and he paid Rs. 3,100/ in three instalments.
Deojibhai died in 1955 leaving his widow, the respondent and a son who died subsequently leaving his widow Manibai.
Manibai filed a suit in 1956 in the Bombay City Civil Court against Deokabai, the respondent, claiming a share in the property left by her father in law, Deojibhai.
This suit was compromised and Deokabai was appointed receiver of the estate of Deojibhai with a direction by the Court to realise his assets and to pay a certain amount to Manibai.
Deokabai, the respondent, filed the suit from which the appeal arises, on the basis that the appellant defaulted to pay the full purchase money of the property and that she was entitled to the same with interest.
The appellant contended that the charge could not be enforced against the property as it formed part of his occupancy holding and that, besides the sum of Rs. 3,100/ he had made other payments totalling Rs. 9,500/ .
The trial court found that no decree could be passed for enforcing the charge against the property as it was held in occupancy right by the appellant, but the court gave a personal decree against the appellant for Rs. 21,375/ .
The appellant appealed against the decree to the High Court.
The Court found that the respondent was entitled to enforce the charge on the property and granted a decree on that basis, but negatived the claim of the respondent for a personal decree against the appellant on the ground of limitation.
In other respects, the decree of the trial court was confirmed.
It is against this decree that the present appeal, by certificate, has been filed.
Two points were taken on behalf of the appellant.
One was that the Court was not competent to pass a decree creating a charge on the property in view of the fact that the property was held by the appellant as occupancy tenant.
This contention was negatived by the High Court on the ground that the prohibition to pass a decree for sale or for closure of any right of an occupancy tenant in his holding was not in existence in 1952 when the suit was filed.
We think the High Court was right in its conclusion as section 12 of the Central Provinces Tenancy Act, 1920, which contained the prohibition, had been repealed before the decree was passed.
The second point raised by the appellant was that the respondent did not appeal from the decree of the trial court negativing her claim in the suit for a charge on the property.
It was contended that the High Court was wrong in granting a decree for enforcement of the charge as the decree of the trial court became final so far as the respondent was concerned as she did not file any appeal therefrom.
We are unable to accept this contention.
Under Order 41, Rule 33 of the Civil Procedure Code, the High Court was competent to pass a decree for the enforcement of the charge in favour of the respondent notwithstanding the fact that the respondent did not file any appeal from the decree.
Order 41, Rule 33 provides: "The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only 965 of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection: Provided that the Appellate Court shall not make any order under sec.
35 A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order." In Radhika Mohan vs Sudhir Chandra(1), the facts were these: Under an annuity bond, the plaintiff there was granted a certain allowance per month.
In a will executed by the executor of the annuity bond.
It was provided that the annuity was to be a charge on certain properties.
As the annuity allowance fell in arrears, the plaintiff brought a suit to enforce it praying for a charge.
The trial court decreed the suit but did not grant a charge.
The lower appellate court exonerated the defendants from personal liability but held that there should be a charge on the property.
In second appeal by the defendants it was contended by them that the lower appellate court could not create a charge as, in the lower appellate court the plaintiff had failed to take objection to that part of the trial court 's decree.
The High Court held that under 0.41, r.33, Civil Procedure Code, the lower appellate court was competent to vary the decree by providing for enforcement of the charge and that the decree passed by it was right.
In Giani Ram & others vs Ramji Lal and others(2) the Court said that in 0.41, r. 33, the expression "which ought to have been passed" means "what ought in law to have been passed" and if an appellate court is of the view that any decree which ought in law to have been passed was in fact not passed by the court below, it may pass or make such further or other decree or order as the justice of the case may require.
Therefore, we hold that even if the respondent did not file any appeal from the decree of the trial court, that was no bar to the High Court passing a decree in favour of the respondent for the enforcement of the charge.
There is no substance in the contention that all the payments made by the appellant have not been given credit to by the respondent in view of the concurrent findings of the courts.
We dismiss the appeal with costs.
P.B.R. Appeal dismissed.

Output:
The appellant, who bought property from the respondent 's husband, covenanted that in case of non payment of the consideration, the amount due would be a charge upon the property.
The respondent, on the death of her husband, filed a suit on the ground that the appellant defaulted to pay the full purchase money of the property.
The trial court held that no decree could be passed for enforcing the charge against the property as it was held in occupancy right by the appellant, but gave a personal decree against the appellant for a certain sum.
On the appellant 's appeal the High Court held that the respondent was entitled to enforce the charge on the property but negatived the respondent 's claim for a personal decree.
On appeal to this Court, it was contended (1) that the Court was not competent to pass a decree creating a charge on the property since it was held by the appellant as an occupancy tenant and (2) that as the respondent did not appeal from the decree of the trial court negativing her claim in the suit for a charge on the property, the High Court was wrong in granting a decree for enforcement of the charge.
Dismissing the appeal, ^ HELD: (1) The High Court was right in holding that the prohibition to pass a decree for sale or for closure of any right of an occupancy tenant in his holding was not in existence in 1952 when the suit was filed, because, section 12 of the Central Provinces Tenancy Act, 1920, which contained the prohibition, had been repealed before the decree was passed.
[964 E F] (2)Even if the respondent did not file any appeal from the decree of the trial court, that was no bar to the High Court passing a decree in favour of the respondent for the enforcement of the charge.
Under Order XLI, r. 33 of the Code of Civil Procedure, the High Court was competent to pass a decree for the enforcement of the charge in favour of the respondent notwithstanding the fact that the respondent did not file any appeal from the decree.
[964 G, 965 E] Radhika Mohan vs Sudhir Chandra, A.I.R. 1937 Calcutta 10 and Giani Ram & Others, vs Ramji Lal and Others, ; , referred to.