<NAME>, J.

1. The five appellants before us, hereinafter called the accused, were jointly tried before the learned Sessions Judge of Sholapur, and were convicted by that Judge in agreement with both assessors. At the material times to which the charges relate the accused held the following characters : The first accused was the City Sub-Inspector of Police at Sholapur, the second accused was a Police Jamadar and by caste a Kaikadi, the third accused was a Police Havaldar or Head Constable, the fourth accused was a money-lender of Sholapur, the fifth accused was the Police Patil of the village Patkul in the Madha Taluka of the Sholapur District.

2. The accused No. 1 has been convicted of the offences: (a) of fabricating false evidence with intent to procure conviction of an offence punishable with imprisonment for seven years; (b) of wrongful confinement; (c) of causing criminal proceedings to be instituted against a person without just or lawful ground; (d) of giving false evidence with intent to procure conviction of an offence punishable with imprisonment for seven years.

3. The second and third accused have been convicted : (a) of the abetment of fabrication of false evidence with intent to procure conviction of an offence punishable with imprisonment for seven years ; (b) of the abetment of wrongful confinement.

4. The fourth accused has been convicted: (a) of the abetment of the institution of criminal proceedings knowing that there was no just or lawful ground for such proceedings; (6) of the abetment of wrongful confinement.

5. The fifth accused has been convicted of the offence of giving false evidence with intent to procure conviction of an offence punishable with imprisonment for seven years.

6. The facts and circumstances attending the alleged crimes are fully and lucidly stated at the beginning of the Sessions Judge's exhaustive judgment. It is unnecessary, therefore, to recapitulate them. It will be enough to say that in substance the accusation is this : that a robbery having been committed at the house of one <NAME>, and property, namely, cash and ornaments worth about Rs. 60,000 having been stolen from that house, the accused aided and abetted each other in inducing a young man, named <NAME>, whom they knew to be entirely innocent of the theft, for the consideration of a bribe of Rs. 100, falsely to confess to complicity in the crime, and to acquiesce in being prosecuted for it, the object being that the accused or some of them might share the loot with the real thieves; that to this end the accused wrongfully confined <NAME> ; fabricated false evidence in order to procure his conviction ; knowingly instituted a false prosecution against him, and in that prosecution gave false evidence in order to secure his conviction.

7. According to the case for the Crown the important dates in the whole series of transactions are as follows:-On the 29th October 1911 the burglary took place at the house of <NAME>; on the 30th October <NAME> made his complaint to the <ORG> ; on the 7th November the first accused, who had previously been placed on special duty in connection with various thefts of which Kaikadis had been suspected, was appointed to investigate the burglary at <NAME>'s. He selected his own assistants for this purpose, and among the persons so selected were his subordinates the second and third accused. On the 22nd November, the first accused sends the second accused to Sholapur ; on the 23rd November the first accused goes to the village Pennur; on the 24th November we find the whole <ORG> party at Patkul, the accused 1 and 3 being joined there by the second accused and a man called <NAME>, who was a <ORG> agent or spy. On the 25th November the party proceed to the village of Sarola, where an interview is held with certain Kaikadis, who apparently were the real authors of the burglary at Pari-charak's, or were acting on behalf of the real authors. In the fields of this village Sarola on this day these Kaikadis hand over to the first accused in the presence of the second accused and <NAME> certain property forming part of that stolen from <NAME>'s house. The property so handed over to the first accused consisted of a valuable bundle of ornaments and about Rs. 2,000 in cash. This being received by the first accused, he and his assistant, the second accused, invite the Kaikadis to give up one of their own tribe for conviction, but this the Kailkadis refuse to do, though they promise to fee any person, presumably any innocent person, whom the <ORG> could secure to undergo prosecution. That evening the first accused suggests to the second accused and <NAME> that the person to be victimised should be the lad <NAME>, a Mang youth, who about this time was anxious to be put on the ' Hazri' or roll-call, in order to ensure that the <ORG> should regard him as a person of good character. This procedure appears to be usual among members of such castes as the <NAME>. On the 27th November the accused 1 and 2, with <NAME>, return to the Sarola fields, where they receive from the Kaikadis a further sum of twenty-five sovereigns to be paid as indemnity to the person whom the <ORG> accused should select for wrongful prosecution and conviction

