Patna High Court
The State Of Bihar And Anr. vs Charanjitlal Chadha And Anr. on 8 December, 1958
Equivalent citations: AIR1960PAT139, AIR 1960 PATNA 139
JUDGMENT R.K. Choudhary, J.
1. These two appeals arise out of the same judgment. F. A. 126 of 1953 is by defendant No. 2, Raja Bahadur Kamakshya Narain Singh of Ramgarh, and F. A. 92 of 1953 is by defendant No. 1, the State of Bihar. The short facts leading to the institution of the suit out of which these appeals arise are these :
2. By an agreement dated 18-9-1941, made between defendant No. 2 and defendant No. 1, the administration of the forests of the Ramgarh Raj remained in the hands of the Raj subject to the control of the Government as set forth in the working plan sanctioned by Government, the Provincial Government having the right to selection and appointment of the Forest Officer whose services, however, after the appointment, were placed under the proprietor of the Raj, defendant No. 2.
The above agreement was entered into under the provisions of the Indian Forest Act (XVI of 1927). On 25-5-1952, the plaintiff Charanjit Lal Chadha was appointed Forest Officer by defendant No. 1 In respect of the forests of the Ramgarh Raj on a monthly salary of Rs. 400 in addition to travelling allowance and his services were terminable on three months' previous notice. At the time he entered into the service, he had, under the orders of the Government, to make a deposit of Rs. 800 with defendant No. 2 by way of security.
On 19-12-1947, the taking over of the forest was denotified under the notification promulgated by the Government, being notification No. 12221- VIF-293/47-R dated 19-12-1947, and there was a further notification in that regard being notification No. 12222-VIF-273-R dated 30-12-1947. On 28-5-1948, according to the plaintiff, his services were terminated by a letter written by the Conservator of Forests on that date offering Rs. 1200 as compensation in lieu of three months' salary.
It appears that the plaintiff accepted the said amount but, according to him, that represented the salary for January to March, 1948, only. The salary of the plaintiff from 1-11-1947, to 31-12-1947, and from the 1-4-1948, to 29-5-1948, was not paid. He also made a claim for his travelling allowance and for the refund of the security money deposited with defendant No, 2.
Nothing having been paid to him towards the above items, the plaintiff instituted a suit for recovery of Rs. 2700 being the amount of his salary for the above period Rs. 1042/14/- as travelling allowance, Rs. 800, the security money and Rs. 575 by way of interest, the total being a sum of Rs. 5117/14/-. The plaintiff wanted a decree for the above amount to be passed either against defendant No. 1 or defendant No. 2 whoever may be found to be liable.
3. The suit was contested by both the defendants, each throwing the, burden over the other. The sum and substance of their defence, however, was that the plaintiff was not entitled to recover any amount from either of them.
4. The learned Subordinate Judge held (1) that defendant No. 2 was liable for the salary of the plaintiff from 1-11-47 to 31-12-47 which would be payable by defendant No. 1 from the funds of defendant No. 2 deposited with defendant No. 1, (2) that defendant No. 1 was liable for the salary of the plaintiff from 1-4-48 to 22-5-48 as after the taking over of the forests was denotified the plaintiff ceased to be in the service, of defendant No. 2, (3) that travelling allowance amounting to Rs 1042/14/- will be payable to the plaintiff by defendant No. 2 which he would be entitled to recover from defendant No. 1 from the funds of defendant No. 2 deposited with defendant No. 1 and (4) that the security money deposited with defendant No. 2 amounted only to Rs. 750 which must be paid by defendant No. 2 to the plaintiff as it was deposited with him.
The claim for interest was rejected. The suit was accordingly decreed for recovery of amounts covered by the above four items. Both the defendants have, therefore, filed the two different appeals.
5. I will first take up the appeal filed by defendant No. 2, which is F. A. 126 of 1953. The appellant is the proprietor of the Ramgarh Raj in which there were a number of forests. The India Forest Act (XVI of 1927) was passed to consolidate the law relating to forest, the transit of forest produce and the duty leviable on timber and other forest-produce. Section 38 of that Act provides for protection of forests at the request of owners.
