Hardyal vs State of Punjab

H.R. Sodhi, J.

1.This first appeal from order has come before us on a reference made by my Lord the Chief Justice. The two questions of law which require decision, are as follows:

(1) when the parties in an arbitration case continue without objection participating in proceedings before the arbitrator, who gives the award after the time fixed for making the award, are they estopped from raising an objection subsequently as to the validity of the award on the ground that it had been made after the prescribed time ?

(2) if an objection as to the invalidity of the award on the ground of its having been made after the expiry of the period fixed for the same is taken before the Civil Court in order to get the award set aside u/s 30 of the Arbitration Act, 1940, and the objection is not accepted by the Court, can it be said that the Court must be deemed to have enlarged the time for making the award ?

The facts which led to the reference are not in dispute and may be stated in a narrow compass. Hardyal Appellant entered on 4th January, 1958 into a contract with the State of Punjab, Public Works Department, Building and Roads Branch, for the construction of some bridges and culverts on the Mukerian-Naushehra road. In the written agreement between the parties there was an arbitration clause which provided that the disputes, if any. would be referred for arbitration to the Superintending Engineer, Public Works Department, (Buildings and Roads), Jullundur Circle, who would be the sole arbitrator. Some disputes did arise as a result whereof the Appellant sent a notice, Exhi bit C. 2 on 7th January, 1960, to the Superintending Engineer calling upon him to accept his claim to the tune of Rs. 7,568/- and give his award accordingly. It is not necessary to make a mention of the details of his claim and suffice to state that the Appellant claimed this amount as compensation because of the Sub Divisional Officer having got demolished certain bridge which according to the Appellant had been constructed in accordance with the terms of the agreement Since the Appellant had also been directed to stop his work, the total claim for compensation, including that for demolition of the bridge, as made by him was for the said amount. The proceedings commenced before the arbitrator and the first date of hearing was 20th February, 1981. It is not disputed that both the parties continued taking part in the proceedings which ultimately ended in the impugned award dated 28th April, 1961. The claim of the Appellant was rejected in toto by the arbitrator. The Appellant then presented an application on 1st June, 1961, in the Court of Senior Subordinate Judge, Hoshiarpur, raising certain objections u/s 30 of the Arbitration Act, 1940 (hereinafter called the Act) and prayed that the award made by the Superintending Engineer on 28th April, 1961, be set aside. The objections raised were:

(i) That the arbitrator had misconducted himself and not allowed the claim of the objector even in regard to the items admitted by the department ;

(ii) That reasonable opportunity was not afforded to the objector to adduce evidence ;

(iii) That the award was against natural justice ; and

(iv) That the award was given after inordinate delay and was otherwise also invalid.

The Senior Sub-ordinate Judge, Hoshiarpur, dismissed the objections by his order dated the 18th April, 1962, thereby upholding the award. The objection regarding delay in making the award was repelled on the short ground that the Appellant had participated in the proceedings throughout upto the announcement of the award and was not able to convince the Court as to how delay in such circumstances could by itself be enough for setting aside the award. It is not necessary to state the reasons for rejecting other objections since the same are not relevant for the purposes of the present reference. The objector Hardyal then preferred an appeal in this Court which came up for hearing before my Lord the Chief Justice who, because of the importance of the questions involved and the conflict of judicial opinion in regard to question No. (1), referred the case for decision by a Division Bench.

In order to answer the questions referred to us it is necessary first to determine what is the time within which an award must be given and if the award is not made within such a time, who has the power to extend it. The relevant provisions in this connection are contained in Sections 3 and 28 of the Act read with para 3 of the First Schedule appended thereto. These provisions are reproduced below in externa for facility of reference:

An arbitration agreement, unless a different itention is expressed therein, shall be deemed to include the provisions set out in the First Schedule in so far as they are applicable to the reference.

(1) The Court may, if it thinks fit whether the time for making the award has expired or not and whether the award has been made or not enlarge from time to time the time for making the award.

(2) Any provision in an arbitration agreement whereby the arbitrators or umpire may, except with the consent of all the the parties to the agreement, enlarge the time for making the award, shall be void and of no effect.

The First Schedule.

(3) The arbitrators shall make their award within four months after entering on the reference or after having been called upon to act by notice in writing from any party to the arbitration agreement or within such extended time as the Court may allow.

