ORDER
D.M. Dharmadhikari, J.
1. This revision under Section 19 of the M.P. Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'the Act' for short) has been preferred against the award of the Arbitration Tribunal dated 7-4-1997 whereby the claim preferred by the appellant/contractor has been dismissed in toto and the counter-claim preferred by the Irrigation Department through its Engineer and the State has been allowed by directing the contractor to pay a sum of Rs. 1,62,637/- (inclusive of interest) due upto the date of filing of claim i.e. 26-11-1996 and further interest at the contractual rate from 26-11-1996 on the outstanding amount of loan advanced in the sum of Rs. 94,658/-.
2. The facts not in dispute are that the applicant/contractor was awarded work for excavation of Chachai Distributary from Ch. 95 to Ch. 225 as part of the Bansagar Multipurpose River Valley Project. The contractor was sanctioned a total loan of Rs. 5 lacs for purchase of machinery which was an excavator/loader. The amount of advance was repayable with interest by the contractor and could be adjusted against the running bills. A sum of Rs. 69,000/- against the advance of 2 lacs for the sanctioned loan was recovered from the contractor. According to the department, the contractor, against the terms of the contract, removed the machinery from the work-site for his use in some other work. Since the machinery was hypothecated with the department and was specifically purchased for being used for the contract work in question, a police report was made for offence under Section 406 I.P.C. and the machinery was seized and given on Supurdnama to the contractor. The above incident in which the contractor denied commission of any offence of breach of trust led to dispute between the parties and the contract awarded to the contractor was not completed by him.
3. The contractor made reference of the dispute to the Arbitration Tribunal and laid a claim for loss and damage on several heads in the total sum of Rs. 5,60,000/- and claimed interest thereon at the rate of 18% per annum.
4. The department not only opposed the claim alleging breach on the part of the contractor but also filed a counter- claim for recovery of loss caused to the department in getting the unfinished work done through another agency. A seperate claim was laid in the sum of Rs. 1,43,439/- as the balance amount payable by the contractor for return of the money advanced for purchase of machinery including interest thereon.
5. The Arbitration Tribunal by the impugned award held that there was no breach on the part of the department. The Tribunal, therefore, dismissed the whole claim laid by the contractor. The Tribunal also rejected the claim of the department for recovery of loss for getting the unfinished work executed through another agency. It, however, accepted the counter-claim of the department only to the extent of Rs. 1,43,439/- as the loan liable to be returned by the contractor with interest for the money advanced for purchase of machinery. The amount of loan with interest payable upto the date of filing of the counter-claim and future interest on the outstanding amount of loan till the date of payment has been awarded.
6. Learned counsel Shri Kishore Shrivastava appearing for the petitioner, in view of the limited scope for interference by this Court in revisional jurisdiction, could not assail the finding of the Tribunal against the contractor that there was no breach of contract on the part of the department. The award of the Tribunal has been challenged only on two grounds. The first ground urged is that under the provisions of the Act, the rules and the regulations framed thereunder, the Tribunal had no jurisdiction to entertain a counter-claim submitted by the State and pass an award on the same. The second ground urged is that except for filing a statement in the form of Schedule to the counter-claim, the department led no evidence in support of its claim and mere production of the statement of accounts should not have been relied by the Tribunal to pass an award in favour of the department.
