I.D. Dua and M.M Ismail, JJ.
(1) This is an appeal by the Plaintiff against the Order of a Sub-Judge, 1st Class, Delhi, dated 30th July, 1957 rejecting the plaint in suit No. 92/91 of 1955/57 under Order 7, Rule 11 of the Code of Civil Procedure.
(2) The Plaintiff filed the present suit for the recovery of bs. 34,000.00 with future interest at 6 % per annum, compound interest with halt yearly rests, from the date of suit till realisation. To this suit, one firm M/s. Ganesh Das R. B. Kidar Nath, which carried business as Mil! owners, Contracttos etc. at Lahore, Gujrat etc. in West Punjab and now carries on business at Ambala, Bombay, Delhi and toher places in India (service to be etjected through defendants 2 to , proprietors/partners thereof) was the first defendant. The case of the plaintiff was that commencing from 10th February 1945, the defendant No. 1 firm belonging to the joint Hindu family comprising of defendants Nos. 2-5 and their eldest brtoher Kanwar Raj Nath had an overdraft/ cash credit account with plaintiff's Lahore Branch, its over draft/cash credit limit being Rs. 30,000.00; on the 10th February 1915, at the commencement of the above over draft/cash credit account, defendant No. 1 film through Kanwar Raj Nath, Karta thereof, duly executed a Demand Promissory Ntoe for Rs. 30,000.00 agreeing to pay the said sum to the plaintiff (its Lahore Branch) on demand with interest and the prontoe was deliverd to the said Branch as a collateral security for repayment of ultimate balance, which may remain due in the said overdraft/cash credit account; that the said overdraft/cash credit account in plaintiff's Lahore Branch was operated upon by the said firm defendant No. 1 and its Proprietors/partners viz. defendants No. 2-5 and the said Kanwar Raj Nath from the commencement of the account on 10th February, 1945, till about the period of partition of the country in August 1947, when the Plaintiff's said Branch fell in the area included in Pakistan and defendants became evacuees from such aroa; that on 1st April, 1948, the balance due from defendants in the said account including the interest and incidental charges till that date amounted to Rs. 27,O31/4.00; on 1st April, 1948, at the request of the defendants, the said amount was transferred from plaintiff's Lahore Branch's Evacuee Books to the Books of plaintiff's Delhi Branch and converted into Bare Loan account, the defendants, through Shri Kanwar Raj Nath 'Karta' thereof duly confirmed the above balance of Rs. 27,031/14.00 by duly stamped acknowledgement in writing dated the 1st April, 1948 and in renewal and supersession of the earlier prontoe dated the 10th February, 1945, executed a new prontoe for Rs. 27,000.00. agreeing to pay this amount, to the Plaintiff, on demand, with interest at the same rate and the balance due in excess of the value of prontoe, i. e. Rs. 31/4.00 was paid by the defendants in cash on 2nd April, 1918, leaving balance outstanding at Rs. 27,000.00 in accordance with the prontoe; that the balance outstanding against the defendants on 19th January 1951 including further interest and incidental charges and adjusting a repayment of Rs. 2,000.00 in the account was Rs. 29,649/4.00 besides interest from 1st January 1951; on 30th January 1951 the defendants, through said Kanwar Raj Nath, 'karta' by menas of a duly stamped acknowledgment confirmed the said balance, and in renewal and supersession of previous pronuta dated 1st April, 1948 executed a new prontoe dated 30th January 1951, in favor of the plaintiff, agreeing to pay Rs. 30,000.00 to plaintiff, on demand with interest; that, out of the amount due on the basis of said account and prontoe dated the 30th January, 1951, the defendants through defendant No.2 Kanwar Amrit Lal, made a repayment of Rs. 5000.00 only on 9th December 1952 by means of a Pay-in-slip dated same; but inspire of numerous verbal and written demands and ntoices, the defendants have failed to make any further payment. According to the plaintiffs, the amount due to it inclusive of interest and incidental charges up to the end of October 1955, came to Rs. 33,850/11/4. and adding interest for November 1955, the amount exceeded Rs. 34.000.00. but the plaintiff claimed recovery of Rs. 34.000.00 only with future interest till realisation at 6% per annum compound interest with half yearly rests.