Sub-section (1) of that section states that the owner of any land or, if there be more than one owner thereof, the owners of shares therein amounting in the aggregate to at least two-thirds thereof may, with a view to the formation or conservation of forests thereon, represent in writing to the Collector their desire (a) that such land be managed on their behalf by the Forest Officer as a reserved or a protected forest on such terms as may be mutually agreed upon; or (b) that all or any of the provisions of this Act be applied to such land.
It is admitted by the appellant in bis written statement as has already been stated above in the statement of facts that there was an agreement between the appellant and the Government on 18-9-1941, in regard to the administration of the forests of the Raj and the selection and appointment of me Forest Officer by the Government. The contention of the appellant is that the plaintiff was appointed by the Government, defendant No. 1, and the appellant was not a party to the agreement under which the appointment of the plaintiff was made.
It is also submitted on his behalf that the plaintiff himself was not a party to the agreement which was entered into between him and the Government, that is to say, there was no privity of contract between the plaintiff and defendant No. 2 in either of the two agreements so as to entitle the plaintiff to claim his salary from him. It has been arguod by Mr. Balbhadra Prasad Singh appearing for the appellant that in the absence of any privity of contract between the plaintiff and the appellant, the decree passed by the court below against the appellant is wrong in law.
The above contention gains support from a decision of the Privy Council in Jamna Das v. Pandit Ram Autar Pande, 39 Ind App 7. In that case an action was brought by a mortgagee to enforce against a purchaser of the mortgaged property an undertaking he entered into with his vendor. Their Lordships held that the mortgagee had no right to avail himself of that as he was no party to the sale. Following the above Privy Council decision a Bench of this Court in Achuta Ram v. Jainandan Tewary, ILR 5 Pat 468: (AIR 1926 Pat 474), took the same view.
In that case a mortgagor executed a mortgage In favour of the plaintiff and subsequently sold the property to a third party who, in the recitals of the sale deed, agreed to pay off the mortgage, but the plaintiff was not a party to that contract. It was held that the plaintiff (mortgagee) could not avail himself of the stipulation made in the contract between the purchaser and the mortgagor.
A Full Bench of the Madras High Court in Subbu Chetti v. Arunachalam Chettiar, AIR 1930 Mad 382, has also taken the same view and has held that where all that appears is that a person transfers property to another and stipulates for the payment of money by purchaser to a third person a suit to enforce that stipulation by the third party will not lie. Counsel for the plaintiff has not been able to challenge the correctness of the above proposition of law.
It must, therefore, be held that there being no privity of contract between the appellant and the plaintiff, the latter was not entitled to get a decree against the appellant for his salary from 1-11-47 to 31-12-47 on the basis of agreements referred to above.
6. Mr. Ghosh appearing for the plaintiff-respondent, however, has contended that though there was no written agreement to which the appellant in this appeal was a party, the facts and circumstances of this case indicated that there must have been an oral agreement between the plaintiff and the appellant and, as such he must be held to be liable for the salary of the plaintiff for the above period. There is nothing, however, on the record or in the evidence adduced by the parties for coming to a finding that there was an oral agreement between them as contended by Mr. Ghosh. It is not, therefore, possible to accept this argument.
7. It has then been contended that the record of the case shows that the appellant accepted the service of the plaintiff and, therefore, was bound to pay his salary. In support of this contention reliance has been placed on the evidence of witness No. 1 for the appellant who stated as follows :
"The jungle remained with the owner, but it was managed by the Government under the Indian Forest Act. The expenditure and income for and from the jungle was of the Raj. The Provincial Government appointed the plaintiff. The plaintiff appointed his staff in consultation with Raja Bahadur. Raja Bahadur used to keep the expenses of management, the salary and allowance of the plaintiff. The Government scrutinised the Budget and sanctioned it though Raja Bahadur supplied the money. The Government did not pay anything so long as he was in service".
In paragraph 2 of the written statement the appellant has admitted that when appointed the services of the Forest Officer were placed under the proprietor of the Raj. It is, therefore, clear that the plaintiff did work for the appellant who accepted his service. The question is whether on that ground the plaintiff would be entitled to claim his salary from defendant No. 2. Section 70 of the Indian Contract Act lays down that where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.
It has accordingly been argued on behalf of the plaintiff-respondent that the appellant was bound to compensate the plaintiff for the services that he lawfully rendered to him. In reply to this argument, Counsel for the appellant has contended that the plaintiff based his claim in the plaint on an agreement of service and not on the ground that the appellant had accepted his service.
