Mani Ram v. Bhagwat Sarup — 1948 DIGILAW 65 (ALL)

JUDGMENT Malik, C.J. - This is a Letters Patent Appeal against the judgment of a learned Single Judge of this Court. 2. There was a municipal election in the Non-Muslim Ward No. 4 in the city of Bulandshahr in the year 1944. Among the several candidates for election were the plaintiff, Pandit Mani Ram and the defendant, Bhagwati Sarup. The election was held in the month of November 1944, and, on 17th November 1944, votes were counted by the Returning Officer who found that Mani Ram had secured 127 votes, while 125 votes had been cast in favour of Bhagwat Saroop. He declared that Maui Ram had been duly elected. 3. An election petition was filed under SS. 19 and 20, U.P. Municipalities Act (II [2] of 1916) challenging the election of Mani Ram on various grounds. The Additional Commissioner, Dr. S. S. Nehru, was the Election Tribunal nominated under the Act and on 21st March 1945, he gave his judgment in the election petition case. 4. One of the objections in the case was that two of the supporters of Bhagwat Sarup, namely, Sannimal and Benarsidas were not allowed by the Polling Officer to cast their votes. Sannimal's occupation in the electoral roll was given as Halwai, while when he came to record his vote he said that he was a munim and Benarsidas was the son of Bulaqi Das while in the electoral roll he was described as the son of Krishan Lal. It is said that Krishnalal was Benarsidas's grandfather. 5. The Commissioner came to the conclusion that the Polling Officer should have allowed Sannimal and Benarsidas to record their votes. 6. The question whether the Commissioner's view was right or wrong cannot be agitated in this Court and it must be taken, therefore, that his decision on the point is final. 7. Having come to the above conclusion, the Commissioner thought that there was a tie inas much if Sannimal and Benarsidas had been allowed to cast their votes they would have voted for the unsuccessful candidate Bhagwat Sarup. 127 votes had been cast in favour of Pandit Mani Ram while 125 votes bad been cast in favour of Bhagwat Sarup. The Commissioner added to these 125 votes the two votes which were never cast, because Sannimal and Benarsidas had not been allowed to vote. 127 votes had been cast in favour of Pandit Mani Ram while 125 votes bad been cast in favour of Bhagwat Sarup. The Commissioner added to these 125 votes the two votes which were never cast, because Sannimal and Benarsidas had not been allowed to vote. Having come to the conclusion that there was a tie he applied the provisions of R. 50, Election Bales, which are as follows: Where an equality of votes is found to exist between any candidates and the addition of one vote will entitle any of the candidates to be declared elected the determination of the person to whom such one additional vote shall be deemed to have been given shall be made by lot to be drawn in the presence of the District Magistrate and in such manner as he may determine. He directed that the decision be made by drawing lot in the presence of the District Magistrate in such a way as he may determine. 8. Before the District Magistrate could draw lot in accordance with the directions of the Commissioner the plaintiff Mani Ram filed the suit out of which this appeal has arisen against Bhagwat Sarup, the District Magistrate Bulandshahr and the Governor, United Provinces of Agra and Oudh. By a subsequent application the plaintiff had the name of the Governor deleted and the parties to the suit therefore were Bhagwat Sarup, the rival candidate for election, and the District Magistrate of Bulandshahr. The reliefs claimed in the plaint were as follows: (a) That defendants 1 and 2 be restrained by means of an injunction from drawing a lot or in an; way taking part in drawing of lot or in any way assuming power and acting under R. 50, Election Rules, so as to determine which of the two either the plaintiff or defendant 1 is to be deemed a duly elected member representing Ward No. 4 Non-Muslim Bulandshahr Municipal Board. (b) That any other suitable relief may be awarded. (c) Costs of the suit be awarded against the contesting defendants. 9. The suit was contested by Bhagwat Saroop. The District Magistrate does not appear to have entered appearance. During the pendency of the suit in the Court of the learned Munsif of Bulandshahr an ad interim injunction was issued and the District Magistrate did not proceed to draw lot in accordance with the provisions of Election Rule NO. 9. The suit was contested by Bhagwat Saroop. The District Magistrate does not appear to have entered appearance. During the pendency of the suit in the Court of the learned Munsif of Bulandshahr an ad interim injunction was issued and the District Magistrate did not proceed to draw lot in accordance with the provisions of Election Rule NO. 50. The learned Munsif dismissed the suit on 11th May 1945. 10. The plaintiff filed an appeal before the learned Civil Judge of Bulandshahr (civil Appeal No. 203 of 1945) and during the pendency of the appeal the injunction issued by the trial Court was maintained and the District Magistrate was, therefore, not able to proceed under R. 50, Election Rules. The appeal was, however, dismissed on 4th August 1945 and there was then a second appeal filed in this Court. 