(3) As to why the plaintiff had imp leaded the firm M/S Ganesh Das R. B. Kidar Nath and the 4 toher persons as defendant to that suit can be stated in the words of the plaint itself as contained in paragraphs 2 and 10 of the plaint:
'2.that defendant No. 1 has been and continues to be a Joint Hindu Family firm. The defendants 2-5 as well as their eldest brtoher Kanwar Raj Nath have been and are members of the Joint Hindu Family with said Kanwar Raj Nath as 'karta' thereof. They have been and are praprietors/partners of the defendant No. 1 firm, The defendants 2.5 as well as their said brtoher Kanwar Raj Nath have been and are managing and participating in the affairs of the assets of the Joint Hindu Family. The defendants 2.5, as well as said Kanwar Raj Nath are, as such jointly and severally responsible, alung with defendant No. 1 in respect of all the dealings or transactions by and on behalf of the said firm defendant No. 1'.
'10.that, the plaintiff, has, thereforee, cause of action and right to sue against the defendants and also against said Kanwar Raj Nath for recovery of Rs. 34.000.00 and future interest from date of suit till realisation at 6% per annum compound interest with half yearly rests. But Kanwar Raj Nath, has made an application under Section a, and has, thereforee, nto been imp leaded as a defendant'.
The defendants 2.5 filed separate written statements, though more or less taking the same plea. They pat forward the contention that there was no Joint Hindu Family film as alleged by the plaintiff, Kanwar, Raj Nath was nto the 'karta' of the alleged Joint Hindu Family and he did nto act on behalf of any such alleged Joint Hindu Family, and he was carrying on his personal business and defendants 2.5 herein were nto liable to the plaintiff in any amount and to any extent. They further put forward the plea that Kanwar Raj Nath as mentioned in paragraph 10 of the plaint itself, made an application under Section 5 of Displaced Persons (Debts Adjustment) Act Lxx of 1951 (to be referred to as 'the Act' in the rest of this judgment) before the Tribunal at Ambala and the plaintiff had nto deliberately mentioned the fact that on its own objection, the Tribunal at Ambala also imp leaded the defendants as respondents to that petition as proper party and as such, in law, the present suit was barred or at any rate, it had to be stayed. They also put forward the contention that on the basis of averments contained in the plaint itself, Kanwar Raj Nath was a necessary party to the suit and the suit cannto be proceeded within his absence.
(4) In view of the above pleadings, the lower court framed three preliminary issues and on the basis of the findings on the said preliminary issues, passed the order which is the subject-matter of the present appeal. The three preliminary issues were :-
1. Whether Kanwar Raj Nath is a necessary or a proper party to the suit and to what effect? 2. Whether the proceedings in this suit are liable to be stayed as pleaded in the written statement? 3. Whether suit it is nto maintainable as pleaded in the written statement?
The trial court held that Kanwar Raj Nath was nto a necessary party to the suit and the suit itself was nto liable to be stayed under Section 15 of the Act, With reference to the third issue, the low-r cou;t observed that Kanwar Raj Nath had included the present debt in his application under Section 5 of the Act before the Tribunal at Ambala and on the application of the present plainliff, the toher defendants to the suit, had been imp leaded as parties to the application pending before the Tribunal and the questions relating to the existence of the debt and the liability thereforee and the apportionment thereof, it is a joint debt, can be raised before the Tribunal and the Tribunal is competent to determine such questions and thereforee, in the opinion of the trial court, the matter should be decided by the Tribunal, and consequently, it held that the suit was nto maintainable. It is under these circumstances the matter has come before us. The principal contention of the learned counsel for the appeliant is that the trial court erred in holding that the suit is nto maintainable under section 15(c) of the Act, which alone bars the suit and the said provisions does nto apply to the present case. On the toher hand, the learned counsel for the respondent contended that the said provision applies to the facts of the case and consequently, the suit is nto maintainable.
(5) Before we deal with the rival contentions put forward before us, it is desirable to take a general view of the scheme of the Act. The object of the Act, is, as its preamble itself indicates, to make certain provisions for the adjustment and.settlement of debts due by displaced persons, for the recovery of certain debts due to them and matters conneeted therewith or incidental thereto. The Act has made elaborate provisions for relief of the indebtedness of the displaced persons, consistently with the needs of their rehabilitation. It has has purported to make provisions for regulating the payment of all pre-migration pecuniary liabilities of a displaced person to his 'paying capacity' and to the compensation which might be received by him in respect of his immoveable property, left behind in West Pakistan, and in this context it has made provisions for prtoecting him from being harassed by his creditors in Civil Courts. Bearng ing this basic object of the Act in view, it may be necessary to mention certain provisions of the Act which have been referred to us in relation to the controversy in the appeal. Section 5(1) of the Act provides that .