7. We shall take up for consideration the two grounds urged in the serial in which they were argued. So far as tenability of the counter-claim is concerned, undoubtedly, there is no specific provision in the Act, Rules and Regulations providing for submission of such counter-claim. The counterclaim was admitted by the Tribunal on the basis of a Full Bench decision of the Tribunal reported in 1992 Arbitration Tribunal Law Reporter 460 (Pannalal v. State of M.P.). After examining in detail the provisions of the Act, Rules and Regulations and after considering the arguments advanced by the counsel appearing for the parties, projecting different views on the subject, the Full Bench of the Tribunal held that such counter-claim is tenable as a counter reference. The conclusion with reasonings of the Full Bench of the Tribunal is quoted below :--
'14. To conclude on a consideration of the aforesaid case law and for reasons already discussed, the present enactment is not an antithesis of Arbitration; but the Special Act provides arbitration by 'statutory Tribunal' of the disputes in the class of 'works-contract', it is a Quasi-judicial Tribunal, with trappings of a Court; the Legislature has provided a statutory forum in place of Arbitrators appointed before under the Arbitration Act which is impliedly repealed to the extent of provisions under Special Act; that 'either party', so far as 'disputes' about works contract are concerned has to file a Reference before Tribunal; when one party files a claim and the other party, (called the respondent under Rules, 1985) files a 'counter-claim', both the 'claim' and 'counter-claim' have to be heard by the Tribunal and according to well established principles by the same Bench, for reasons already stated, and what would be so even when both parties have filed independent References in office of Registrar. But when the respondent files a counter-claim besides denying a claim by written reply during the course of hearing before the Bench, it would be a 'counter-claim' as contemplated under Order 8, Rule 6-A to C.P.C.; and as per established procedural practice, whether under the C.P.C. (now under statutory amendments in 1976) or under this Adhiniyam, it could be before the same Bench; that the aforesaid C.P.C. provisions are good time honoured guide-lines though not specifically made applicable under Adhiniyam; that such procedural practice is reasonable and convenient to all concerned -- and is not prohibited by Adhiniyam & Rules and Regulations thereunder; that the Tribunal under Sections 10 and 11 of Adhiniyam has ample powers to regulate its own procedure; and only limitations are that it should be 'Just and Fair' and not against rules of natural justice; that the Tribunal has also inherent powers under Section 17-A 'for the ends of justice' or 'to prevent abuse of the process of law' and such powers could be exercised so long as they are not in derogation of specific provisions of law; that no person has any vested right in procedural matters and in adopting the practice there is not even a whisper of a suggestion how the petitioner would be prejudiced or that it would work hardship to anyone; Arbitrators and for that matter Statutory Arbitrator when a dispute is raised are bound to adjudicate not only in respect of a claim, but also a counter-claim which are integral parts, and in fact two sides of the same medal.'
8. The learned counsel appearing for the contractor argued that Section 12 of the Act conferred only certain specific powers of the Civil Court contained in the Code of Civil Procedure on the Tribunal and Order 8 Rule 6 of the C.P.C. providing filing of a counter-claim is not applicable to proceedings before the Tribunal. The learned counsel criticised the reasoning and conclusion reached by the Full Bench of the Tribunal saying that the maxim 'casus omissus' i.e., an omission in a statute can be supplied only by the statutes or statutory action. The Court cannot put into the Act words which are not express and which cannot reasonably be implied on any recognised principles of construction. Reliance is placed on a decision of Privy Council in the case of Kumar Kamal Ranjan v. Secretary State (AIR 1938 P.C. 281). Reliance is also placed on decisions of the Supreme Court in Jyotsna Arvind Kumar Shah and Ors. v. Bombay Hospital Trust [(1999) 4 SCC 325], Superintending Engineer and Ors. v. B. Subba Reddy (AIR 1999 SCW 1479) and Budhia Swain v. Gopinath Deb and Ors. (AIR 1999 SCW 1814).
9. Shri Naman Nagrath, Panel Lawyer for the State, in his reply submits that in a pending reference by the contractor, a counter claim is in the nature of a counter reference and without insisting on technicalities, the Tribunal had jurisdiction on technicalities, the Tribunal had jurisdiction, by the flexible procedure by which its proceedings are conducted, to entertain a counter reference or claim by the department. Strong reliance is placed on decision of the Supreme Court in A.A. Haja Muniuddin v. Indian Railways (AIR 1993 SC 361).