8. Counsel for the appellant has contended that in view of the fact that the plaintiff based his claim on agreement of service referred to above, he was not entitled to payment on a quantum meruit. It has, therefore, been urged that the acceptance of service of the plaintiff by the appellant is immaterial in the suit and no decree can be passed in favour of the plaintiff against the appellant on that ground. The above contention appears to have found favour with the various courts in India and outside India.
In Steven v. Bromley and Son, (1919) 2 KB 722, it was held that where an agent works on the terms that he shall receive a commission if successful, that excludes a claim on a quantum meruit which does not result in success. But where work is done outside the contract, and the benefit of the work is taken, a contract may be implied to pay for the work so done at the current rate of remuneration and the terms of the express contract may remain binding in so far as they are not inconsistent with the implied contract.
In Jones v. Lowe, 1945 KB 73, it was held that having failed on the contract, the plaintiff is not entitled to recover on a quantum meruit. In Roopji and Sons v. Dyer Meaken and Co. Ltd., AIR 1930 All 545, after consideration of the various authorities a Bench of the Allahabad High Court held that the plaintiff cannot claim on quantum meruit if he has chosen to tie himself down with the express terms of the agreement, for a liability by implication is excluded by the contract being express.
The same view was taken by the Calcutta High Court in Kishan Prosad Singha v. Purnendu Narain Singha, 16 Cal WN 753, where it was held that the plaintiff not having made, out a case of claim on quantum meruit no relief could be granted to him on that basis. The above view has also been taken by the Madras, Lahore and Nagpur High Courts in Sathiavel Pillai v. Sivasami Pillai, AIR 1933 Mad 344, Tej Raj v. Ram Lal, AIR 1938 Lah 71 and Ratan Lal Hiralall v. Chandradutt Ramprasad Gupta, AIR 1951 Nag 431, respectively.
In the Madras case the law on the subject was stated to be that where the plaintiff sues for wages for work done on the basis of an alleged contract but the contract is not Proved, the court has no jurisdiction to grant relief on the principle of quantum meruit unless it has been asked for alternatively. In the Lahore case it was held that where a person brings a suit for compensation relying on an express agreement to that effect and does not ask for any relief under Section 70, Contract Act, the court cannot grant a decree on the principle laid down in that section.
In the Nagpur case a suit was brought by a legal practitioner against his client for recovery of his fees based on an express agreement. It was held that he was not entitled to any relief on the basis of quantum meruit if he fails to make out an express agreement. There thus seems to be an established principle of law that a relief on quantum meruit cannot be granted if the claim has not been based on that ground, and as such the plaintiff could not get any decree against the appellant with respect to his remuneration for the months of November and December, 1947 on the basis of quantum meruit.
9. Mr. Ghosh appearing for the plaintiff-respondent has then contended that in this case the decree passed against the appellant for the remuneration of the plaintiff for the above two months is justified on the admission of the claim made by the appellant in his written statement. In paragraph 8 of the written statement the appellant stated that for the reasons given therein the plaintiff is not entitled to claim any pay from him after December, 1947, as Forest Officer of the Ramgarh Raj Reserved Forests and in paragraph 10 he stated that be admits that the plaintiff is only entitled to receive a sum of Rs. 800 as arrears of pay for the months of November and December, 1947, but as the State Government of Bihar, that is, defendant No. 1, is in illegal and wrongful possession of the forests of the Ramgarh Raj, the aforesaid sum of Rs. 800 is recoverable from defendant No. 1 and not from him.
Reading the statements in the above two paragraphs of the written statement there is no room for doubt that the appellant accepted his liability for a sum of Rs. 800 as being the remuneration of the plaintiff for the months of November and December, 1947. His averment in the written statement that as defendant No. 1 was in wrongful possession of the forests, the above amount was recoverable from that defendant only suggests that the plaintiff may enforce the liability as against the appellant by recovering the money from defendant No. 1 who may have been in possession of the funds of the appellant.
I am not, however, concerned at the stage as to how the above amount is to be recovered from the estate of the appellant. The real question is about his liability for the sum of Rs, 800 which he has admitted in the written statement as stated above. Counsel for the appellant has conceded that if the statements referred to above amounted to an admission of claim the court was bound to pass a decree for the admitted amount. In that view of the matter, the decree of the learned Subordinate Judge with respect to the above item passed against the appellant has to be maintained.