8. On the 28th November the second accused goes to Sholapur with <NAME>, and on that day <NAME> makes his first approaches to <NAME>, who was the prospective father-in-law of the boy <NAME>, and under whose protection and guardianship <NAME> may be roughly stated to have been then living. These overtures were scouted by <NAME> who refused to lend himself to the <ORG> schemes. On the following day, the 29th November, the second accused resumed his negotiations, and in the end they resulted on that day in a settlement. This settlement was mainly brought about through the intervention of the fourth accused, who was <NAME>'s ' <NAME> ', and the man to whom <NAME> was looking for protection. The fourth accused however, was won over by the second accused ; and the fourth accused's influence finally succeeded in conquering <NAME>'s and <NAME>'s powers of resistance. The result was that the fourth accused was paid Rs. 100 which was to be handed over to <NAME> when <NAME> should emerge from his wrongful imprisonment. That same evening, the 29th November, the second accused and <NAME> and <NAME> leave Sholapur by train and go to Mohol, where they spend the night on the Station platform. On the 30th November the second accused, <NAME> and <NAME>, travel through the villages of Pokhrapur and Adhegaon. At Adhegaon they are met by the first accused and his party, who had arrived on the preceding day. The first accused tutors or coaches <NAME> in the role which has been allotted to him to play ; and, that done, the party move on to the village of Patkul which they reach about 4 o'clock in the afternoon.

9. The whole party then proceed to certain jungle or waste lands to the North of the village. The Police accused go ahead, <NAME> and <NAME> following. The ornaments which accused No. 1 had received from the Kaikadis in the fields of Sarola were taken on by him to Patkul, and these ornaments were buried by the first three accused in the sandy bed of a river running through those waste lands of Patkul. The place of concealment was then pointed out to <NAME>, who was further directed what he was to do. When these preparations were complete the Patil of the village, i.e., the fifth accused and the Panch were called for out of the village. Before these people <NAME> digs up the buried ornaments, which he professes himself to have concealed, and confesses that he was one of the thieves who broke into <NAME>'s house.

10. On the first of December the party come back to Pandharpur, <NAME> being in custody and in charge of the first accused. At the first accused's directions the second accused takes <NAME> round the town of Pandharpur and shows him the house of <NAME> and other topographical features with which it was essential for the accused's scheme that <NAME> should be more or less familiar.

11. On the 2nd December <NAME> is taken before the Magistrate, and there he makes the confession which he had been tutored to make, and which is Exhibit 19 in this case. That being done the <ORG> obtain a remand for fourteen days.

12. On the 20th December <NAME>, who throughout had been profoundly dissatisfied with the first accused's investigations and their result, saw the <ORG> Inspector <NAME> and complained to him about the first accused's enquiries, so far as they had then proceeded.

13. On the fifth January the accused 1 and 5 were examined as witnesses before the Magistrate in the case against <NAME> and gave evidence in favour of that prosecution. On the 6th January <NAME> has an interview with the District Superintendent of <ORG>, Mr. <NAME>, and the interview was attended by the two informants <NAME> and <NAME> who were mainly responsible for inspiring <NAME> with doubt and suspicion as to the first accused's investigations. The result of this interview was that Mr. <NAME> was determined personally to probe matters to the bottom and that without any delay. On the following day, the 7th January, Mr. <NAME> accordingly in the presence of the inquiring Magistrate takes the statement of <NAME> who was still in the lock-up. Thereafter Mr. <NAME> proceeds straight to Sholapur where he examines all the available witnesses referred to in <NAME>'s statement. These examinations were largely completed on that very night. Those that could not be so completed were taken on the following day, the 8th January, when Mr. <NAME> moves the Magistrate to enlarge <NAME> on bail, and the Magistrate does so. Then Mr. <NAME> goes to the village of Patkul following the same route which had been taken by the <ORG> accused and <NAME>. On the way the Superintendent made close enquiries at the villages which the <ORG> party had passed through, notably Pokhrapur and Adhegaon, and in the presence of many of those villagers, Yadu and <NAME> were carefully identified before <NAME>. On the 12th January the first three accused were arrested on the 14th January <NAME> was discharged, and an order was made by the Magistrate under Section 476 of the Criminal Procedure Code against these accused and others. The District Magistrate himself conducted the preliminary inquiry, and as a result committed these accused to take their trial before <ORG>.

14. As the learned Sessions Judge has observed, the questions which really arise for answer are two : first, was <NAME> innocent of the offence of housebreaking and theft with which he was charged? and secondly, if so, did the accused knowing him to be innocent of the said offence conspire to fabricate false evidence connecting him with the crime, and to get him arrested and prosecuted? As we have noticed, the Judge and the Assessors were all agreed in answering these questions adversely to the accused. The learned Judge's own judgment is sufficient proof of the care and thoroughness with which he conducted this trial; and he in turn bears witness to the great care and attention which the assessors paid to the case.