11. An application was filed in this Court for an ad interim injunction but it was refused and the District Magistrate, in compliance with the order of the Commissioner, took proceedings under R. 50, Election Rules. Lots were drawn in accordance with this Rule on 21st August 1945, On 3rd September 1945, the Commissioner declared Bhagawat Saroop to have been duly elected under S. 25 (2) (b), Municipalities Act. The plaintiff thereupon made an application to this Court for the addition of the following reliefs : That on proof of the fact that the order of the Election Court dated 21st March 1945, and the drawing of the lot by the District Magistrate in pursuance of the aforesaid order is illegal and ultra vires, it be declared that the plaintiff is still duly elected member of the Municipal Board Bulandshahr from Ward No. 4, Non-Muslim and defendant 1 is not the duly elected member thereof. This application was granted by the learned Single Judge for reasons given by him in his order dated 25th February 1946, and after the amendment certain new points arose for determination which are set out in his judgment. After having considered those points, the learned Single Judge dismissed the appeal with costs on 15th April 1946. He, however, granted leave to the plaintiff to appeal under the Letters Patent. 12. The plaintiff baa appealed and two points are urged by Mr. Jagdish Swarup learned counsel for the appellant. 13. After having considered those points, the learned Single Judge dismissed the appeal with costs on 15th April 1946. He, however, granted leave to the plaintiff to appeal under the Letters Patent. 12. The plaintiff baa appealed and two points are urged by Mr. Jagdish Swarup learned counsel for the appellant. 13. The first point is that under S. 25 (2) if the Court (Election Tribunal) finds that the election of any person was invalid it shall either, (a) declare a casual vacancy to have created or (b) declare another candidate to have been duly elected, whichever course appears, in the particular circumstances of the case, the more appropriate. He has urged that the Commissioner had no power to refer the matter to the District Magistrate under R. 50, Municipal Election Rules, which power is given only to the Returning Officer. Learned counsel has drawn our attention to S. 2, Ballot Act of 1872 (85 and 36 Vic, ch. 38) which provides that in case of a tie the Returning Officer, if he is himself a registered elector, may cast his vote for one of the candidates and that candidate would then be deemed to have been duly elected. If, however, he is not a voter then there has to be a fresh election. There is no provision in the Ballot Act similar to the provisions under R. 50, Municipal Election Rules, for drawing of lota in the presence of the District Magistrate. Learned counsel has urged that as S. 26, Municipalities Act, does not give jurisdiction to the Commissioner to refer the matter to the Collector under R. 50 he cannot exercise that power and the election must be held to be invalid and there must be a fresh election. 14. The second point urged by him is that the Commissioner had no right to add votes which had never been cast and thus create a tie and the whole procedure adopted by him is illegal and is opposed to natural justice and must be set aside. The Commissioner having no jurisdiction to add votes which have not been cast there was no tie and there could therefore be no drawing of lot under R. 60 and the drawing of lot by the District Magistrate was illegal and void and the declaration by the Commissioner is of no effect. 15. The Commissioner having no jurisdiction to add votes which have not been cast there was no tie and there could therefore be no drawing of lot under R. 60 and the drawing of lot by the District Magistrate was illegal and void and the declaration by the Commissioner is of no effect. 15. As regards the first point, under S. 19 (1) (b), one of the grounds for challenging an election is that a person was declared to be elected by reason of the improper rejection or admission of one or more votes, or for any other reason, was not duly elected by a majority of lawful votes. Learned counsel points out that the first part of sub-section would apply where votes have been recorded but some have been improperly rejected or improperly admitted. He concedes that in the event of the Commissioner correcting the error in the counting of votes which had been improperly rejected or improperly admitted the Commissioner may declare a person who was declared to have been duly elected by the Returning Officer to have been not so elected and he can declare another candidate to have been duly elected but he has argued that in case, as a result of this correction, there is a tie then the Commissioner cannot have recourse to R. 50, Election Rules. We are not inclined to agree with learned counsel. The Commissioner has been given the right to declare another candidate to have been duly elected and for that purpose he can do all that the law