SUPREME COURT OF INDIA
Narayan Chandra Ghosh
Vs
Kanailal Ghosh
Appeal (Civil) 7091 of 2001; Civil Appeal No. 7092 of 2001
(B.N.Agarwal and A.K.Mathur)
16/11/2005
B. N. AGARWAL, J.
These appeals by the defendants arise out of common judgment rendered by the
High Court in second appeals.
The short facts are that the plaintiffs filed two suits, viz., Title Suit Nos.
125 of 1978 and 146 of 1977 for eviction of defendants. Both the suits relate
to eviction of defendants from different portions of a house. The former suit
related to eviction from three rooms and the latter from one room. In both the
suits, the plaintiffs were thika tenants whereas defendants were Bharatias. The
grounds for eviction disclosed in the suits were default, causing nuisance by
the defendants and bona fide need of the plaintiffs for the premises in
question as number of their family members had substantially increased. When
the suits were filed, The Calcutta Thika Tenancy Act, 1949 (hereinafter
referred to as 'the 1949 Act') was in force. During the pendency of the
aforesaid suits, The Calcutta Thika Tenancy (Acquisition and Regulation) Act,
1981 (hereinafter referred to as 'the 1981 Act') was promulgated and as, according
to the plaintiffs, the said suits abated under Section 19 of the 1981 Act, the
plaintiffs filed another suits giving rise to Title Suit Nos. 35 of 1983 and 22
of 1983 for eviction of defendants from the aforesaid four rooms stating
therein the same grounds for eviction.
Defendants contested the claim for eviction on grounds, inter alia, that the
subsequent suits were not maintainable as earlier suits did not abate under
Section 19 of the 1981 Act. They denied all the grounds for eviction.
In support of their respective cases, both the parties led oral and documentary
evidence and upon conclusion of trial, the learned Munsiff held that the suits
were maintainable as the earlier suits abated under Section 19 of the 1981 Act.
So far as the grounds for eviction are concerned, the trial court decreed the
suits only on the ground of bona fide necessity as, in its opinion, the
plaintiffs failed to prove the other grounds. Challenging the decrees of the
trial court, when appeals were preferred, the lower appellate court upheld the
decree for eviction in relation to three rooms but reversed the same in
relation to one room and thereby dismissed suit for eviction in relation to the
same. Against the aforesaid decision, two appeals were preferred before the High
Court, one by the plaintiffs and other by the defendants. High Court upheld
decision of the lower appellate court affirming eviction decree in relation to
three rooms. So far as decree of the lower appellate court dismissing the
eviction suit in relation to one room is concerned, the same has been reversed
and the decree for eviction in relation to same passed by the trial court has
been restored. Hence, these appeals by special leave.
Mr. Bhaskar Prasad Gupta, learned Senior Counsel appearing in support of the
appeals raised various points but for the disposal of the appeals, only two
points are relevant. Firstly, it has been submitted that earlier two suits
filed by the plaintiffs did not abate under Section 19 of the 1981 Act, as such
both the suits were liable to be dismissed on the ground that the same were not
maintainable. Secondly, it has been submitted that the High Court was not
justified in interfering with the finding of fact in relation to one room in a
second appeal. On the other hand, Mr. S.B.Sanyal and Mr. Vijay Hansaria,
learned Senior Counsel appearing for the respondents in their respective
appeals, submitted that present suits were maintainable as earlier two suits
abated under Section 19 of the 1981 Act. Mr. Vijay Hansaria, appearing in
support of the judgment of the High Court in relation to one room, submitted
that the High Court was quite justified in reversing judgment rendered by lower
appellate court and confirming the decree for eviction passed by the trial
court.