9A. In order to answer the legal and jurisdictional question raised on behalf of the contractor regarding the tenability of a counter-claim by the opposite party in pending reference on a dispute before the Arbitration Tribunal, it is necessary to briefly examine the relevant provisions of the Act, Rules and Regulations. The history of the relevant legislation in question is that in works contracts there invariably was an arbitration clause for appointment of a sole arbitrator or two arbitrators, one by each of the parties with an umpire. The dispute used to be decided by such an arbitration forum consisting of the members chosen by the parties. The Arbitration forum did not inspire the expected credibility and attacks on its impartiality used to be made. It was, therefore, thought necessary to provide for a statutory Tribunal with members possessing both judicial and technical expertise to provide an independent and impartial forum to the contractors and the government or governmental authorities for adjudication of disputes in 'works contracts'. Section 7 of the Act provides that either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. The dispute or reference shall be drawn up in the prescribed form supported by an affidavit and shall be accompanied by such Court fees as is prescribed. Section 7-A, introduced by amendment, provides that every reference petition shall include whole of the claim which the party is entitled to make. This section also enables the parties to raise further disputes in relation to the same works contract in the same reference petition. Section 7-B prescribes a period of limitation of one year from the date of communication of the decision of the final authority, if there be any. Under Section 8, on presentation of a reference containing the dispute, the opposite party will be noticed which shall have a right to file a reply. Section 10 enables the Tribunal to frame Regulations for its procedure. Section 11, which is most important for the purpose of the controversy in question, allows the Tribunal to regulate its own procedure and reads as under :
'11. Tribunal or Bench to regulate its own Procedure.-- Notwithstanding anything to the contrary contained in Arbitration Act but subject however to any regulations that may be made under Section 10, the Tribunal shall regulate its own procedure as it may think just and fair, but a party shall not be denied its right of being represented by an advocate or a recognised agent.'
Section 12 of the Act invests the Tribunal with certain specified powers of the Code of Civil Procedure and reads as under :--
'12. Power of Tribunal or Bench regarding discovery, production of evidence, affidavit etc.-- (1) The Tribunal shall, for the purpose of this Act, have the same powers as are vested in a Court under the Code of Civil Procedure, 1908 (No. 5 of 1908), when trying a suit in respect of the following matters, namely :--
(a) discovery and inspection;
(b) enforcing the attendance of any person and examining him on oath;
(c) examining or allowing either party to a reference to examine an expert on any point at issue where opinion of such expert would be relevant under the provisions of the Evidence Act, 1872 (No. 1 of 1872);
(d) compelling the production of books of account and other documents subject to the provisions of Sections 123 and 124 of the Evidence Act, 1872 (No. 1 of 1872);
(e) issuing commissions;
(f) calling proof of facts by affidavit of the party or of any witness and ordering that such affidavit may be read at the hearing on such conditions as the Tribunal of the Bench concerned, thinks fit.'
Inherent powers have specifically been conferred on the Tribunal by amendment which are contained in Section 17-A. Section 17-A reads thus :
'17-A. Inherent Powers.-- Nothing in this Act shall be deemed to limit or otherwise affect the inherent powers of the Tribunal to make such order as may be necessary for the ends of justice or to prevent abuse of the process of the Tribunal :
Provided that no interim order by way of injunction, stay or attachment before award shall be granted.
Provided further that the Tribunal shall have no power to review the award including the interim award.'
10. Section 29 of the Act contains the rule making power of the State Government. In exercise of its rule making power, the State Government framed rules namely, M.P. Madhyastham Adhikaran Niyam, 1984. Rule 7 prescribes a form for reference in the nature of a petition which must contain paragraphs mentioning the nature of contract, the nature of disputes or differences, the reliefs claimed and valuation with specifically mentioning the person who is liable to pay the claim.
11. In exercise of its powers under Section 12 of the Act, the Tribunal has framed Regulations for regulating its procedure. Under Regulation 3, a reference petition in the prescribed form has to be presented to the Registrar. Thereafter, the Registrar shall place it before the Bench of the Tribunal for orders. Neither under the Act nor the Rules nor Regulations there is any specific provision permitting filing of any counter-claim or counter-reference by the opposite party in a pending reference. In the absence of any such express provision, the question is whether the Tribunal can adopt such a procedure whereby in a pending reference the opposite party may be allowed to make a counter-reference or claim in relation to the same works contract.
12. The contention advanced on behalf of the contractor is that in the absence of an express provision for counter-claim or counter-reference, recourse to the Code of Civil Procedure cannot be had to permit making of such counter-claim or reference. The Full Bench of the Tribunal has taken the view that the provisions of the Rules and Regulations do not in any manner inhibit the Tribunal to evolve a just and fair procedure for convenience of the Tribunal and the parties to allow the opposite party to prefer a counter claim or reference.
13. In our considered opinion, whether the Tribunal can assume such a power of procedure is a question which should be decided keeping into consideration the aims and objects for which the Act was brought into force. The Act provides a Judicial Tribunal for deciding disputes between parties in works contracts.