provides unless there is something in the section or the Rule to prevent his doing so. Section 25 (2) (b) does not debar the. Commissioner from taking such initial steps as may be necessary to declare a candidate to have been duly elected. It appears to us to be unreasonable that as a result of the readjustment of votes if he finds that the candidate who had been declared by the Returning Officer to have been elected the Commissioner can hold in his favour. Commissioner from taking such initial steps as may be necessary to declare a candidate to have been duly elected. It appears to us to be unreasonable that as a result of the readjustment of votes if he finds that the candidate who had been declared by the Returning Officer to have been elected the Commissioner can hold in his favour. In the event of the Commissioner coming to the conclusion that another candidate had really secured the majority of the votes be can declare him duly elected, but in the case of a tie when the drawing of lots by the District Magistrate would have decided the result he should not have the power that the Returning Officer has, of referring the matter to the District Magistrate. A Commissioner is in a sense a Court of appeal and as a Court of appeal he would normally have the same powers as the trial Court unless there is something in the Act or in the rules to take away that power. Learn, ed counsel for the parties inform us that there are no authorities one way or the other and we have, therefore, to decide the matter as a matter of first impression. We may point out that R. 60, merely refers to a case where an equality of votes is found to exist, which would include a case where such equality of votes came into existence as a result of the correction made by the Commissioner while hearing an election petition and we are, therefore, clearly of the opinion that in case of an equality of votes coming into existence as a result of the correction made by the Commissioner in rejecting votes improperly admitted or admitting votes improperly rejected he can direct that a lot be drawn in the presence of the District Magistrate in accordance with R. 50, Municipal Election Rules. 16. The next question is whether the Commissioner had the right to add two votes to the votes cast in favour of Bhagwat Saroop on the ground that Bannimal and Benaraidas were supporters of Bhagwat Saroop and would in every likelihood have cast their votes for him. 17. Election rules lay down elaborate procedure for the casting of votes. Rule 41 provides that votes must be given in person at the polling station and no votes will be received by proxy. 17. Election rules lay down elaborate procedure for the casting of votes. Rule 41 provides that votes must be given in person at the polling station and no votes will be received by proxy. Rule 42 provides for votes by ballot and supply of ballot paper. Rules 43 and 44 give elaborate details of bow the ballot paper is to be filled up and put in the ballot box, and R. 45 sets out the grounds on which the ballot paper should be rejected. The mere fact that a person intended |to vote for a candidate or says that he intended to vote for him, is not the same as his having placed a ballot paper properly filled up in the box and his mere intention cannot be taken for [the act. A voter may change his mind at the last minute, he may make a mistake in filling up the ballot paper and he may not ultimately decide to vote at all. There are so many possibilities that the mere intention of a voter may never result in voting for the candidate whom he wished to support. It would be laying down a dangerous proposition to lay down that merely because a voter says that he intended to vote for a candidate but his vote was wrongly not recorded that it should be assumed that he had duly cast his vote for the candidate. This point was also argued as a matter of first impression and both counsel stated that there is no decision on the point, but towards the close of the hearing Mr. Jagdish Swarup for the appellant cited before us a Single Judge decision of the Madras High Court in the case of Pulakam Ramakristnareddi and Another Vs. Nooney Panakalu, AIR 1928 Mad 1129 where the learned Judge observed : Exception is taken to the manner in which the learned Subordinate Judge presuming that certain witnesses would probably have voted for the respondent has added their votes as if they had been duly recorded ........The Judge may reject votes, and if he had confined himself to rejection the figures would be petitioner 43, respondent 42. But he cannot also add votes. We are of the opinion that the Commissioner exceeded his jurisdiction and acted wrongly when he added two votes which had never been cast in favour of Bhagwat Saroop. 18. But he cannot also add votes. We are of the opinion that the Commissioner exceeded his jurisdiction and acted wrongly when he added two votes which had never been cast in favour of Bhagwat Saroop. 18. The result, therefore, is that the Commissioner did something for which there is no provision in the Municipalities Act and which was beyond his jurisdiction by adding two votes which had never been cast and thus declaring a tie when there was none and then following the provisions of R. 50 of the Rules and declaring as a result of the ballot that Bhagwat Saroop was duly elected. 