Thus, the main question to be considered in the present appeals is as to
whether the earlier suits abated under Section 19 of the 1981 Act? In this
regard, it would be necessary to refer to the history of the legislation. The
1949 Act was enacted for making better provision relating to the law of
landlord and tenant in respect of thika tenancies in Calcutta. The expression
"thika tenant" has been defined under Section 2(5) of the 1949 Act to
mean a person who holds a land under a lease or otherwise under another person on
payment of rent and has erected structure thereon or acquired by purchase or
gift any structure on such land for residential, manufacturing or business
purpose. The expression "Bharatia" has been defined under Section
2(1) of the 1949 Act to mean any person by whom, or on whose account, rent is
payable for any structure or part of a structure erected by a thika tenant in
his holding. Under Section 3 of 1949 Act, three grounds for eviction of Thika
tenant have been enumerated, namely, (I) using the holding in such a manner so
as to render it unfit; (II) bona fide necessity of the landlord for the
holding; and (III) in a case of lease, other than for residential purpose,
expiry of the period of lease. Under Section 5 of the 1949 Act, procedure has
been provided for eviction of thika tenant by the landlord by filing an
application for ejectment before Controller appointed by the State Government
as defined under Section 2(2) of the 1949 Act. At this stage, it would be
useful to refer to the provisions of Sections 2(1), 2(2), 2(5), 3 and 5 of the
1949 Act which read thus:
"2(1) "Bharatia" means any person by whom, or on whose
account, rent is payable for any structure or part of a structure erected by a
Thika tenant in his holding.
2(2) "Controller" means an officer appointed as such by the State
Government for an area to which this Act extends and includes any officer
appointed by the State Government to perform all or any of the duties imposed
or to exercise all or any of the powers conferred by this Act, on the
Controller.
2(5) "thika tenant" means any person who holds, whether under a
written lease or otherwise, land under another person, and is or but for a
special contract would be liable to pay rent, at a monthly or at any other
periodical rate, for that land to that another person and has erected or
acquired by purchase or gift any structure on such land for a residential,
manufacturing or business purpose and includes the successors in interest of
such person, but does not include a person
(a) who holds such land under that another person in perpetuity; or
(b) who holds such land under that another person under a registered lease, in
which the duration of the lease is expressly stated to be for a period of not
less than twelve years; or
(c) who holds such land under that another person and uses or occupies such
land as a khattal.
3. Grounds on which a thika tenant may be ejected.
(1) Notwithstanding anything contained in any other law for the time being in force
or in any contract, a thika tenant shall, subject to the other provisions of
this Act, be liable to ejectment from his holding on one or more of the
following grounds and not otherwise, namely:-
(i) on the ground that he has used the land comprised in his holding in a
manner which renders it unfit for any of the purposes mentioned in clause (5)
of section 2;
(ii) except during any period limited by a registered lease under which a thika
tenant may hold the land comprised in the holding and subject to the provisions
of sub- sections (2), (3) and (4), on the ground that the land is required by
the landlord for his own occupation;
(iii) when he holds the land comprised in the holding under a registered lease
for a purpose other than a residential purpose, on the ground that the term of
the lease has expired.
(2) No landlord shall be deemed to require the land comprised in the thika
tenant's holding for his own occupation if he has a house of his own in the
city in which such land is situated and the accommodation available in such
house is, in the opinion of the Controller, reasonably sufficient for him and
his family.
(3) Where the landlord requires the land comprised in the thika tenant's
holding for his own occupation and the Controller is of opinion that such
requirement may be substantially satisfied by ejecting the thika tenant from a
part only of his holding and allowing him to continue in occupation of the
rest, then, if the thika tenant agrees to such occupation, the Controller shall
make an order accordingly and fix the proportionate rent for the portion
remaining in the occupation of the thika tenant.
(4) Where the thika tenant has erected or acquired a pucca structure for a
residential purpose on the land comprised in his holding, no order for
ejectment shall be made against him except in respect of such part, if any, of
such land as does not appertain to the pucca structure.
5. Proceedings for ejectment. (1) Notwithstanding anything contained in any
other law for the time being in force a landlord wishing to eject a thika
tenant on one or more of the grounds specified in section 3 shall apply in the
prescribed manner to the Controller for an order in that behalf and, on receipt
of such application, the Controller shall, after giving the thika tenant a
notice to show cause within thirty days from the date of service of the notice
why the application shall not be allowed and after making an inquiry in the
prescribed manner either allow the application or reject it after recording the
reasons for making such order, and, if he allows the application, shall make an
order directing the thika tenant to vacate the holding and, subject to the
provisions of section 10, to put the landlord in possession thereof.