There is, however, a direction in the decree that the above amount will be recoverable from defendant No. 1 out of the funds of defendant No. 2 deposited with defendant No. 1. The appellant has himself stated that the above amount should be recovered from defendant No. 1 as being in possession of the forests.
Defendant No. 1 in its written statement has also admitted that in case defendant No. 2 admitted liability to pay but did not pay the just dues, if any, of the plaintiff, the Government would pay the same to the plaintiff on behalf of defendant No. 2 from the latter's account. In view of this admission, the decree passed by the learned Subordinate Judge with respect to the above item is perfectly justified and must be maintained.
10. The next item of the decree passed by the learned Subordinate Judge as against the appellant is with regard to the security money. It has been found by the learned Subordinate Judge that the sum of Rs. 750 was deposited by the plaintiff with the appellant as security. Counsel for the appellant has not challenged this finding and had to concede that in view of the fact that the appellant received the money from the plaintiff by way of security, there was an implied contract for the refund of the same. In that view of the matter, the decree passed for the above amount against the appellant has also to be maintained.
11. The last item of claim as against the appellant is a sum of Rs. 1042/14/- representing the travelling allowance of the plaintiff. The travelling allowance claimed is for the neriod from August, 1947, to December, 1947. The learned Subordinate Judge has decreed the above claim against the appellant. It is contended on his behalf that there is no evidence in support of the fact that the plaintiff was actually entitled to the travelling allowance.
The original travelling allowance bills have not been produced in court and the decree has been passed on the basis of private copies of those bills maintained by the plaintiff. It has been contended on behalf of the plaintiff respondent that the original bills were with the appellant and, in spite of their having been called for from him, they were not produced. In support of this contention, reliance has been placed on exhibit 4(M), which is a receipt granted by Dasharath Lal, D. W. 1, stating that he received "T.A. of F. O. for August to December. 1947, only".
It has been contended that the original bills, therefore, must be with the appellant. D. W. 1, however, in his evidence, has stated that he received T. A. bills in December or first week of January, but he returned the same to the plaintiff on the Chief Manager objecting to them. If this evidence is to be believed, then the original bills could not be with the appellant. I have, however, no reason to disbelieve the evidence of this witness as it also gains support from certain documents.
It may be stated here that no date is to be found in exhibit 4(M) so as to find out as to when these bills were received by D. W. 1. But they must be presumed to have been submitted by the plaintiff to D.W. 1 soon after December, 1947, because the claim was for the period from August to December, 1947, only. From a letter, exhibit 3(p), dated the 29th of May, 1948, it appears that the plaintiff submitted with that letter his T.A. bills for the above period to the Conservator of Forests.
Exhibit 3(f) is a letter dated the 1st of June, 1948, from the Conservator of Forests to the plaintiff in which it is stated that he received his arrears of T. A, bills which were under examination. Exhibit 3(q) is another letter dated the 23rd of June, 1948, from the Conservator of Forests to the plaintiff in which it is stated that the T. A. bills were not drawn in the prescribed forms and they were returned to the plaintiff along with that letter for resubmission after rectifying the defects. Exhibit 3(R) shows that he resubmilted his bills to the Conservator of Forests in the prescribed forms after making necessary corrections on the 12th of July 1948, and as it appears from exhibits 3(y) dated 26-10-1948, 3(S) dated 27-10-1949 and 3(N) dated 20-1-1950, the correctness of the above bills had not been ascertained and scrutinised till January, 1950.
There is nothing to show that those revised bills were ever sent to the appellant either by the plaintiff or by defendant No. 1. These bills, therefore, could not have been with the appellant so as to be produced by him. They may have been either with the plaintiff or with defendant No. 1, who, as admitted by Mr. Ghosh, was never called upon to produce them. The original T. A. bills, thus, not having been produced, secondary evidence thereof in the shape of private copies maintained by the plaintiff could not be admissible in evidence.