15. It appears to us desirable to consider the case first in its broader aspects paying special regard to natural and ordinary probabilities consistent with the usual motives of human conduct. Judged by this cost, the original story for the defence, the story, that is, that the accusation against <NAME> was true, has very decidedly less claim to credit than the story for the <ORG>-apart from there being no evidence for the defence and much evidence for the <ORG>. For the prosecution case, though it discloses an odious conspiracy in which no <ORG> should lightly believe, contains nothing unreasonable, nothing inconsistent with the conduct which would be pursued by men who put avarice before honesty and fraud before duty ; whereas the original story for the accused is in violation of ordinary probabilities at every turn. For upon that story what are we asked to believe ? We are asked to believe that <NAME> on being seen by the <ORG> party in the waste lauds of Patkul immediately ran away, was pursued and captured ; that he forthwith made a confession and showed some stolen ornaments buried near the particular spot where he was seized. Now the burglary was over a month old. The <ORG> had no sort of clue or evidence against <NAME>. <NAME> was as well entitled as the accused themselves to be walking about these waste lands of Patkul. There is no conceivable reason why he should have forced suspicion on himself by running away ; no motive why he should confess ; and if we concede that all this happened so, yet we must go further and suppose that <NAME> also happened to have secreted the property just at this particular spot where the <ORG> happened to come upon him, although this particular spot is in the lands of Patkul and <NAME> is a permanent resident of Sholapur, and has no sort of connection with Patkul, a village some forty miles away. Other circumstances in the confession also call for notice ; among them the evidently inspired parenthesis that <NAME>'s associates in the crime were more robust than he, a simple-minded weak lad, a circumstance which would be of great importance to the <ORG> if they inspired this confession but which could be of no importance whatever to <NAME>. Then there is the inexplicable assertion that since the theft <NAME> had been wandering idly about the jungle as if seeking arrest, though he lived and worked in Sholapur ; the establisned falsehood that <NAME> was a resident of Najana in Moglai; the entirely casual manner in which the other burglars happening to come across <NAME> as he was vaguely wandering in the lands of <NAME> immediately recruited him, a useless and unneeded stranger to join them in their crime ; and lastly his complete ignorance of even the caste of these sudden confederates, so that all he could say of them is that "they were probably Mussalmans as two or three of them wore beards." It is quite certain that whoever the gang of robbers were that pillaged <NAME>'s house their numbers were not recruited in this fashion. In truth the more we study this confession in the light of obvious facts and probabilities, and quite apart from the evidence for the prosecution, the plainer becomes the inference that it is a fiction and a stupid fiction. Indeed these circumstances are so unanswerable that in the <ORG> below the defence abandoned the theory that <NAME> was a real thief, and nothing has been heard of it here. But upon that footing what is left to the defence ? Nothing but a vague suggestion that the whole prosecution may be the result of a conspiracy on the part of some undefined persons who had a grudge, not only against the <ORG> accused, but against the <NAME> of Sholapur, and the <ORG> Patil of Patkul.

16. Postponing for a moment the consideration of this suggestion, let us examine the evidence, for it is upon the evidence that the appeal must be decided. As we have observed, the only evidence called is that for the prosecution. First, then, we have an overwhelming body of evidence which traces the second accused with <NAME> and <NAME> from Sholapur through Mohol and Pokhrapur to Adhegaon and so to Patkul. This journey is proved, not only by <NAME>, but by a large body of unrelated witnesses who come from various villages, are wholly independent of one another and of this case, and have not any interest to link them together; nor has any one of them any cause of grudge or malice against any one of these accused.

17. One proposition is thus, we think, established beyond the reach of doubt, and that is that, as <NAME> says, he was not accidentally found wandering in the Patkul lands, but was designedly taken there by the <ORG> accused. But the ornaments were incontestably produced in these lands by <NAME>. And the only possible theory to account for the presence of the ornaments in this place of their concealment is that, as <NAME> and the witnesses say, they were taken there and buried there by the <ORG> accused.