(2) No order allowing an application under sub-section (1) shall be made in a
case where compensation is payable under the proviso to section 4 unless and
until the amount of compensation so payable has been either paid to the thika
tenant or deposited with the Controller." *
It may be also useful to refer to the provisions of Sections 10 and 10A of the
1949 Act which read thus:
"10. Consequences of the determination of interests of thika tenants in
certain cases. (1) Notwithstanding anything to the contrary contained in any
contract, on the determination of the interest of a thika tenant in the land
comprised in a holding as a result of ejectment from the holding of, or of
surrender or abandonment of the holding by, the Thika tenant, or otherwise, any
structure standing upon such land and existing on the date of such
determination shall vest in the landlord.
(2) When any structure standing on any holding of a Thika tenant vests in the
landlord under sub-section (1) otherwise than as a result of ejectment of the
Thika tenant from the holding on the ground specified in clause (ii) of
sub-section (1) of section 3, any Bharatia in possession of such structure or
any part thereof, shall without any application being made be entitled to
continue in such possession and shall be deemed to be a tenant in respect of
such structure or part thereof, as the case may be, within the meaning of the
West Bengal Premises Tenancy Act, 1956, holding under the landlord on the terms
and conditions on which such Bharatia had been holding immediately before such
structure vested in the landlord:
Provided that nothing in this sub-section shall prevent either the landlord or
such Bharatia so deemed to be a tenant holding under the landlord, from
proceeding under the West Bengal Premises Tenancy Act, 1956, for fixing the standard
rent payable in respect of such structure or part thereof, as the case may be.
10A. Right of thika tenant to erect pucca structures. (1) Notwithstanding
anything contained in any other law for the time being in force or in any
contract, but subject to the provisions of sub-sections (2) and (3), a thika
tenant using the land comprised in his holding for a residential purpose may
erect a pucca structure on such land for such purpose with the previous
permission of the Controller.
(2) On an application made by a thika tenant in this behalf, the Controller may
grant him permission to erect a pucca structure, if the Controller is satisfied
that the thika tenant
(a) is using the structure existing on the land comprised in his holding for a
residential purpose,
(b) intends to use the pucca structure to be erected on such land for a similar
purpose, and
(c) has obtained sanction of a building plan to erect the pucca structure from
the municipal authorities of the area in which such land is situated.
(3) No thika tenant shall be entitled to eject a Bharatia from the structure or
part thereof in the possession of the Bharatia for the purpose of erecting a
pucca structure :
Provided that the thika tenant may by providing temporary alternative
accommodation to a Bharatia obtain from him vacant possession of the structure
in his possession on condition that immediately on the completion of the
construction of the pucca structure the thika tenant shall offer the Bharatia
accommodation in the pucca structure at a rent which shall in no case exceed by
more than twenty-five per centum the rent which the Bharatia was previously
paying." *
Section 10(1) of the 1949 Act lays down that upon ejectment of a thika tenant,
his interest in the holding shall be determined and the structures standing
thereon shall vest in the landlord. Sub-section (2) of Section 10 of the 1949
Act lays down that in case the order of eviction is on grounds (i) and (iii) of
Section 3(1) of 1949 Act, in that eventuality, the Bharatia who is in
possession of the structure shall be entitled to continue in such possession
and shall be deemed to be a tenant in respect of such structures within the
meaning of the West Bengal Premises Tenancy Act, 1956 ( in short 'the Premises
Tenancy Act') in which he is residing and shall be holding the same under the
landlord on the terms and conditions on which such Bharatia had been holding
immediately before the structures vested in the landlord. Under proviso to
Section 10(2) of the 1949 Act, the landlord or the Bharatia would be entitled
to make an application for fixation of standard rent in respect of such
structure under the provisions of the Premises Tenancy Act and to that extent
only the provisions of the said Act were made applicable. According to sub- section
(3) of Section 10A of the 1949 Act no thika tenant shall be entitled to eject a
Bharatia from the structure for the purpose of erecting a pucca structure but
in case he intends to erect pucca structure, in the premises in which a
Bharatia is residing, he is required to provide temporary alternative
accommodation to the Bharatia before obtaining possession for the purposes of
putting pucca structure thereon and after completion thereof, such Bharatia
shall be entitled to be put in possession of the pucca structure on payment of
rent which shall in no case exceed more than 25% of the rent which the Bharatia
was previously paying.