There is thus no material on the record from which it can be found as to what amount of travelling allowance was to be payable to the plaintiff. Apart from that, the correctness of the travelling allowance bills was itself challenged in a letter, exhibit 3(q), dated the 23rd of June, 1948, in which the Conservator of Forests pointed out the various inaccuracies, for example, on 21-8-1947 he charged 30 miles against 25 miles mentioned in the diary, on 27-9-1947 he charged 69 miles against 62 miles mentioned in the diary, etc. etc. Exhibit 30), another letter dated the 24th of March, 1949, from the Conservator of Forest to the plaintiff, shows that the plaintiff always stayed at Hazaribagh while his headquarters was always at Padma and the authority for that was not clear. It also shows that the halts of the plaintiff at Hazaribagh exceeded ten days and he was not entitled under the rules to T. A. for the same. It was further pointed out in that letter that justification for such frequent return journeys has not been explained.
The plaintiff, by his letter, exhibit 3(k), dated 31-3-1949, gave an explanation for his halting at Hazaribagh that as there was an extensive campaign of destruction of the Reserved Forests by the villagers, it was necessary for him to be at Hazaribagh so as to be in easy contact with Government Officers. No evidence has been adduced to prove the above necessity, nor has any evidence been given to justify frequent journeys or to prove in fact that the plaintiff actually visited places for which he charged travelling allowance.
In the absence of any evidence on the point it is not possible to maintain the decree of the court below with regard to this item of the claim. The suit of the plaintiff for his travelling allowance has, therefore, to be dismissed.
12. No other point has been raised in this appeal. The net result, therefore, is that the decree passed by the learned Subordinate Judge against the appellant for a sum of Rs. 800 being the arrears of salary for the months of November and December, 1947, and for a sum of Rs. 750 being the amount of security money has to be maintained, but the decree passed by him against the appellant for a sum of Rs. 1042/14/- being the travelling allowance of the plaintiff has to be set aside.
13. Now, I will come to the other appeal, namely, F. A. 92 of 1953 filed on behalf of the State of Bihar, defendant No. 1. The decree passed against the appellant in this case is for a sum of Rs. 683/14/- being the arrears of salary of the plaintiff from 1-4-1948 to 22-5-1948. It may be noted here that though service of the plaintiff was terminated on the 28th of May, 1948, by letter, exhibit 3(e), the claim made by him and the decree passed by the learned Subordinate Judge is only up to the 22nd of May, 1948.
The contention of the learned Counsel for the appellant is that the contract in this case infringed1 the provisions of Section 175(3) of the Government of India Act, 1935, and, therefore, it was void, and the appellant could not be made liable for it. In? support of this contention reliance has been placed on a Bench decision of this Court in the Dominion of India v. Rai "Bahadur Seth Bhikhraj Jaipuria, 1957 Pat LR 198: ((S)AIR 1957 Pat 586) in which it has been held that the provisions of Section 175 (3) of the Government of India Act, or for the matter of that, the provisions of Article 299(1) of the Constitution, are mandatory and must be strictly complied with in order to constitute a valid contract which could be enforced against the Government. The appellant, however, did not take this defence in its pleadings nor was the point taken at the trial, and it is for the first time in. this Court that this question has been raised.
In the case of 1957 Pat L R 198: ((S) AIR 1957 Pat 586), referred to above it has been held that the question whether or not the provisions of Section 175(3) have been complied with is purely a question of fact and, therefore, has to be pleaded. In coming to that decision, reliance was placed on a Supreme Court decision in Kalyanpur Lime Works Ltd. v. State of Bihar, 1954 SCR 958 : (AIR 1954 SC 165) in which the Supreme Court overruled the objection that the contract was void under Section 30 of the Government of India Act, 1915, because the plea of Section 30 was not raised in the pleadings. That being the position, the appellant cannot be allowed to raise this question here.
14. It has then been contended on behalf of the appellant that in this case no decree should have been passed against it for the period from 1-4-1948 to 22-5-1948, inasmuch as the appellant offered to pay to the plaintiff a sum of Rs. 1200 in full discharge of his claim which he accepted and, therefore, he had no right to make a further claim against the appellant.
It appears from exhibit 3(e) dated the 28th of May, 1948, that the Government of Bihar agreed to pay to the plaintiff compensation equivalent to his pay for three months at Rs. 400 per month and the Conservator of Forests had requested the Government to authorise the Accountant General, Bihar, to issue an authority slip in the name of the plaintiff for Rs. 1200. Exhibit 3(1), dated the 24th of February, 1949, is a letter from the Secretary to the Government of Bihar, Revenue Department, Patna, to the plaintiff in which it is made perfectly clear that the payment of the above sum of Rs. 1200 was in full discharge of the plaintiff's claim.