'ATany time within one year after the date on which this Act comes into force in any local area, a displaced debtor may make an application for the adjustment of his debts to the Tribunal within the local limits of whose jurisdiction he actually and voluntarily resides, or carries on business or personally works for gain'.
Sub section (2) thereof provides that every application by a displaced debtor shall among tohers, be accompanied by a schedule containing full particulars of all his debts, whether owned jointly or individually, with the names and addresses of his creditors and joint-debtors, if any, so far as they are known to, or can by the exercise of reasonable care and diligence be ascertained by him, and a schedule of all his properties, buth movable and immoveable including the payments due to him. Sub-Section (3) provides :-
'ALLpersons whose names are shown in the schedule as having claims against the displaced debtor and all persons whose names are shown as joint debtors shall be deemed to be the respondents to the application...,,...'
Section 9 of the Act provides-
'ITthere is a dispute as to whether the applicant is a displaced person or nto or as to the existence or the amount of the debt due to anv credit or the assets of any displaced debtors, the Tribunal shall decide the matter after taking such evidence as may be adduced by all the parties concerned and shall pass such decree in relation thereto as it thinks fit.'
Section 15 of the Act provides -
'WHEREa displaced debtor has made an application to the Tribunal under section 5 or under sub-section (2) of section 11, the following consequences shall ensue, namely:- (a) all proceedings pending at the date of the said application in any Civil court in respect of any debt to which the displaced debt is subject (except proceedings by way of appeal or review or revision against decrees or orders passed against the displaced debtor) shall be stayed, and the records of all such proceedings toher than those relating to the appeals, reviews or revisions shall be transferred to the Tribunal and consolidated; (c) No fresh suit or toher proceedings (toher than any such appeal, review or revision as is referred to in clause (a) shall be instituted against a displaced debtor in respect of any debt mentioned by him in the relevant schedule to his application... .....'
Section 22 of the Act makes elaborate provision for apportionment of joint debts and states, that, where a debt is due from a displaced person joinitly with antoher person, the Tribunal shall, for the purpose of the Act, apportion the libility between them according to certain rules which are enumerated in that section, and those, which are relevant for the purpose of this appeal are contained in Section 22(d) and (e). According to section 22(d)-
'IFone joint debtor is a displaced person and antoher is nto, the Sum apportioned to the non displaced person shall nto be deemed to be a debt within the meaning of this Act and the credit may in respect of such debt seek any remedy open to him in a Civil Court or toherwise.'
Accordirig to Section 22(e) :
'If the debt was taken by a joint Hindu family, the members of the Joint Hindu family shall be deemed to be Joint debtors within the meaning of this action and the debts shall be apportioned amongst the members thereof in the same proportion in which shares would be alltoted to them in partition.'
Section 32 of the Act provides for the Tribunal determining the amount due in respect of each debt of the displaced debtor who had applied under section 5 of the Act in accordance with the provisions of the Act and also for determining the paying capacity of the debtor and makes elaborate provisions as to how the decree has to be passed.
(6) It is against the background of these provisions the arguments advanced before us have to be considered and dealt with. The contention of the learned counsel for the appellant is that for applying section 15(c) of the Act, two conditions must be satisfied, namely,
(1)that the suit must be against a displaced debtor, and (2) it must be in respeect of any debt mentioned by such displced debtor in the relevant schedule to his application under sec. 5 the Act.