From the aforesaid provisions, it becomes plain that under the 1949 Act,
procedure was specifically provided for ejectment of a thika tenant by making
an application for ejectment before the Controller but not for ejectment of a
Bharatia by a thika tenant. For ejectment of a Bharatia, only a suit for
ejectment could be filed by a thika tenant before a Civil Court in case, he wanted
to evict a Bharatia. As Legislature of the State of West Bengal was
contemplating legislation providing therein for the acquisition of interest of
landlords in respect of lands comprised in thika tenancy and certain other
tenancies, pending its enactment, a further legislation was enacted which was
named The Calcutta Thika Tenancy Stay of Proceedings (Temporary Provisions)
Act, 1978 (hereinafter referred to as 'the 1978 Act') which came into force on
19th July, 1978 and continued to remain in force for a period of three years
and six months from the date of its commencement. This legislation was enacted
to provide for temporary stay of proceedings for ejectment of thika tenants and
Bharatias holding under thika tenants. It would be necessary to refer to the
provisions of Sections 3, 4 and 5 of the 1978 Act which read thus:-
"3. Stay of proceedings for ejectment of Thika tenants. -
Notwithstanding anything contained in the Calcutta Thika Tenancy Act, 1949, or
in any other law for the time being in force, -
(a) all applications for ejectment of Thika tenants,
(b) all appeals from orders made on such applications, and
(c) all proceedings in execution of orders for ejectment of Thika tenants.
under the provisions of the Calcutta Thika Tenancy Act, 1949, which are pending
at the date of commencement of this Act or which may be made, preferred or
commenced after such date but before the expiry of this Act, in respect of any
land which is not a 'vacant land' within the meaning of the Urban Land (Ceiling
and Regulation) Act, 1976, shall be stayed for the period during which this Act
continues in force.
4. Stay of suits and proceedings against Bharatias. No thika tenant shall,
while this Act continues in force, commence, or continue with, any suit, appeal
or proceedings in execution of orders, for ejectment of any Bharatia and all
pending suits, appeals or proceedings in execution of orders, for ejectment of
a Bharatia shall remain stayed.
5. Saving of limitation. In computing the period of limitation prescribed by
any law for the time being in force for an application for the ejectment of a
thika tenant or for such a suit against a Bharatia or for an appeal from an
order or decree made on such application or suit or for the execution of an
order or decree for ejectment of a Thika tenant or a Bharatia, as the case may
be, the period during which this Act continues in force shall be excluded.*
Under Section 3 of the 1978 Act, all proceedings for ejectment of thika tenant initiated
under the 1949 Act, irrespective of its stage, meaning thereby whether it was
pending before the original authority or in appeal or in execution, were
required to be stayed during the period of enforcement of the 1978 Act and no
further proceeding could be initiated after its commencement. Under Section 4
of the 1978 Act a thika tenant was injuncted to commence any proceeding or
continue such proceeding for ejectment of any Bharatia and all such proceedings
if commenced stood stayed. Section 5 of the 1978 Act provided that in computing
the period of limitation for making an application for ejectment of a thika
tenant or for filing a suit against a Bharatia or for filing an appeal or for
levying execution of an order or decree for ejectment of a thika tenant or a
Bharatia, as the case may be, the period during which 1978 Act continued to
remain in force had to be excluded.