A perusal of the above-mentioned provisions of law leaves no manner of doubt that it is open to the parties to an arbitration agreement to fix a time within which the arbitrator must give an award but it has to be so stated in the arbitration agreement itself. If no such time has been specified by the parties in the arbitration agreement then by virtue of the operation of Section 3 read with para 3 of the First Schedule, the award must be given within four months of the arbitrator entering on the reference or after having been called upon to act by notice in writing from any party to the arbitration agreement or within such extended time as the Court may allow. The power to extend time has been given to the Court by virtue of Section 28(1) and this power can be exercised even after the award has been made. Marginal note to this section is in the following terms:

power to Court only to enlarge time for making award.

I have made reference to the marginal note to dispel any doubt about the intention of the Legislature which obviously is that it is the Court alone which can extend time whether the award has been made or not. There is only one contingency envisased in Section 28(2) when an arbitrator or umpire can also extend the time but that is when a provision to that effect has been made in the arbitration agreement itself; and it specifically provides that the arbitrator or umpire may enlarge time for making the award with the consent of all the parties to the agreement. Except in such a contingency, it is the Court and Court alone that can extend time for making an award,

The policy of law has always been that awards are given as expeditiously as possible and in furtherance of this policy it is provided by the Act that time cannot be extended by the parties or even by the arbitrators and it is the Court which must apply its mind and agree to the extension of time. If a Court finds that the making of the award is being unnecessarily delayed whether for any fault of the arbitrators or the parties, it can exercise its discretion and supersede the arbitration altogether thereby leaving it to the parties to have recourse to proceedings by way of a regular suit. It is not correct to say that the parties, by mutual consent whether expressed in writing or given orally, when the arbitrators are seized of the proceedings, can have the time enlarged without the intervention of the Court. There is one and only one eventuality as referred to in Sub-section (2) of Section 28 which is in the nature of a proviso to that section when the arbitrators or umpire can enlarge the time with the consent of the parties to the agreement and that is where a provision to that effect appears in the arbitration agreement.

The next question that arises for consideration is as to whether an award which has not been made in time is invalid and liable to be set aside u/s 30. Ch. Roop Chand, learned Counsel for the Appellant, has invited our attention to a majority judgment of their Lordships of the Supreme Court in Hari Shankar Lal Vs. Shambhunath Prasad and Others, in support of the contention that the award not made in time is invalid. There cannot be a dispute that the time can be extended even after the award has been factually made. In Hart Shanker Lal''s Case, their Lordships were, of course, dealing with the question as to when an arbitrator can be said to have entered on the reference and from which point of time the period of four months is to be computed. We are not, in this case, conncerned with that aspect of the matter but some of the observations of their Lordships go to show that an award not made within four months from whatever may be the starting point for computing that period is made by an authority which had become functus officio. The expression functus officio implies that the arbitrator was no longer seized of the reference when he made the award and could not exercise any power or jurisdiction in that behalf.

The argument that the award made after the expiry of the period allowed by the Court is invalid is not without force. It is not possible to agree with the learned Counsel that it is a nullity or void ab initio as held by a learned Singale Judge of the Lahore High Court in Zarif V. Gharib Ullah 55 I C 221. Their Lordships of the Supreme Court have only observed that the award not made in time is invalid, given by a person who had become functus officio, but it is not intended to be laid down that the award is void ab initio. A void award which is a nullity cannot, be equated with an invalid award and the distinction between the two must always be borne in mind, what is intended by holding the award to be invalid in such a situation is that for all intents and purposes it cannot be operative or acted upon under the Act. A decree, order, award or any instrument which is a nullity need not be set aside as law will not take notice of them. An invalid award is only voidable and can he set aside at the instance of any party thereto, by an application u/s 30 of the Act Cases may arise when an award is void ab initio or,in other words, a nullity, as for instance where the agreement which led to the reference is itself illegal or void or the arbitrators have not been validly appointed. In such a case, there is initial want of jurisdiction in the arbitrators and the proceedings taken or the award made by them will in law be void and no rule of law enables a Civil Court to cure such a defect. The distinction is all the more necessary since invalidity of an award only furnishes a ground for setting aside the same. In case of an award given beyond the fixed time, if a Court chooses to exercise its discretion and exetend the time, the invalid award is validated from the date it was made and is a good award whereas any award which is a nullity cannot be validated. There may may be circumstances where the Court may refuse to set aside an award even when it is given beyond the time so fixed, and it can do so by condoning the delay u/s 28(1) of the Act. A civil Court has in this regard, to exercise its judicial discretion on the facts and circumstances of each case. In order to support his contention that the award given after the expiry of the period fixed by law is void, the learned Counsel also relied on a Full Bench decion of the Allahabad High Court in Ibara-him Alt and Anr. v. Mohsin Ali AIR 18 All 422 . The learned Judges held there that if the period fixed for making the award has expired before the award is made, the arbitrators have no longer seisin of the reference and they are funclus officio and they cease to have any more power to make an award than the man in the street, and that any award made by them would be void ab initio. This was a case decided under the old law and not under the Indian Arbitration Act, 1940, which gives a power to the Court to enlarge time for making an award even after the same has actually been ma de.