19. The question is whether in these circumstances the civil Court has any jurisdiction to interfere. Before we proceed to discuss this point we may make it clear that we cannot assume the jurisdiction of the Returning Officer nor can we assume the jurisdiction given to the Commissioner under S. 28, Municipalities Act, 1916. It is, therefore, not competent to the civil Court to declare a person to have been duly elected, nor can we decide the election petition that was filed before the Commissioner. If the civil Court has jurisdiction to entertain the suit, to our minds the proper relief to grant would be a relief for a declaration that the order passed by the Commissioner was invalid and not in accordance with law and has no legal effect and leave it to the proper authority to reconsider the election petition and pass proper orders in the light of our decision. Learned counsel for the respondent has urged that inasmuch as the plaintiff has not asked for an injunction to restrain the defendant from acting the proper reliefs have not been claimed. In the view that we take of the nature of the relief that we can grant, the question of issuing an injunction does not arise. 20. Mr. Chandra Bhan Agarwala on behalf of the respondent conceded that the suit is of a civil nature. As a matter of fact the learned Single Judge also held that the suit is one of a civil nature and if it were not expressly or impliedly barred by the provisions of the U.P. Municipalities Act the suit would be maintain-able under S. 9, Civil P.C. (Act V [5] of 1908). Mr. As a matter of fact the learned Single Judge also held that the suit is one of a civil nature and if it were not expressly or impliedly barred by the provisions of the U.P. Municipalities Act the suit would be maintain-able under S. 9, Civil P.C. (Act V [5] of 1908). Mr. Agarwala has however urged that civil rights are of two kinds--(1) rights created by statute and (2) common law rights. According to him where a right, though of a civil nature is created by statute which provides a special Tribunal and procedure for the enforcement thereof, then if the Tribunal does not follow the procedure or does not act within its jurisdiction the civil Court can give no relief. We are not prepared to accept this argument. Section 4, Civil P.C., on which reliance is placed by learned counsel only provides that : In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred or any special form of procedure prescribed by or under any other law for the time being in force. This only means that if there is any special law or special jurisdiction or power or any special form of procedure prescribed by any other law, the provisions of the Code in the absence of any provision to the contrary would not affect the same. This is what is known as a saving clause which in the absence of anything to the contrary saves the existing procedure etc., prescribed by special laws. Section 9, Civil P.C., is the section that gives jurisdiction to the civil Courts to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The cognizance of the civil Court to hear an election petition under the U.P. Municipalities Act or to give any relief in the nature thereof is clearly impliedly barred under the provisions of the Municipalities Act, but the question whether there has been a legal adjudication by the Commissioner in accordance with the provisions of the Municipalities Act is not a question excluded from the cognizance of the civil Court. If the adjudication is illegal and the order of the Court (the Commissioner as the Election Tribunal) is ultra vires of the provisions of the Act it may be said to have resulted in a civil wrong cognizable by the civil Court on the general principles underlying S. 9, Civil P.C. Where a Special Tribunal is provided by law to try civil rights of a certain nature the Legislature must be deemed to have intended that the jurisdiction of the civil Courts would be excluded only if the Special Tribunal has acted within the authority given by that law. The matter is now concluded by several decisions of their Lordships of the Judicial Committee. In the case of AIR 1924 175 (Privy Council) though the final decision of their Lordships was in favour of the Government and the decision of the revenue authorities was upheld their Lordships were careful to point out that the proceedings which were declared to be final under the Bengal Alluvion and Diluvion Act (Act IX [9] of 1847) may be still subject to being quashed in the ordinary Courts of law if they have been tainted by fundamental irregularity. Their Lordships observed : Two conditions, however, must be noted; the first is that mentioned, namely, that fundamental irregularity, that is to say, a defiance of or noncompliance with the essentials of the procedure would still give ground for questioning the proceedings in a Court of law. The second proposition is that the burden of establishing such essential and fundamental violation of statutory requirements rests upon the person alleging it ..... 