14. In the earlier paragraphs of this order we have indicated the background in which the State Legislature thought it necessary to provide a forum of a statutory Arbitration Tribunal to parties involved in disputes in works contracts in substitution of the Arbitrators either nominated by the department or appointed by the parties. Arbitration Tribunals have been constituted as substitutes for the traditional Courts which were found ill-suited for adjudication of such disputes. The procedure of the traditional Courts is too formalistic and burdensome. It is not flexible enough to deal rapidly & efficiently due to lack of technical knowledge on the subject matter of disputes which arise in works contract. Under Section 11 of the Act (quoted above), the Tribunal is empowered to regulate its own procedure. The counsel for the contractor argues that under Section 10 when regulations have been framed by the Tribunal laying down procedure before it to be followed by the parties, in exercise of powers under Section 11 the Tribunal could not evolve a procedure of permitting filing of a counter-claim not provided by the Regulations. On reading Sections 10 and 11 together we find that by framing of Regulations for procedure, the Tribunal is not in any manner inhibited for adopting such just and fair procedure as would advance the cause of justice and be convenient to the parties and Court. By permitting a counter-claim or reference, the Tribunal has not in any manner violated any of the provisions of the Rules or Regulations but in fact has tried to fill the gap in them. In our opinion, Section 11 is clearly intended to empower the Tribunal with ancillary powers to deal with disputes requiring technical and legal expertise. The legislature intends that the Tribunal should have simpler procedure than in regular Courts, the procedure should be more flexible, speedy, informal as well as socially and technically conscious. The Constitution of the Arbitration Tribunal is such that it has on its Bench technical expertise through the Technical Member and legal expertise through the Judicial Member. They together provide a forum totally different from traditional Civil Courts for deciding disputes in a less formal but speedier manner. The provisions of Sections 10 and 11 with the Rules and Regulations framed thereunder have to be interpreted keeping in view the aim and object of the legislation under consideration. We find that the Full Bench of the Tribunal has not in any manner tried to legislate in permitting filing of a counter claim or has tried to substitute some words or rules in the Act and the Regulations. Its attempt has been to evolve a just and fair procedure for better and quicker dispensation of justice. A counter-claim, in our view, is nothing but a reference of dispute in relation to same works contract by the opposite party. It cannot be said that the opposite party (such as the department of the State herein) is not competent to make a reference under Section 7 of the Act. The subject matter on which it has filed the counter-claim constitutes relevant material for filing a separate reference petition. The counter-claim is, therefore, nothing but a counter-reference petition. It is not the case that the party submitting such counter-reference has not followed the provisions regarding payment of Court fees on it as leviable under the rules. It is also within limitation. It is true that as required by the Regulations, a reference petition is to be filed in the Registry before the Registrar and then it is placed before the Bench. But merely for this reason it cannot be said that the Bench of the Tribunal which is competent to adjudicate the dispute cannot entertain a reference directly. The Registrar in receiving the claim petition only discharges ministerial or administrative functions. The judicial function or powers of the Tribunal thereby are in no manner inhibited. Even if counter-claim is held untenable, the opposite party was in any case entitled to file a counter-reference petition for its claim and dispute. In such a situation where two petitions or claims on same works contract have been filed, it would be in the interest of justice and fair procedure for the Tribunal to have clubbed them for a joint trial. If a counter reference could be filed by the opposite party which could be linked for trial and disposal by the Tribunal with the pending reference of the contractor, we find no logic or reason why the reference tenable at the instance of opposite party cannot be entertained in the same pending reference as a counter reference on payment of the requisite Court fees on it and within the prescribed period of limitation. The decision in A.A. Haja Muniuddin (supra) relied on, on behalf of the department fully supports the view taken by us. In that case, there was no specific provision permitting filing of a claim before the Railway Claims Tribunal by the party as a pauper or indigent person as provisions of Order 33 of the C.P.C. were not applicable to the proceedings before the Railway Tribunal. By construing provisions similar to those contained in Section 11 of the Act under consideration before us, the Supreme Court held that a pauper who is unable to pay Court fees cannot be denied the remedy before the Railway Tribunal. It was observed thus :