The other case referred to by the learned Counsel is Arbn Hindusthan Steel Vs. Appejay Pr. Ltd., which also is not of much help to him. The quesition before the learned Judge of the Calcutta High Court was as to whether a Civil Court could revoke the authority of an arbitrator when he had become functus officio because of the expiry of four months in terms of Rule 3 of Schedule 1 of the Act read with Section 3 thereof. The scope of Section 28 in the matter of condoning delay and extending time after the exepiry of the same was not before the learned Judge and the short matter that arose for consideration was only as to whether the. authority of the arbitrator could be revoked when, under the law, be could no longer be deemed to function. It was in these circumstances that it was held by the learned Judge that no question of revocation would arise. A reference has also been made by the learned Counsel to I.G.H. Ariff v. Bengal Silk Mills Ltd. AIR 1949 Cal 350, where the validity of the award had been challenged on various grounds one of them being that the award had been made after the time fixed had expired. The view taken was that the award was bad on this score. It has not been held there that award is to be treated as void ab intio, and no help can, therefore, be dra.vn from this case. The matter came up before a Full Bench of the Patna High Court in the case reported as M/s Bokaro and Ramgur Ltd. v. Dr. Prasun Kumar Banerjee AIR 1068 Pat 150, where Untwalia J., who delivered the judgment of the Court, observed that under the Act, an award made beyond time can never be held to be invalid or void merely on that ground. It is true that Section 28 empowers the Court to extend time even after the making of the award but with all respect to the learned Judges constituting Full Bench. we cannot persuade ourselves to agree with them that an award made beyond time is not invalid though it may not be void. A distinction between an invalid and a void award does not seem to have been kept in mind. The mere fact that the Court can extend time after the making of the award goes to show only this much that the award is not valid till the time is extended and the delay condoned, No doubt it is not so provided in the Act as was to be found in the CPC of 1882 that an award made beyond time is a nullity, nor as in the Code of 1908, it is a ground for setting aside the award that the same was not made in time, but once we hold that it is a statutory requirement of law that the award must be made within the time fixed or extended by the Court from time to time and there being no power in any one except the Court to extend the time except in a case covered by Sub-section (2) of Section 28, it follows as a necessary corollary that after the expiry of the prescribed time an arbitrator becomes functus officio and the award made by him cannot be regarded as a valid award, if was not necessary to incorporate in the Act any such provision as the award, if invalid, can be set aside u/s 30. The learned Judges of the Patna High Court in Bakaro''s case tried to distinguish the Supremo Court judgment in Hari Shanker Lal''s case on two grounds, firstly that it was not clear whether the parties objecting to the award being made the rule of the Court participated in proceedings before the award and. secondly that the point that fell for decision before the Supreme Court and actually decided was that a notice to act given in the circumstances of that case after the expiry of four months from the date the arbitrators entered on the reference could not give a fresh staring point for computation of the period of four months under Clause 3 of Schedule I to the Act, with all respect, we do not find any justification for the distinction sought to be brought about 39 above. Subba Rao J., as he then was, observed that "the arbitrators become funclus officio unless the period is extended by Court u/s 28 of the Act." According to his Lordship, "if time was not extended by Court the document described as an award would be treated as non est".

It may be that Court can extend time but certainly the award is non est till validated by an order of the Court and before such validation by condonation of the delay, the award is invalid, we must, therefore, hold that an award made after the expiry of the period by fixed law is an invalid award but not a nullity.