21. In the recent decision of their Lordships of the Judicial Committee in the case of the AIR 1940 105 (Privy Council) their Lordships observed : It is settled law that the exclusion of the jurisdiction of the civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. 22. In view of these decisions it is no longer necessary to examine the various decisions of this Court on which reliance has been placed by Mr. Chandrabhan Agarwala. 22. In view of these decisions it is no longer necessary to examine the various decisions of this Court on which reliance has been placed by Mr. Chandrabhan Agarwala. We may, however, give a brief reference to them. Ram Nath Vs. Emperor, AIR 1924 All 684 . That was a case in which a revision under S. 115, Civil P.C., and S. 107, Government of India Act was filed against an order of the Commissioner acting as an Election Tribunal by which he had directed the prosecution of the petitioner on the charge of forgery. The revision was dismissed on the ground that nowhere in the Municipalities Act the relation of an Election Court to the High Court was defined and the Election Court was not a Court whose orders were revisable under S. 115, Civil P.C. 23. In the case of Abdul Rahman Vs. Abdul Rahman two points were decided. An appeal was filed under S. 11, Letters Patent of the Allahabad High Court against an order of the Commissioner as an Election Court under the U.P. Municipalities Act (II [2] of 1916). The Full Bench held that the Election Court was not a civil Court within the meaning of Cl. 2, Letters Patent, and no appeal could be filed from the order passed by the Election Tribunal. A civil suit was also filed for a declaration that the order of the Election Court was null and void. Dealing with this suit their Lordships held that the Commissioner was armed with all the powers of a civil Court and this decision is intended to be a final settlement of the question in dispute, and pointed out that if a suit is allowed to be filed to question an election two opposite decisions may follow, both equally final and equally binding, one declaring an election valid and the other declaring it to be invalid. Their Lordships quoted with approval the observations of Sir Lawrence Jenkins in the case of Bhaishankar Nanabhai v. Municipal Corporation of Bombay, 31 Bom. 604 at p. 609, to the following effect: It is an essential condition of those rights that they should be determined in the manner prescribed by the Act to which they owe their existence. Their Lordships quoted with approval the observations of Sir Lawrence Jenkins in the case of Bhaishankar Nanabhai v. Municipal Corporation of Bombay, 31 Bom. 604 at p. 609, to the following effect: It is an essential condition of those rights that they should be determined in the manner prescribed by the Act to which they owe their existence. In such a case there is no ouster of the jurisdiction of the ordinary Courts, for they never had any; there is no change of the old order of things; a new order is brought into being. The learned Chief Justice did not consider what would happen if those rights are not determined in the manner prescribed by the Act to which they owe their existence. There can be no doubt and the latest observations of their Lordships in the case of AIR 1940 105 (Privy Council) make it clear that the civil Court has in that case jurisdiction, provided the right is of a civil nature, to consider whether the determination of the question has been in the manner prescribed by the Act. 24. The decision of the Full Bench was followed by Iqbal Ahmad and Kisch JJ. in the case of Joti Prasad Upadhiya Vs. Amba Prasad and by Sulaiman C.J. and Bennett J. in the case of Nawal Kishore Agarwala Vs. Municipal Board and Others where a suit was filed for a declaration challenging the election of certain members of a municipal board on grounds other than those mentioned in S. 19, U.P. Municipalities Act. As we have already said the civil Courts cannot assume to themselves the jurisdiction under the Municipalities Act to act as Election Tribunals. The question whether the civil Courts can consider the question whether a Special Tribunal has acted within its jurisdiction and in accordance with the procedure prescribed by the Act creating it has not been considered in either of these two cases. 25. There are two recent decisions. The question whether the civil Courts can consider the question whether a Special Tribunal has acted within its jurisdiction and in accordance with the procedure prescribed by the Act creating it has not been considered in either of these two cases. 25. There are two recent decisions. In Sat Narain Gurwala vs. Hanuman Parshad and Another Harries C.J. and Mahajan J. held that in a case arising out of the Punjab Municipalities Act even if the jurisdiction of the civil Courts is excluded by reason of the special tribunal functioning effectively, the civil Courts will have jurisdiction to examine into cases where the provisions of the statute constituting the special tribunal have not been complied with or the tribunal has not acted in conformity with the fundamental principles of judicial procedure. 