Judgement Petition by the respondent to an appeal from the High Court at Bombay for directions as to the intention and effect of an Order in Council made on January 29, 1923, in the said appeal. The facts appearing in the petition and the affidavit in support of it were shortly as follows — The appellant brought a suit in the High Court at Bombay claiming damages for failure to deliver 504 bales of dhoties under a contract for sale. The suit was tried by the Chief Justice who, before evidence as to damages had been given, held that there had been a breach as to twenty-three bales only. Thereupon a witness was called on behalf of the plaintiff as to the market price per lb. at the date of the breach, and the learned Chief Justice made a decree for Rs.2875 based upon that evidence. An appeal to the appellate jurisdiction by the plaintiff, and cross-objections by the defendant (the present petitioner) that the damages were excessive, were both dismissed. Law. Rep. 52 Ind. App. 118 ( 1924- 1925) Hurnandrai Fulchand V. Pragdas Budhsen 217 The plaintiffs appeal to the Privy Council was allowed on December 20, 1922, it being held that there was a breach as to 504 bales; the appeal is reported at L. R. 50 I. A. 9. An Order in Council was made on January 29, 1923, setting aside the decrees made in India and remitting the case to the High Court to assess the damages to which the plaintiff was entitled over and above the Rs.2875 awarded by the decree, The case was referred to Fawcett J., to whom the defendant (the present petitioner) tendered evidence as to the market price at the date of the breach with a view of showing that the failure to deliver had not resulted in any damage to the plaintiff. The learned judge rejected the evidence, and made a decree for a further Rs.60,341 damages, that sum being based upon the evidence given at the original trial as to the market value. An appeal by the defendant to the appellate jurisdiction was adjourned by the Court for six months, in order that the parties might take steps to obtain a direction from their Lordships as to whether they were to be at liberty to adduce evidence on the question of the further damages. An appeal by the defendant to the appellate jurisdiction was adjourned by the Court for six months, in order that the parties might take steps to obtain a direction from their Lordships as to whether they were to be at liberty to adduce evidence on the question of the further damages. The present petition prayed for a declaration that the report of December 20, 1922, and the Order of January 29, 1923, were not intended to, and did not, prevent the petitioner-defendant from adducing further evidence upon the question of the further amount of damages (if any) suffered by the plaintiff. 1924. Dec. 4. 8. L. Porter for the petitioner. It is within the practice of the Board to entertain a petition with a view to ascertaining the true intention and effect of an Order in Council Ex parte Yarlagadda Durga. (( 1903) L. R. 311. A. 64.) The present case is a stronger one than that cited for entertaining such a petition, as the High Court has itself shown its desire for the assistance of the Board. The Order in Council did not exclude the ordinary right of the parties to adduce evidence upon the question remitted. Having regard to the small number of bales which the trial judge held to be short delivered, the question of the market price was of little importance at the trial; the petitioner should not now be excluded from calling evidence upon that question. Clauson K.C., and E. B. Raikes for the respondent. No case has been shown for permitting the petitioner now to adduce evidence which he could have called at the trial in 1919. The intention of the Board was that the inquiry should be upon the basis of the only evidence then given. Had the petitioner desired that it should be upon a different basis he should have taken steps to raise the question before the Order in Council was made. S. L. Porter replied. The judgment of their Lordships was delivered by LORD SUMNER. In accordance with the authority of the case of Ex parte Yarlagadda Durga (( 1903) L. R. 311. A. 64.), which has been cited to their Lordships, their Lordships are willing under the particular circumstances of this case to assist the High Court in Bombay by an expression of their opinion upon the question, which appears to have been mooted before them. A. 64.), which has been cited to their Lordships, their Lordships are willing under the particular circumstances of this case to assist the High Court in Bombay by an expression of their opinion upon the question, which appears to have been mooted before them. They desire, however, to add that it is no part of the functions of their Lordships Board, generally speaking, to interpret Orders in Council which have been already made unless they are brought before them in the ordinary way upon appeal. The present Board, of course, is only able to state the intention of the opinion delivered by them, and of the Order in Council that His Majesty was then pleased to pass thereupon, by reading the language of the opinion and of the Order, and those of their Lordships who were parties to the judgment would hesitate to claim any specific recollection of the facts of the case. Law. Rep. 52 Ind. App. 118 ( 1924- 1925) Hurnandrai Fulchand V. Pragdas Budhsen 218 It does not appear to their Lordships that it was contemplated or could have been contemplated at that time, upon a question which was essentially one merely of calculating the amount of damages, that either party to a commercial dispute in Bombay would have proposed to call evidence long afterwards to contradict evidence which had been allowed to pass at the trial, when the facts were comparatively recent. This consideration and an admission of human frailty must be the Boards excuse for having failed to state more explicitly in the opinion that was arrived at what course they anticipated would be pursued in the Court of the trial judge. They may perhaps be allowed to say that they fail to see what substantial doubt could have arisen upon the question. The course which the trial judge had taken, the mode in which he assessed the damages, and his decision—whatever the grounds may be that he gave for it—not to admit any fresh evidence of the value of the goods, appear to their Lordships to have been in entire accordance with what the Board contemplated would be done upon the question, which it was necessary to remit to the Indian Court because their Lordships were not the proper tribunal to make calculations, and the parties were unable to come to an agreement. In the result therefore the answer to the petition is unfavourable to the petitioners and they will have to pay the costs of the petition.