Now the question to be next determined is whether a party to arbitration proceedings who has continued participating before the arbitrator without an objection as to the time fixed for making the awaid having expired is estopped from raising an objection about the validity of the award when the seme is sought to be made a rule of the Court The duty to give an award in time is imposed by law on the arbitrators and not on the parties. Section 3 read with Rule 3 of the First Schedule provides that the award must be given by the arbitrators within four months after entering on the reference or after their having been called upon to act in the manner laid down in Rule 3 unless a different intention appears from the original arbitration agreement. The action of the arbitrator in not giving the award in time cannot be defended on the ground that he was allowed to continue with arbitration proceedings without an objetion by either of the parties. Any such position will irresistibly lead us to the conclusion that the time which under the law, could be extended only by an order of the Court passed u/s 28(1) or by the arbitrators or umpire under Sub-section (2) and that too if the original agreement of arbitration so provided, can be got extended by the parties themselves without the intervention of the Court.

A plain and bare reading of Section 3 and Rule 3 of the First Schedule leaves no room for doubt that a different intention has to be stated in the agreement itself and not that such an intention can be manifested in the course of proceedings before the arbitrator either by a mutual consent in writing or by conduct of the parties. The statute has, in order to secure expeditious decisions by arbitrators, imposed a positive duty upon them to make the award within the period of four months as referred to above or such further period as it may be extend-ed from time to time. To invoke the doctrine of estoppel will render the whole scheme of the Act nugatory and lead to that being done which is clearly prohibited by law. The mere fact that the parties could have originally fixed larger time than four months does not warrant the assumption that they can also be permitted to do so afterwards either by an agreement in writing or by their conduct. The rule of estoppel is primarily one of the rules of evidence, the underlying principle of which is that a party to litigation which has by his own declaration, act or omi-ssion, intentionally caused or permitted the other party to the same litigation to believe a thing to be true and act by on such belief will not be later allowed to change this position and say to the contrary In arbitration proceedings there are arbitrators as well who have a duty to perform and with all respect to the contrary view held by some Courts, we cannot accept the contention that the arbitrator has been misled because of the failure of a party to raise an objection and as a result whereof he continued with the arbitration proceedings in spite of the period of four months being fixed by law. It cannot also be said that because of the omission of one party to raise an objection, the other party to the proceedings has been led to believe anything to be true and to act upon such belief. The equitable principles of waiver and acquiescence are pressed into service in appropriate cases when there is a scope for applying the same. Where the law enjoins the arbitrators to make an award within a prescribed time, though it may be prescribed either directly by a statute or by being made an implied condition of the agreement because of a statute, the fact remains that it is a requirement of law and the award must be made within the time so prescribed.

An objection, whether taken by a party or not, will, in our opinion, nHke no difference. The award so made being invalid can of course be set aside u/s 30 of the Act. The Court in determining the question as to whether the award be set aside or not may take into consideration the fact that the party who is now seeking to avoid it, participated in the proceedings without an objection. The conduct of the parties is. thus, a relevant matter to be considered in deciding the question of extension of time u/s 28(1) of the Act, and this appears to be one of the reasons why the legislature has provided in the said section that time can be extended by the Court even after the award has been made To say that the rule of estoppel operates and the Court without applying its mind as to whether it should extend time or not must straightaway dismiss the objection of a party relating to the invalidity of the award which was made beyond time, is, in our opinion, not the correct appreciation of the legal position. It will depend on the facts and circumstarces of each case whether the Court should set aside an invalid award which is invalid because of its having been made beyond time.

When we actually find that the law precludes the parties from. extending time unless there is a specific provision in the original arbitration agreement it will be contrary to all established canons of interpretation to hold that the same result can be brought about by the conduct of the parties. It is a well established rule of law that there can be no estoppel against a statute. It is true as observed by the Full Bench is M/s Bakaro''s case that the matter of time to be fixed for making the award was initially one of agreement between the parties but it does not follow that in the face of clear prohibition by law that the time fixed under Rule 3 of the Schedule can only be extended by the Court and not by the parties at any stage, it still remains a matter of agreement and the rule of estoppel operates There is no goinsaying the fact that the Act has injuncted the arbitrator to give an award within the prescribed period of four months unless the same is extended by Court or the parties themselves had provided in their initial agreement of reference, that in a certain situation time could be extended. In the absence of any such provision in the arbitration agreement, the only plain meaning is that it is a statutory requirement that the award has to be made within the period of four months as enjoined in Rule 3 of Schedule I of the Act. To put the same thing differently, an arbitrator has no jurisdiction to make an award after the fixed time. The well-known proposition of law that there can be no estoppel against a statute means that no estoppel can be pleaded against the direction, injunction and prohibition of any statutory law and the right which accrues to a party by reason of any such direction, injunction and prohibition, cannot he denied to him by invoking the doctrine of estoppel. The expression , estoppel against statute has been explained in Article 345 of Halsbury''s Laws of England, Third Edition, Volume 15, in the following terms:

The doctrine of estoppel cannot be invoked to render valid a transaction which the legislature has, on grounds of general public polioy. enacted shall be invalid, or to give the court a Jurisdiction which is denied to it by statute, or to oust the statutory jurisdiction of the court under an enactment which precludes the parties contracting out of its provisions Where a statute, enacted for the benefit of a section of the public, imposes a duty of a positive kind, the person charged with the performance of this duty cannot by estoppel be prevented from exercising his statutory powers.

We are of the considered opinion that an award made beyond time being invalid, the parties are not estopped by their conduct from challenging the award on the ground that it was made beyond time because of their having taken part in the proceedings before the arbitrator after the expiry of the prescribed period. A similar view was taken by a Division Bench of Allahabad High Court in Kamta Pd. Nigam Vs. Ram Dayal and Others, nd a Bench of the Patna High Court in Bhimraj Panna Lal Vs. The Commissioner of Income Tax, . A different view, of course, had been taken in an earlier case, Patto Kumari v. Upendra Nath AIR 1919 Pat 93. That case was rightly distinguished in. Kamta Pd. Nigam''s case, apart from other points of distinction on the ground that the decision there was based on the provisions of Schedule 2 of the CPC Code, 19 8, which contained no provision analogous to para 3 of Schedule 1 of the Arbitration Act, 1940. The learned Judges in Patto Kumari''s case were of the view that Rule 8 of the Schedule enabling the Court to enlarge time from time to time was not manda-tory and imperative and that circumstances could arise where from the conduct of the parties, an inference could fairly be drawn that the parties intended and impliedly agreed to an extension of time. The judgment in Patto Kumari''s case proceeds on the assumption that it was open to the parties to agree at any stage to the enlargement of time which situation is not permitted under the Act. A Full bench of the same High Court in M/s Bakaro''s case did not approve of the Bench decision in Lakhmir Singh''s case but accepted the view taker in Patto Kumari''s case What seems to have weighed with the Full Bench was that in the Code of Civil Procedure, 1882, it had been provided that the award made beyond time fixed by the Court would be invalid while in the Code of Civil Procedure, 1908 this provision had been delated and in the Act it was only made a ground for setting aside the award. Support is also sought from the statement of law as given in Article 95 of Halsburj-''s Laws of England, Third Edition, Volume 11, a relevant part whereof runs as under;

Time for making award. * * * *

The parties to an arbitration agreement may expressly consent to the time for making the award being enlarged, but the consent should be given in writing, because an enlargement of time by consent of the parties amounts in law to a fresh agreement; and, therefore, unless the consent be in writing, the agreement becomes an oral submission, and the provisions of the Arbitration Act, 1950, cease to be applicable thereto.

The parties to an arbitration agreement may by their conduct be precluded from objecting to the award on the ground that it was made out of time, although they have given no express consent to the time for making the award being enlarged." At the foot-note, reference has also been made to Dankley (Ear) v. London, Chatham and Dover Rail Co .,(1887) I.R. 2HL 43 at p 57 that taking up an award made out of time did not preclude the party taking it up from objecting that it was made out of time. The controversy in that case mainly rented on the award that had been made beyond time and the argument raised was that the Defendant company was precluded by its conduct from objecting to the validity of the award. This argument was repelled by Koight Bruco J., though the whole matter rested on the terms of Article 10 of the agreement only and there was no statutory rule involved therein. In Tyreman v. Smith, 119 E R 1633 relied upon by the Full Bench, it was conceded before Lord Campbell C.J. that the award would be good if there were consents in writing. It was in these circumstances that it was held that the Plaintiff was estopped from saying that there was not such a written consent as was essential to the statutable authority. In other words, if there were written consent by the parties, there could be no objection to the award having been made beyond time. In another case reported as Palmer v. Metropolitan Rly. Co . (1862) 31 L JQB 269 the objection taken was that the award made after the expiry of the fixed period was a nullity, Mellor J. held there that "the arbitration clauses being introduced for the benefit of the parties, they are at liberty to renounce at their pleasure the advantage which those clauses afford". On the other hand, we find that a different view has been taken in Darnley (Earl)''s case.