18. This, in our judgment, is as certain as any proposition can be made certain by human evidence ; and its consequences, when fairly realised, set the whole case for the prosecution beyond suspicion. For since we have the truth of <NAME>'s evidence on these essential parts of the case thus demonstrated, there is no conceivable reason why we should not trust <NAME> also in regard to the preceding events at Sholapur; indeed that evidence, and that evidence alone, can account for the presence of the whole party at Patkul and the travesty which was there played out. It was suggested by Mr. <NAME> that <NAME> should be regarded as an accomplice, but we think it would be an abuse of language to apply such a word to this unfortunate lad, an unintelligent youth of a depressed and despised caste, who was forced into reluctant and helpless submission by the threats of the powerful accused Nos. 1, 2 and 4. <NAME> was no more an accomplice in the accused's guilt than the traveller who delivers up his purse at the mouth of the highwayman's pistol is an accomplice of the highwayman. This witness, therefore, who was believed by the Judge and Assessors who saw him, who is unshaken by a long and severe cross-examination, and who is supported at every possible point by the ordinary probabilities of the case, needs no corroboration : he is entitled to credence on his own merits, and if the convictions had proceeded on his sole testimony, we should have been prepared to affirm them. But, as we have noticed, that is far from being the case : <NAME>, who is corroborated as to the village incidents by the cloud of independent witnesses from the villages, is corroborated also as to the Sholapur incidents of 28th and 29th November by his prospective father-in-law, <NAME>, with whom he was living, by <NAME>'s wife, <NAME>, by his former employers, <NAME> and <NAME>, and by <NAME>'s brother-in-law, <NAME>. We are satisfied that these witnesses are witnesses of truth.

19. The result is that, on the testimony of <NAME> and the corroborating testimony of the witnesses from the villages and from Sholapur, reinforced by the general considerations to which we have referred at the beginning of this judgment, we have the whole case for the <ORG> established from the preliminary machinations in Sholapur down to <NAME>'s extorted confession of the 2nd December.

20. The above evidence is enough, and more than enough, to justify the convictions of all the accused. We have, however, in addition, the evidence of the <ORG> spy and accomplice, <NAME>. He tells the same story as the truthful witness <NAME>; he is corroborated in all essentials by the same independent witnesses as well as by the diaries of the <ORG> accused Nos. 1 and 2 ; his protracted cross-examination was wholly barren of any inference against him ; and his original story was surprised out of him by the promptitude of the District Superintendent of <ORG>, Mr. <NAME>, before he had motive or opportunity for invention. In these circumstances we accept <NAME>'s deposition as truthful, and are prepared to act upon it.

21. It remains to notice such arguments as seem to call for notice in respect of each accused who has appeared by counsel or pleader. It must be said in liinine that the only difficulty in dealing with the defence lies in ascertaining what precisely the defence is. The main argument was addressed to us by the Honourable Mr. <NAME> who appeared for accused 1 ; but it was obvious throughout his address that lie had no constructive or consistent defence to offer. The defence adopted after full consideration by his client, a man of experience and education, was that <NAME> was in truth one of the Pandharpur thieves; that line of defence, however, which was abandoned by accused's legal advisers before <ORG>, was also disavowed by Mr. <NAME> here. As we have shown, it is a wholly impossible defence. It thus devolved upon accused I's pleader to submit another line of argument, and it is unfortunate that one of the contentions suggested by the learned pleader is a contention which his client plainly repudiated before the Sessions Judge-we mean the contention that, <NAME> being innocent, the first accused was imposed upon by the second accused. This suggestion, however, will not bear examination for a moment. The second accused, a mere <NAME>, was the direct subordinate of first accused, who had specially selected him as his assistant in these matters ; the first accused was, not only formally or ostensibly, but really in charge of the whole investigation, and, as his diaries show, was directing and superintending every step taken; nor could accused 2 and 3 adopt any measure of importance otherwise than by his orders. Also, as we have said, this particular defence was in terms declined by first accused when it was suggested to him by the Sessions Judge; and, finally, it is wholly irreconcileable with the evidence of <NAME> and <NAME>.