Immediately after the 1978 Act expired, The Calcutta Thika Tenancy (Acquisition
and Regulation) Act, 1981 (hereinafter referred to as 'the 1981 Act') was
enacted which came into force with effect from 18th January, 1982. The said Act
was enacted for the acquisition of interests of landlords in respect of lands
comprised in thika tenancy and certain other tenancies. According to Section 5
of the 1981 Act, with effect from the date of commencement of said Act,
interest of the landlords in lands, inter alia, comprised in and appurtenant to
tenancies of thika tenants including open areas, roads, passages, tanks, pools
and drains vested in the State free from all incumbrances but the vesting did
not in any manner affect rights enjoyed by thika tenants and Bharatias. By
virtue of Section 6 of the 1981 Act, in spite of vesting, the thika tenant was
entitled to continue in occupation of the said land, on such terms and
conditions as may be prescribed, directly under the State as if the State had
been the landlord in respect of that land and he would be liable to pay land
revenue directly to the State. Under Section 7 of the 1981 Act, a thika tenant
was not entitled to let out the vacant land to anybody but could create lease
in respect of the structures. The landlords were entitled to compensation for
the lands acquired by the State of West Bengal in the manner provided under
Section 8 of the 1981 Act. Section 9 of the 1981 Act lays down that monthly and
other periodical tenancies of Bharatias in respect of structures occupied by
them on payments of rent to the thika tenants shall, with effect from the date
of coming into force of 1981 Act, i.e., 18th January, 1982, be governed by the
provisions of Premises Tenancy Act and for the said purpose, owners of the
structures shall be deemed to be landlords and Bharatias shall be deemed to be
tenants under the said Act. Section 11 of the 1981 Act lays down that tenancy
of Bharatia as a tenant under thika tenant shall not be extinguished because of
subsequent non-existence of the structure which the Bharatia previously
occupied under the thika tenant and its tenancy shall continue. According to
Section 19 of the 1981 Act, all proceedings for ejectment of thika tenants and
Bharatias shall stand abated with effect from 19th day of July, 1978 as if such
proceedings had never been made. It may be useful to refer to the provisions of
Sections 9, 11 and 19 referred to above which read thus:
"9. Thika tenants and Bharatias to be governed by West Bengal Act 12 of
1956 . (1) The monthly and other periodical tenancies of Bharatias in respect
of structures occupied by them on payment of rents to Thika tenants shall, with
effect from the date of coming into force of this Act, be governed by the
provisions of the West Bengal Premises Tenancy Act, 1956, in all matters coming
within the purview of the said Act and, for the said purpose, the owners of the
structures shall be deemed to be landlords and the Bharatias shall be deemed to
be tenants under the said Act.
(2) Notwithstanding anything contained in this Act or in the West Bengal
Premises Tenancy Act, 1956, a Bharatia under a Thika tenant shall be entitled
to take separate electrical connection from the electricity supplying agency or
separate water supply connection from the appropriate agency for his own use.
11. Tenancy of Bharatia to continue. (1) Notwithstanding anything to the
contrary contained in any other law for the time being in force, the tenancy of
a Bharatia as a tenant under a thika tenant shall not be extinguished because
of subsequent non-existence of the structure or a part thereof which the
Bharatia previously occupied under the thika tenant.
(2) If any structure or part thereof which was in the occupation of a Bharatia
as a tenant under a thika tenant ceases to exist except under an order of a
court under section 18A of the West Bengal Premises Tenancy Act, 1956, the
thika tenant shall reconstruct similar accommodation and restore possession to
the Bharatia and put the Bharatia in possession of such accommodation within
one month of such structure ceasing to exist, failing which the Bharatia may
make an application to the Controller in the prescribed manner.
(3) On an application made by the Bharatia under sub-section (2), the
Controller shall, after giving the thika tenant and the Bharatia an opportunity
of being heard, direct the thika tenant to reconstruct similar accommodation
and restore possession to the Bharatia within such time as Controller may
decide.
(4) If the thika tenant fails to comply with the orders of the Controller under
sub-section (3), the Bharatia shall be entitled to reconstruct the structure
and, for that purpose, may make an application to the Controller who shall,
after giving the Bharatia and the thika tenant an opportunity of being heard,
approve such cost of reconstruction as may appear to him to be fair and
reasonable and, after such reconstruction, allow adjustment of the cost of such
reconstruction from the rent payable by the Bharatia in such monthly
instalments as the Controller may think fit.
(5) If there is any unlawful resistance by or on behalf of the thika tenant to
the reconstruction by the Bharatia under sub-section (4), the Officer-in-charge
of the local police station shall, on receipt of any requisition of the
Controller in writing in this behalf, render all necessary and lawful
assistance to the Bharatia .
19. Proceedings including appeals and proceedings in execution of orders, etc.
to abate . All proceedings including appeals and all proceedings in execution
of orders passed in proceedings including appeals under the Calcutta Thika
Tenancy Act, 1949, pending on the 19th day of July, 1978, for the ejectment of
thika tenants and Bharatias shall stand abated with effect from the 19th day of
July, 1978, as if such proceedings, appeals or execution proceedings had never
been made." *
In view of the aforesaid provisions, now the question to be examined is as to
whether in the present case, the earlier suits for ejectment filed by the thika
tenants for ejectment of Bharatias abated under Section 19 of the 1981 Act?