It is not safe to refer to decisions of English Courts in view of the interpretation that we have placed on the relevant rule of law as contained in the Act. We must not be guided by the observations that arbitration clauses being for the benefit of the parties can be renounced at their pleasure. This approach may be sustained in ordinary agreements but arbitration agreements have been viewed by law differently it being intended that awards must be made expeditiously and the parties be not allowed to go on prolonging proceedings without the intervention of the Court. The Act has expressly laid down that the award must be made within four months or such other time as extended by the Court and the parlies cannot extend the same even by subsequent consent in writing unless there was a provision in the original agreement itself. The reason for allowing time to be extended by the agreement of the parties is that such agreement may amount to a fresh reference, but in the instant case, it has rightly not been contended before us that by applying the rule of estoppel, a fresh reference should be deemed to have been made

In M/s Bakaro''s case, the learned Judges have also approved of a single Bench decision in Seth Shambhu Nath v. Smt. Suraj Devi AIR 1961 AH 180 A Division Bench judgment of the same High Court does not seem to have been brought to the notice of the learned Single Judge and there, is not much discussion of the provisions of the Arbitration Act. The learned Judge relied upon the general principles under the law of contract and held that a condition in the arbitration agreement about the time for making the award is not a statutory condition and it is like any other conditrons which can be waived by the parties. In all respect to the learned Judge, his reasoning cannot be appreciated. After a reference has been made to an arbitrator, the conditions of arbitration agreement cannot be waived from time to time like any other ordinary agreement, when we find that the statute enjoins that the award must be given within a prescribed time unless in the original agreement the parties have reserved to themselves a right to get the time extended by the arbitrator. In the absence of any such reservation the power to extend time is only with the Court and the parties cannot circumvent that provision of law by their own conduct. Shamsher Bahadur J. in Sowaran Singh Vs. Municipal Committee, Pathankot and Another, . relying on the Supreme Court judgment in Hari Shanka? Lal''s case, (sic) case and held that the language of Rule 3 of the Schedule read with Section 8 of the Act makes it clear beyond doubt that the scope for admini.stering law relating to arbitration on the basis of equity and good conscience is ruled out. We agree with the learned Judge. There cannot indeed be any conferment oi the juri diction on the arbitrator by consent of the pirties, express or implied

The answer to the first question, therefore, is in the negative and to the effect that a party to an arbitration agreement is not estopped from raising an objection as to the validity of the award on the ground of its having been made after the expiry of the period of four months as fixed by Rule 3 Schedule 1 of the Act,or extended from time to time by the Court b cause of the objector having participated in the pro-ceedings before the arbitator and raised no such objection there. It depends upon facts and circumstances of each case and the Court has to decide in the exercise of a sound judicial discretion vested in it by section 28(2) of the Act, whether to enlarge the time for making the award alter the same had been made beyond time. In the exercise of such discretion it can legitimately take into consideration the conduct of the parties who participated in the proceedings before the arbitrator without an objection, There may be cases where the party not objecting before the arbitrator can satisfy the Court that there were good reasons for not objecting or that in spite of his conduct it is a fit case for setting aside the award

As regarads the second question, the answer follows as a corollary to the one given above and must similarly be answered in the negative. Turn the mere fact that a Court has dismissed an objection about the invalidity of the award on the ground of its not having been made in time it does not follow that the time for making the award must be deemed to have been extended u/s 28(2) of the Act. The matter of extension of time has to be decided by the exercise of sound judicial discretion after giving a proper opportunity to the parties to give explanation and satisfy the Court, by evidence or otherwise, as to the circumstances which led to the delay and enable it to decide as to whether it was a fit case where the delay be condoned and the time for making the award enlarged

There is no other point to be decided in this appeal which, in view of our answers to the questions of law referred to above, must be allowed, and the order of the Senior Subordinate Judge set aside. The trial Court is directed to dispose of the case in the light of the observations made above. There is no order as to costs in this Court.