22. Next it was suggested that possibly the accused might themselves be the victims of a conspiracy. The suggestion was so nebulous and unsubstantial that, as we think Mr. <NAME> would acknowledge, he himself found some difficulty in putting it into words. Of course the accused were under no obligation to prove anything, and they are entitled to advance any theory to which an air of plausibility can be given ; but, if it is to prevail, even a theory in defence must bear some relation to established fact: it must not be wholly in the air, but must, so to say, have a foot on the solid earth somewhere. These easy conditions the present theory wholly fails to satisfy. There is no person living of whom it can be, or has been, suggested that he bears malice, not only against these <ORG> accused, but simultaneously also against the wealthy <NAME> of Sholapur and the <ORG> Patil of the remote village Patkul. Nor is it possible to hold that accused I alone may be the victim of other people's conspiracy. It is no light matter to trump up a false case against a Sub-Inspector of <ORG>, and the half-hearted suggestion that some of his official superiors may have had an interest in doing so, entirely fails. Moreover, the whole genesis of the case for the <ORG> flatly negatives such a theory. That case has its origin in the sudden and unforeseen action of Mr. <NAME>, who, after his interview with <NAME> and his informants on 6th January, immediately posted off to the lock-up and there, on the 7th January, recorded <NAME>'s statement in the presence of the Magistrate. Since the 2nd December <NAME> had been in the lock-up in the direct custody of the <ORG>, and we observe that one member of the <ORG> guard was accused 2's own brother. It is certain that, during <NAME>'s detention prior to Mr. <NAME>'s interview with him, he was kept very safe from any influences, if any influences existed, which could possibly have hampered the first accused or his schemes. Thereafter the case against accused was clinched by the same activity. <NAME> gave to Mr. <NAME> the names of <NAME> and the Sholapur witnesses, and Mr. <NAME> hastened off to Sholapur where he examined these witnesses that same night and the following day. All was done before any witness could be tampered with, and at a time when no witness could have anticipated Mr. <NAME>'s visit. The village witnesses were discovered with similar expedition, Mr. <NAME> proceeding to Patkul along the exact route which the accused had followed from Sholapur. It is thus abundantly proved that, as there was no motive or occasion for anybody to bring false accusations against the first or any other accused, so there was no time or change or opportunity for any such concoction,

23. In the case of the second accused nothing that can be called a separate defence has been attempted. The evidence proves that he was throughout the main instrument employed by first accused in this conspiracy, and that the first accused could not have chosen a more willing or active confederate in the prosecution of the common objects of the crime.

24. Accused 3, who was not represented before us, was with the accused 1 and 2 and <NAME> at <ORG> before the party moved on to Patkul, and at Patkul he assisted accused 1 and 2 in burying the ornaments which <NAME> was to pretend to discover. There can be no doubt of his guilt, and the learned Sessions Judge has given due weight to the fact that he was probably acting more or less under the influence of his superiors, accused 1 and 2.

25. Mr. <NAME> for the 4th accused has, quite rightly, mainly restricted his argument to the question of motive, contending that no sufficient reason has been shown why this man, a money-lender, should have joined in the first accused's schemes. But even if this assumed absence of proved motive were a fact, we should be compelled to disallow the argument ; and we should do so without hesitation, seeing that the guilt of this accused is abundantly proved by the witnesses whom we believe, namely <NAME>, <NAME>, <NAME> and <NAME>. It is clear that none of these persons has any motive in giving false evidence against this well-to-do <NAME>, nor are they the kind of persons who would have the courage to incur his displeasure. Indeed, as the evidence shows, it was to this man, as being his <NAME> that <NAME> threatened to appeal when the second accused first tried to bully him into sacrificing <NAME>. This danger was, however, at once removed by the second accused, who proceeded to win over the fourth accused, and enlist his assistance in favour of the fraud; and it was this betrayal by the fourth accused, their only influential acquaintance, which finally reduced <NAME> and <NAME> to helpless acquiescence in the conspirators' plot. As to the <NAME>'s motive, it does not appear to us to be far to seek ; apart from the possibility of a share in the unlawful profits, it was, no doubt, a great thing for this accused to stand well with a Police Officer of the rank of Sub-Inspector, while in his view, we think, it was a small thing that a boy of the <NAME> caste should be wrongly condemned to what he was led to believe would have been a few months' imprisonment. Thus the question of accused 4's motive causes neither obscurity nor difficulty, and upon the faith of the witnesses named we must affirm his conviction.

26. In the case of the accused No. 5 there is a preliminary point raised by his learned Counsel which we must deal with before we can come to the merits. The point is that objection is taken on the ground that accused No. 5 was charged and tried jointly with the accused No. 1, though one of the charges against the accused No. 1 was, like the charge against accused No. 5 himself, the charge of giving false evidence against <NAME>. From this circumstance it is urged that the joint trial of accused No. 5 with accused No. 1 was illegal, and for this argument reliance is placed upon the decision of this Bench in King-Emperor v. <NAME> (1902) 4 Bom. L.R. 53. We think that that case is on the facts immediately distinguishable from the case which is now before us.