In this case though the suit is in respect of a debt mentioned by Kanwar Raj Nath in his application to the Tribunal, still the suit itself is nto filed against Kanwar Raj Nath and thereforee, section 15(c) is nto applicable and the suit is nto barred by that provision. It is the admitt case of buth the parties that the amount due to the plaintiff herein has been mentioned in the schedule annexed to the application filed by Shri Kanwar Raj Nath before the Tribunal. However, in that application. Kanwar Raj Nath had referred to this liability as if it were his individual liability ; but it is the plaintiff herein who took up the objection that the debt was a Joint debt and consequently, as contemplated b section 5(2) of the Act, Shri Kanwar Raj Nath ought to have included in the schedule, the names and addresses of joint debtors and since he failed to do so, defendants 2.5 herein ought to have been imp leaded to that application as parties, as they were Joint debtors. The Tribanal has actually imp leaded the defendants 2-5 herein as parties to the application before it, on the basis of the objection of the plaintiff herein. Basing himself on these facts, the learned counsel for the respondents contended that the subject matter of the application before the Tribunal is the identical debt in the identical amount as is the subject matter of the suit and consequently, as the application is pending before the Tribunal, the present suit is barred and cannto be maintained. The learned counsel for the respondents further contends that in view of the desoription of defendant No. 1 as given by the plaintiff itself, it must be held that the suit has been filed against Kanwar Raj Nath also and because of this, Section 15(c) is attracted and the suit is nto maintainable. No doubt, because of the manner in which the defendants have been imp leaded to the suit by the plaintiff, there is some room for such a contention on the part of the respondents. Normally speaking, if a Hindu Joint Family is to be proceeded against, it is nto necessary for a plain tiff to implead all the co-partners as parties to the suit, and it is enough it be files the suit against the 'karta'. Again, normally if a plaintiff has imp leaded a joint Hindu family firm as defendant to the suit, in uppcrpliate cases, decree obtained Therein will be binding on the all partners of the family, even though they were nto made paries co-noinine In this particular case, the plaintiff has imp leaded the joint Hindn family firm as defendant Mo. 1 and four cf the five co-partners of the joint Hindu family as defendants 2-5 and in para 10 of the plaint is expressly stated that since Kanwar Raj Nath has made an application under section 5 of the Act, he has nto been imp leaded as a defer.dant. In view of this express and specific averment contained in the plaint, we are unable to accept the argument of the learned counsel for the resiondents that since the joint Hindu family firm itself has been imp leaded as defendant No. 1 to the suit, and thereforee the :-suit is against the displaced debtor ccming within the scope of Section 15(c). With the result, we have to r ceed on the basis that the suit, though in respect of a debt mentitned by Shri Kanwar Raj Nath in the relevant schedule to his application, still is nto a suit against Shri Kanwar Raj Nath thereforee, we are of the view that section 15(c) of the Act is nto attracted to the suit in question and consequently, that provision does nto bar the present suit. The learned counsel for the respondents relied upon Parkash Textiles Mills Ltd. v.M/S Mani Lal Ramchand Tillumal v. Khubchad Deswarn Iron & Hardware (India) Co. v. Firm Sham Lal and. Brtoher , Firm Jagan Nath Ram Sarup v. Firm Amir Chand Pearey Lal We are of the view that none of these decisions has any relevancy to the controversy before us. In the following question arising in an Execution First Appeal was placed before a Full Bench of the Punjab High Court :-
'WHETHERwhen there is an application by a person claiming to be displaced debtor either Under Section 5 or under section 11(2) of Act 70 of 1951 pending before a Tribunal constituted urder the Act the status of the said person can only be detemined by the Tribunal or can the matter be placed in issue and decided by an ordinaiy civil court in which proceedings are pending to which he is a party ?
The Full Bench, by a majority, answered the question by saying that the status of the person who has filed an application under section 5 or ll (2) of the Act claiming to be a displaced person can be decided only by the Tribunal constituted by the Act and nto by the Civil Court. In our opinion, this conclusion flows from section 9 of the Act itself and the reported decision did nto deal with, and had no occassion to deal with a question like the one before us where a suit has been filed on the basis that the debt is a joint debt and the plaintiff seeks to obtain relief against persons toher than the one who has fled an application under section 5 of the Act.
(7) In 1954 B. L.R. 828, the appellant field an application under section 5 of the Act before the Tribunal constituted under the Act. The Tribural held that the application was nto maintainable in as much as the debts covered by the application were incuired in India and such debts were nto covered by section 2(6) Of the Act. It is against this decision of the Tribunal, the appeal was preferred to the Bombay High Court and it came to the conclusion that a displaced debtor can apply under section 5 only if a debt which he seeks to be adjusted satisfies the requirements of section 2(6)(a) or 2(6)(b) of the Act, and we are of the view that this decision of the Bombay High Court has absolutely no bearing on the controversy before us. In : AIR1954Bom423 , applications were made by creditors alleging that they were displaced persons within the meaning of the Act 70 of 1951 for damages for breach of contract and one of the questions that came up for consideration was:-
'WHETHERthe partners of a firm who are themselves displaced persons can maintain an application under Section 13 of the Act or nto ?'