Under 1949 Act, procedure was provided for ejectment of a thika tenant only and
no procedure whatsoever was prescribed for ejectment of a Bharatia by a thika
tenant. Therefore, a suit for ejectment could be filed by a thika tenant for
ejectment of a Bharatia before an ordinary civil court and such Bharatia during
the continuance of 1949 Act was not entitled to claim protection under the
Premises Tenancy Act and could be evicted upon determination of his tenancy by
giving a notice under Section 106 of the Transfer of Property Act. Under 1981
Act, it has been specifically provided that Bharatias are entitled to claim
protection of the Premises Tenancy Act meaning thereby that now they cannot be
evicted unless grounds for eviction enumerated under the Premises Tenancy Act
are proved and they cannot be ejected merely upon determining their tenancy by
giving a notice under Section 106 of the Transfer of Property Act.
Section 9 of the 1981 Act specifically lays down that from the date of coming
into force of 1981 Act, i.e., 18th January, 1982, the tenancies of Bharatias
shall be governed by the Premises Tenancy Act. On that date, both the suits
earlier filed by the thika tenants for ejectment of Bharatias were pending and
when the same were filed, it was not required of the thika tenant to prove the
grounds for eviction enumerated under the Premises Tenancy Act, but with effect
from 18th January, 1982 even in those suits a thika tenant was required to
prove grounds for ejectment under the Premises Tenancy Act in case it is held
that the same did not abate.
Learned Senior Counsel appearing on behalf of the appellants has placed
reliance upon three decisions of Calcutta High Court in the case of Ranjit
Kumar Saha v. Sudhir Kumar Dey 91 Calcutta Weekly Notes 1071 (relied), Ranjit
Kumar Saha v. Sudhir Kumar Dey 91 Calcutta Weekly Notes 1090 (relied) and Mrs.
Qaiser Jahan v. Mohammad Yawoob 1982 (2) Calcutta Law Journal 143 (relied). In
these three decisions, it has been laid down that the provisions of Section
19 of the 1981 Act shall apply only in relation to those suits for eviction
which were filed before the Controller under the provisions of 1949 Act and
were pending on the date of commencement of 1981 Act. It was further laid down
therein that the said provisions shall have no application to the suits for
ejectment filed before the civil court by a thika tenant for ejectment of a
Bharatia and pending on the date of commencement of 1981 Act. In none of these
three cases, the provisions of Sections 9 and 11 of the 1981 Act have been
considered. In case it is held that such suits would not come within the
mischief of Section 19 of the 1981 Act, the provisions of Section 9 of the 1981
Act would not apply to it although expressly Section 9 provides that from the
date of commencement of 1981 Act, i.e., 18th January, 1982, the provisions of
the Premises Tenancy Act would apply to Bharatias. Such suits cannot be
effectively disposed of after the commencement of 1981 Act as earlier it was
not necessary to prove the grounds for eviction enumerated under the Premises
Tenancy Act and the Bharatia would be thereby denied the protection granted to
him under the Premises Tenancy Act although he was entitled to such protection
even in pending suits. # This being the position, we are clearly of the
view that suits for ejectment filed by the thika tenants for ejectment of
Bharatias which were pending before a civil court abated under Section 19 of
the 1981 Act, as such High Court was quite justified in holding that the
present suits were maintainable.
Learned Senior Counsel appearing on behalf of the appellants next submitted
that the High Court was not justified in reversing the finding of fact recorded
by the lower appellate court that plaintiffs failed to prove the bona fide
necessity in relation to one room. In this regard, it may be stated that from
the judgment of the High Court, it would appear that the lower appellate court
affirmed finding of the trial court in relation to personal necessity of the
plaintiffs with regard to three rooms which finding was assailed by the
defendants before the High Court. The building is one in which eviction was
sought by the plaintiffs from four rooms and evidence is also common. While
considering correctness of finding of the lower appellate court in relation to
three rooms, High Court came to the conclusion that the plaintiffs were having
only two rooms and they required in all seven rooms, meaning thereby that they
required five more rooms and in those circumstances, it was held that the
plaintiffs succeeded in proving their case in relation to bona fide necessity
with regard to all the four rooms, including one room for which eviction was
refused by the lower appellate court. In view of the aforesaid facts, we are
not inclined to interfere with the impugned judgment rendered by the High Court
even with regard to eviction of the defendants from one room, in the exercise
of powers of this Court under Article 136 of the Constitution of India.
In the result, the appeals fail and the same are dismissed but in the
circumstances of the case, we direct that there shall be no order as to costs.