26. Lastly in the case of Mahesh Chandra v. Abdul Ghafur, AIR 1946 cal. 435, Mukherjea and Ellis JJ. held that ordinarily a civil Court would have the authority to investigate the question as to whether a special or a subordinate tribunal has acted within the limits of its jurisdiction. Their Lordships, however, observed that this rule must be taken subject to the limitation that the special tribunal might be invested by the Legislature with exclusive jurisdiction to determine its own authority in certain matters, and where it is so invested, the jurisdiction of the civil Court must be deemed to have been taken away to that extent. Their Lordships held that the Bengal Agricultural Debtors Act (VII [7] of 1936) intended to completely bar the jurisdiction of the civil Court whether the special tribunal has acted within or without jurisdiction. The Legislature being supreme it cannot be doubted that it may, if it so desires; completely bar the jurisdiction of the civil Courts, even if the special tribunal has not acted in accordance with the procedure laid down and within its jurisdiction. But such exclusion of jurisdiction as their Lordships of the Judicial Committee have held must not be readily inferred. There is nothing in the Municipalities Act which would entitle us to bold that the Legislature intended that the jurisdiction of the civil Courts to consider whether the Commissioner as the Election Tribunal has acted in accordance with the procedure prescribed and within his jurisdiction or not is also to be barred. There is nothing in the Municipalities Act which would entitle us to bold that the Legislature intended that the jurisdiction of the civil Courts to consider whether the Commissioner as the Election Tribunal has acted in accordance with the procedure prescribed and within his jurisdiction or not is also to be barred. It is not possible to deny that the Municipalities Act confers a right on the citizen of a civil nature to have an election petition decided in a particular manner by a particular tribunal and if those rights, which are of a civil nature, are infringed there being nothing in the Municipalities Act to bar the jurisdiction of the civil Court, the civil Court seems to be the only forum for determination of the question whether the Commissioner as the Election Tribunal has acted in accordance with the fundamental rights and within his jurisdiction. 27. The only other point for consideration is whether in the view that we have taken that the order of the special tribunal was not in accordance with law or natural justice the civil Court can interfere. Mr. Pathak has drawn a distinction between an order being irregular and it being a nullity. In the view that we have taken that the Commissioner had no right to add votes which had never been cast and had thus acted clearly without jurisdiction and the whole proceedings thereafter were vitiated by that mistake and be has declared somebody as elected who never polled the maximum number of votes that had been cast, we find it difficult to agree that it was a mere irregularity and the order was not null and void. It was a clear usurpation of powers. It is a valid right of the citizen to have their representative elected by a majority of them returned to the Municipal Board. The Commissioner here instead of directing a fresh election has held that a person who had not secured the majority of votes has been duly elected. We do not mean that in every case a civil Court can consider whether a candidate duly elected has or has not secured a majority of votes but where on the face of it the order of the Commissioner appears to be beyond his jurisdiction, it is not a case of a mere mistake of law or fact. We do not mean that in every case a civil Court can consider whether a candidate duly elected has or has not secured a majority of votes but where on the face of it the order of the Commissioner appears to be beyond his jurisdiction, it is not a case of a mere mistake of law or fact. To our minds the mistake cannot be called a mere irregularity and the order must be considered invalid and beyond the jurisdiction of the Commissioner. In that view of the matter, we must set aside the decree of the learned Single Judge of this Court and the decrees of the Courts below but in place of the relief asked for by the plaintiff we grant him the following declaration. That the order of the Election Tribunal adding to the votes cast in favour of Bhagwat Saroop two votes which bad never been cast and then declaring a tie and directing the District Magistrate to act under R. 50, Municipal Election Rules and his subsequent orders declaring Bhagwat Saroop duly elected are all naull and void. The Election Tribunal may now pass Bach order according to law, on the election petition, as it may deem fit. 28. The question of coats in this case is a difficult one. The line followed from Court to Court has not been the same nor has the Court granted the relief in the terms prayed for. In that view of the matter we consider that it would be proper if we direct the parties to bear their own costs in all the Courts. We order accordingly.