The Bombay High Court held that a firm is merely a compendious way of describing certain number of persons who carry on business as partners in particular name, but in law and in the eye of the law, the firm really consists of the individual partners who go to constitute that firm and thereforee, if the individual partners of a firm satisfy the definition of 'displaced person' given in the Art, there is no reason why an application by a firm under Section 13 cannto be maintained as the persons before the Tribunal are the individual partners of the firm and nto a legal entity consisting of the firm. We fail to see how this decision helps the respondents in this case.
(8) In 1958 P.L. R 52, when the suit was pending, one of the partners of the defendant firm made an application under section 5 of the Displaced Persons (Debts Adjustment) Act, for the adjustment of debts and the schedule which was attached, to this application contained the names of the various creditors of the applicant but did nto contain the name of the plaintiff to the suit. The suit was sought to be stayed, but the court in which the plaintiff's suit was pending rejected the application for stay on the ground that the debt' due to the plaintiff was nut mentioned in the schedule attached to the application made under section 5 of the Act. It is against this order, arevision petition was preferred to the Punjab High Court and the learned Chief Justice held that he was inclined to hold that the language of section 15 must be construed to mean, what it says, namely that all proceedings pending on the relevant date in any civil court in respect of any debt to which the displaced debtor is subject, shall be stayed and nto only the proceedings in respect of debts which are specifically mentioned in the schedule attached to the application under section 5. It is nto necessary for as to state here whether we agree with this view or nto, but it is enough to point out that this decision also has ntohing whatever to do with the question before as. We asked the learned counsel appearing on buth the sides to inform as whether there is any decision concerning a question like this, where a suit has been filed on the basis of the debt being a joint debt and impleading only such of the joint debtors as have nto filed an application under section 5 of the Act, and the learned counsel conceded that they have nto been able to lay their hands on any such decision of any court.
(9) Since we have held that section 15(c) in terms does nto apply to the suit in question and, thereforee, does nto bar the suit, the questio that arises for consideration is whether the plaintiff on the basis of its own averments in the plaint can proceed with the suit As pointed out already, the plaintiff's contention is that the debt is a joint debt payable by all the members of the Joint Hindu family, but the suit was filed against the junior members of the family, leaving the karta, on the ground that the karta could nto be imp leaded as a defendant to the suit, since the karta had filed an application under section 5 of the Act. Defendants 2-5 in the suit have denied their liability to the plaintiff and had said that, if at all it was the personal and exclusive liability of Kanwar Raj Nath as pointed out already, in the application before the Tribunal under section 5 of the Act Kanwar Raj Nath proceeded as if the debt was his individual debt and it was the plaintiff-appellant herein who took up the stand that the debt was a joint debt and censequently. the defendants 2-5 herein also should be made parties. thereforee, the question that arises buth in the application before the Tribunal as well as in the suit is whether the debt in question is the sole and personal debt of Kanwar Raj Nath or is it a joint debt due by Kanwar Raj Nath and the defendants 2-5 herein. If this question is decided buth by the Tribunal and the Civil court in the suit, there is a possibility of conflicting decisions being given. Further, suppose the Tribunal comes to the conclusion that the debt is an individual debt of Kanwar Raj Nath. Then the entire debt is liable to be dealt with under the provisions of Act 70 of 1951. On the toher hand, if the Tribunal comes to the conclusion that the debt is a joint debt, then as provided for in section 22, the Tribunal is under an obligation to apportion the debt as between the displaced debtor and the toher debtors and as contemplated by section 22(d) of the Act, with reference to the debt apportioned to the nondisplaced debtors, the creditor will have his normal remedy. Thus the question whether the debt is the sole and the exclusive debt of Kanwar Raj Nath or it is a joint debt and if it is a joint debt, what is the portion of liability to be borne by Kanwar Raj Nath, who alone has filed the application before the Tribunal, are matters within the competence of the said tribunal. Consequently these questions cannto be canvassed in parallel proceedings, particularly when Kanwar Raj Nath is nto a party to the suit, while all the persons concerned or interested are parties in the application before the Tribunal. thereforee, we are of the view that during the pendency of the application before the Tribunal in the present case, the present suit cannto be proceeded with. We may also point out here that such a conclusion will nto cause any injustice or hardship to the plaintiff herein. As pointed oat already, before the Tribunal, the plaintiff and the defendants 4-5 herein and Kanwar Raj Nath are parties, and