'... Nowhere in the Act is there any provision which runs counter to or is inconsistent with the provisions of Order XXXIII of the Code. Although the Act and the Rules do not specifically provide for the application of Order XXXIII of the Code, there is nothing in the Act or the Rules which precludes the Tribunal from following that procedure if the ends of justice so require. If the view taken by the Tribunal is accepted as laying down the correct law, the result would be that a claimant who has a genuine claim for compensation under the provisions of the Act would be denied access to the Claims Tribunal if he is an indigent person and does not have the means to pay the fee required on the claim petition. Before the establishment of the Claims Tribunal he would have been able to file the suit invoking Order XXXIII of the Code as an indigent person. Now that a Special Claims Tribunal has been established under the Act, can it be said that indigent persons who do not have the means to pay the fee required on the claim application are altogether debarred from seeking compensation from the railway administration for the wrong done to them Access to justice cannot be denied to an individual merely because he does not have the means to pay the prescribed fee. Such a view would leave indigent persons without a remedy. It is, therefore, essential that the provisions of the Act and the Rules must be broadly interpreted to ensure access to justice. If a claimant is left without redress even if he has a valid claim against the railway administration merely because he is an indigent person, it would be a sad day and the poor will lose confidence in the system. No one can be heard to say, much less the railway administration, that even though the claimant has a genuine claim for compensation against the railway administration, he must forgo the same if he does not have the means to pay the requisite fee. Such an interpretation which denies justice must be avoided. Section 18(1) only says that the Claims Tribunal 'shall not be bound' by the procedure laid down by the Code but does not go so far as to say that it 'shall be precluded' from invoking the provisions laid down by the Code even if the same is not inconsistent with the Act and the Rules. Since the Claims Tribunal is empowered to regulate its own procedure, there is nothing in the Act and the Rules which precludes the invocation of Order XXXIII of the Code. A view which advances the cause of justice must be preferred to the one which defeats it. We are, therefore, of the opinion that the Tribunal adopted a narrow interpretation of the relevant provisions of the Act in coming to the conclusion that the Act as well as the Rules did not permit invocation of Order XXXIII of the Code. The view taken by the Tribunal results in a person not having the means to pay the fee prescribed for preferring a claim being left without a remedy. Such a view would result in gross injustice. The Tribunal has the power to lay down its own procedure and as stated earlier Section 18 (1) does not preclude it from invoking the provisions of Order XXXIII of the Code if the ends of justice so require. When an indigent person approaches the Tribunal for compensation for the wrong done to him, the Tribunal cannot refuse to exercise jurisdiction merely because he does not have the means to pay the fee. In such a situation we think the ends of justice require that the Tribunal should follow the procedure laid down in Order XXXIII of the Code to do justice for which it came to be established.'
15. The decisions of the Supreme Court relied on behalf of the contractor are clearly distinguishable. In the case Superintending Engineer v. B. Subba Reddy (AIR 1999 SCW 1479), the cross-objection by the respondent in an appeal under Section 39 of the Arbitration Act was held to be untenable. The reason assigned by the Supreme Court is obvious and has been elaborated in paragraph 25 of its judgment. The respondent had a right of preferring an independent appeal under Section 39 of the Arbitration Act within limitation and grounds limited by the provisions of the said Section. It having failed to avail the remedy of preferring an appeal under Section 39, in an appeal preferred by the opposite party it could not have been allowed to prefer a cross objection by taking recourse to Section 41 of the Act providing application of Code of Civil Procedure to the proceedings under the Arbitration Act. Such is not the case here. The opposite party i.e., the State had an independent right of filing a reference petition on Court fees and within limitation and its counter-claim has been treated as such - may be, it has been allowed to be filed in the same case preferred by the contractor.
16. The case of Jyotsna Arvind Kumar Shah v. Bombay Hospital Trust [(1994) 4 SCC 325] is also distinguishable wherein it has been held that an ex parte reasoned order passed by the State Commission under the provisions of Consumer Protection Act cannot be recalled or reviewed in the absence of an express power of review conferred on the Forum. The case of Budhia Swain v. Gopinath Deb and Ors. (AIR 1999 SCW 1814) is also distinguishable in which the point involved was totally different. The Supreme Court has held that a Tribunal or a Court has inherent power to recall or review an order which suffers from inherent lack of jurisdiction or is vitiated by fraud or collusion. Court or Tribunal has, however, no such power of review or recall where there is only an error in exercise of jurisdiction and not complete lack of jurisdiction, fraud or collusion.