In this letter it is stated that the plaintiff was entitled to leave for three months and to a notice of three months and that in lieu of these two privileges Government had sanctioned a sum of Rs. 1200 which represented his leave salary for three months and at the same time gave him notice for three months. The plaintiff, therefore, knew perfectly well that this sum of Rs. 1200 was being offered to him in full satisfaction of his claim both on the ground of leave salary as well as on the ground of three months' notice. It was open to him to have accepted or refused the above offer. From exhibit 3(U), dated the 27th of February, 1949, it appears that he accepted the offer and requested Mr. Raman, Secretary to the Government of Bihar, Revenue Department, for a direction for the payment of the above amount of Rs. 1200 to the plaintiff. From his evidence it appears that he actually received the amount in 1949. It has, therefore, been contended on behalf of the appellant that he having accepted the offer, could not put forward any further claim.
The argument advanced is that where an offer is made subject to a condition and that offer is accepted, the person accepting the offer must be presumed to have accepted it with the condition so attached and he cannot be heard to say that though he accepted the offer, he was not bound by the condition. The argument seems to be well founded and must prevail. Reference may be made in this connection to the case of Faithful Croft v. Benjamin Lumley (1858) 10 ER 1459. At page 1468 Mr. Baron Channell observed as follows:
"The party paying the money had, in my Judgment, a clear right to appropriate it. He distinctly paid the money as rent. He refused to pay it otherwise than as rent. Mr. Martelli refused in language to receive it as rent; but he did take it. What he did, not what he said, was in my humble opinion the all important matter. He should have declined to take the money at all, if he meant to elect to proceed for a forfeiture."
At page 1469 Mr. Baron Watson stated as follows: "The facts on this part of the case are, that Mr. Martelli by his correspondence asserted that he would not take the money as rent, or receive it under protest Mr, Barries on the part of the lessee offered to pay the rent, and offered and tendered it to Mr. Martelli, the plaintiff's agent, as and for the rent, and required that it should be received if at all, as rent. Mr. Martelli took the money up, making the observation that he would take it for the occupation.
In my opinion he received it as it was tendered, viz. as rent. It was not offered as for use and occupation, or mesne profits; indeed, it could not be, as the amount or value of the occupation had not been ascertained. The money was tendered as rent, and being received, it is the receipt of rent, and therefore, 1 am of opinion that there was a waiver of any of the supposed forfeitures".
In Sheikh Mahomed Jan v. Munshi Ganga Bishun Singh, 38 Ind App 80 the property in suit was put up for sale by the Collector in respect of the unpaid balance of a kist of revenue payable in January, 1902. It appeared that the appellant had paid and the Government accepted the full amount thereof, both parties appropriating the payment to that kist, but that subsequently the Treasury officials had appropriated the same in the first instance to the last payable in September, 1901, with the result that the money was still due for the January kist for which the estate was sold under the revenue sale law.
It was held that the appropriation could not be varied without the consent of the appellant, that there was nothing due in respect of the January kist, and that the sale was without jurisdiction. The point raised on behalf of the appellant is supported by the above decisions and is accepted. It was, however, contended by Mr. Ghosh for the plaintiff-respondent that the acceptance by the plaintiff must have been under protest.
He, however, conceded that there is nothing on the record to show that it was accepted under protest. As to what would be the result of acceptance under protest need not be decided here, because in the absence of any protest the question does not arise. The decree passed against the appellant, namely, the State of Bihar, in this case, therefore, cannot be maintained and has to be set aside.
15. The result, therefore, is that F. A. 126 of 1953 is allowed in part and the decree of the learned Subordinate Judge with respect to the travelling allowance passed against defendant No. 2 is set aside and the suit of the plaintiff to that extent is dismissed, but his decree passed against that defendant for the salary of the plaintiff for the months of November and December, 1947, and for the refund of the security amount is maintained; and F.A. 92 of 1953 is allowed in full and the decree passed against defendant No. 1 for the salary of the plaintiff from the 1st of April, 1948, to the 22nd of May, 1948, is set aside and the suit of the plaintiff is dismissed to that extent. In the circumstances of the case, however, the parties will bear their own costs throughout.