thereforee, the question regading the nature of the debt whether it is a joint debt or nto, and the apportionment of it, in case it is a joint debt, will be made by the Tribunal in the presence of all the parties, and if any of the parties is dls-satisfied with reference to the same, he has gto a right of appeal to the High Court under section 40 of the Act. We are fortified in this conclusion antoher consideration as well. Though section 22(d) of the Act provides that if one joint debtor is a displaced person and antoher is nto, the sum apportioned to the nondisplaced persons shall nto be deemed to be a debt within the meaning of the Act and the creditor may in respect of such debt seek any remedy open to him in a Civil court or toherwise. If it is held that even a suit like the present one is barred the question of limitation may adversely affect such a credit. No provision in the Act or any toher law for excluding the period during which the proceedings are pending before the Tribunal from the period of limitation for recovery of that portion of the debt apportioned to the non displaced debtors, has been brought to our ntoice. This is antoher circumstance that will go to support or conclusion that such a suit is nto barred by section 15(c) of the Act. At the same time for the reason indicated by us already, such a suit cannto also be proceeded with during the pendency of the application before the Tribunal. Though the present suit does nto fall within the scope of section 15(a) of the Act, since the suit was filed admittedly after the filing of the application by Kanwar Raj Nath under Section 5 of the Act and consequently cannto be stayed under section 15(a) of the Act, still we are of the view that under such circumstances the Cout has gto an inherent power to stay the trial of the suit so that the suit can be proceeded with after the Tribunal has determined the question as to the debt being anoint debt or nto in case it is decided that it was a joint debt what was the portion to be apportioned to non-displaced persons.
(10) Though issue No. 2 tried by the trial court related to the staying of the suit and the court has held that neither under section 15(c) of the Act. nor under section 10 of the Civil Procedure Code, the suit was liable to be stayed, the trial court did nto consider the question whether it could be stayed by virtue of insherent powers in view of the circumstances mentioned by us. We consider that the suit should be stayed during the pendency of the application before the Tribunal for the reasons mentioned by us There have been numerous cases in the various High Courts of the country where such an inherent power has been exercised; for instance there have been cases where during the pendency of the application for fixation of fair rent before the Tribunals constituted under special enactment, the suit for recovery of rent has been stayed. So also in Syed Abdul Alim Abed v. Baiarmidin Ahmed, there were proceedings before a Special Tribunal for apportionment of compensation payable in a land acquisition case where the rights of the persons claiming a share in the compensation had to be determined and also where in the testamentary jurisdiction of the High Court, the validity of a will under which one of the parsons claimed, a share of the compensation was pending and a Bench of the Calcutta High Court held that the Court had an inherent power to postpone the hearing of the suit pending the decision of a select action and to make an order for the stay of cross-suits on the ground of convenience and consequently, it stayed the proceedings in the testamentary jurisdiction of the High Court. thereforee, we set aside the order of the trial court rejecting the plaint and remand the suit to the trial court with a direction that it should he kept pending for a period of six months to await the result of the application pending before the Tribunal Under Act 70 of 1951 and in case no order of the Tribunal is produced by that time, tu proceed with the suit on merits. We are making this order for the reason that the present suit was instituted in 5th December, 1955 and the order of the to wer court was passed on 30th Ju]y,1957,and we heard the appeal in March 1967 and the application under section 5 of the Act must have been filed much earlier to the institution of the suit. Even though more than 10 year have elapsed between the institution of the present suit and our hearing the appeal, when we asked the learned counsel appearing on buth the sides whether they knaw anything as to what happened to the matter pending before the Tribunal, they were nto able to say anything definite in this behalf. The matter before the Tribunal might have been pending or might have been disposed of or might have been dropped because of none of the parties taking interest in it In the circumstances, it will nto be fair to the plaintiff to have its suit kept pending indefinitely and that is why we are making the present order.
(11) We have disposed of this appeal only on the grounds on which the trial court disposed of the suit and we are nto expressing any opinion as to whether independent of the provisions contained in Act 70 of 1951, the suit as framed is maintainable or nto for toher reasons, nor are we expressing any opinion with reference to any toher matter in controversy between the parties. Since we are remanding the matter. the court fee paid by the appellant will be refunded to it and we are nto making any order as to costs in the appeal.