17. In our considered view, therefore, the Tribunal committed no error in permitting the respondent-State to prefer a counter-claim and in deciding the same on the basis of finding reached by it. .
18. So far as the second ground urged on merits is concerned, learned counsel for the petitioner/contractor contends that except for mentioning their statement of claim in the schedule to their counter claim petition, the State through its department led no evidence to justify an award in favour of the department. Reliance is placed on the provisions of Section 34 of the Evidence Act and decisions of the Supreme Court in the case of Chandradhar Goswami v. Gauhati Bank Ltd. (AIR 1967 SC 1058) and the famous Jain Hawala case i.e., Central Bureau of Investigation v. V.C. Shukla[(1998) 3 SCC 410].
19. We have carefully looked into the record of the Tribunal as also the evidence led by the parties and we find that there absolutely no merit in the submission made. The petitioner as contractor has himself in Schedule-F given the details of the total machinery advance granted with the amount of interest claimed and the recovery initially made from its running bills. The respondent/department submitted a counter claim in which in paragraph 25 of its reply it has given the details of the claim both towards the loss caused in getting the unfinished work executed through another agency and the balance amount towards the machinery advance with interest. We find the following order recorded by the Tribunal on 7-12-1996 with respect to the claim towards machinery advance and the deductions made towards it from the running bills of the contractor :
'Shri S.S. Sharma, Advocate for the Petitioner.
OIC Shri V.N. Thosar, E.E. for the Respondents.
We are hearing arguments in Ref. Case No, 54/91 which will take the whole day. It is not possible to hear arguments in this case today. Moreover, one of the members of the Bench viz., Shri D.S. Chaudhary was on leave, but he cancelled his leave and has come back yesterday. It was expected that the arguments will not be heard today in this case due to leave of Shri D.S. Chaudhary. For this reason the respondents' counsel Shri R.C. Agarwal has also not come. The case is therefore adjourned for hearing of arguments. The OIC today filed a statement about deductions made in the running bills and the final bill and another statement about interest outstanding on machinery advance. Copies of the statements have been furnished to the other side. The opposite side is free to point out any mistakes in these statements by the next date.
Put up for hearing of arguments on 31-3-97.'
20. The petitioner in reply to the counter-claim amended his reference petition and disputed his liability towards the machinery advance and interest only on the ground that the action of the department was not justified in making a police report under Section 406 I.P.C. and in seizure of the machinery. As has been pointed out above, he has not disputed the quantum of the machinery advance, the part-payment made towards it, the outstanding amount of loan and the rate of interest. In view of the specific order-sheet, quoted above, of the Tribunal, it was open to the contractor to file a counter-statement disputing the quantum against the above claim towards machinery advance and interest, but he failed to do so.
21. On behalf of the department, document Ex. D-42 was filed containing the statement showing the machinery advance and the amount of interest calculated for the periods mentioned therein. The department examined its Engineer Himmatlal Tamrakar as D.W. 2 who proved the correctness of the estimate Ex. D-42 and it was marked and exhibited thus. He was cross-examined on behalf of the contractor by his counsel but the contents of the statement of accounts contained in Ex. D-42 were never challenged.
22. From the proceedings of the Tribunal, it is thus apparent that the contractor disputed his liability towards machinery advance and interest on the ground that a false police report leading to seizure of the machinery was made on behalf of the department, but the contractor never questioned the quantum of such claim and never disputed the correctness of the statement of accounts contained in Ex. D-42. In these circumstances, it is not found to be a case where the liability of the contractor has been found only on the statement of accounts and without any evidence. As the quantum of the claim was not disputed by the contractor, it was not necessary for the department to lead any other evidence. The contractor has accepted the correctness of the statement of accounts Ex. D-42 by not disputing its correctness when specific opportunity was given to him for doing so by filing his own statement of account or cross-examining the witness produced by the department. In the state of record, it cannot be held that the contractor has been charged with liability merely on the basis of entries in books of account contrary to Section 34 of the Evidence Act. The decisions of the Supreme Court (supra) relied on this aspect by the contractor, therefore, are of no help to him.
23. Consequent to the above discussion, we find no merit in any of the contentions advanced on behalf of the contractor. As a result, the revision is dismissed, but in the circumstances, without any order as to costs.