27. So far as the facts in <NAME>'s case are to be collected at all from the judgment, it would appear that the Court there had before it nothing more than this that two accused persons were severally charged with giving false evidence and were tried together. The offences, says the Bench, were distinct : there was no charge of mutual abetment or con spiracy such as under Section 239 might possibly have justified a joint trial.

28. Here the facts arc very different, for the case for the prosecution, and it is that which must be looked at when we are considering the propriety of the charges, was that there was one sustained and continuous plot for the purpose of screening the real offenders in this robbery, and of exposing <NAME>, an innocent man, to a false charge with a view that the accused or some of them might participate in the stolen property. To secure this end various means had to be resorted to. One of those means, and only one, a mere incident in the whole transaction, was the giving of false evidence in the prosecution of <NAME>.

29. It appears to us, therefore, that Section 239 of the Code is distinctly applicable, and that, in the circumstances of the case, the joint trial was not only legal but was demanded in the interests of public time and public convenience.

30. We may add that during the course of the hearing before the Sessions Judge additional charges were framed against the fifth accused charging him with abetment of the other accused in respect of other offences committed in the course of this plot. The case in this respect resembles Emperor v. <NAME> (1905) I. L. R. 30 Bom. 49 and here, as there, the accusation against all the accused persons is that they carried out a single scheme by successive acts done at intervals, but there was complete unity of project, and the whole series of acts were so linked together by one motive and design as to constitute one transaction within the meaning of Section 239 . This preliminary objection must, therefore, be disallowed.

31. Coming to the merits and applying the evidence which, for reasons already given, we hold to be trustworthy, we cannot doubt the propriety of this accused No. 5's conviction of having intentionally given false evidence before the First Class Magistrate. It is true that the charge in this respect was not framed with all the precision desirable, but Mr. <NAME> candidly admits that he can make no point of this since his client certainly had full notice of the particular part of his deposition which was impeached as false. And that is unquestionably the fact. The deposition in question is Ex. 46, and in it this accused stated on solemn affirmation that he accompanied the first accused and the rest of the <ORG> party on their first exodus from the village Patkul to the waste lands to the North; that there he saw <NAME> running away; that he and others pursued and arrested <NAME>; and that <NAME> said he was a Mang from the Nizam's Dominions and confessed that he had committed the robbery at Pandharpur and had got the property. It is to be observed that in this original deposition there is nothing to suggest that the accused No. 5 did not accompany the <ORG> party from the village Patkul itself-indeed that is the plain implication in the deposition; but the main ground upon which the deposition is now sought to be saved is, not that accused No. 5 was with the <ORG> party when they started, but that after they had started and had been gone some minutes, a Constable came and fetched the <NAME>, who then followed the party to the waste land. It is plain that this rather fine distinction receives no countenance from the original deposition, but appears to owe its origin to the ingenuity of counsel seeking some means of harmonising the deposition with the accepted evidence. But the evidence is fatal to the suggested harmony, for on the evidence it is clear that the <NAME> did not accompany the <ORG> party at any time on their excursion to the waste lands, but that he went there only afterwards when, after <NAME>'s pretended capture, he on the first accused's orders took out a Panch from Patkul. This is clear not only from the evidence of the accomplice <NAME> and the witness <NAME>, but also from the evidence of the witnesses <NAME>, <NAME>, <NAME>, <NAME> and the two Panch men <NAME> and <NAME>. These last two witnesses prove further that when they and the <NAME> went out at the Sub-Inspector's summons, they lost their way to the particular spot where <NAME> was in custody: there could have been no losing of the way if the <NAME> had only just returned from the spot after witnessing <NAME>'s capture.

32. There is nothing on the record to bear out the accused's present attempted defence or to suggest that the witnesses should not be believed. We must, therefore, come to the conclusion that the <NAME> did not accompany the <ORG> party on their excursion which led to the seizure of Tukya, and all that part of his deposition, to which reference has been made, was false in fact. But if it was false in fact, it was certainly false to the accused No. 5's knowledge. He has been acquitted on the charge of complicity in the general conspiracy, and though the record contains matters of suspicion against him even in this respect, we are willing to accept the Judge's view as most in favour of the accused, and hold that he was no party to the conspiracy prior to the 30th of November. That, however, has no bearing upon the charge upon which he has been convicted, and which for the reasons given has, in our opinion, been fully established against him.

33. We have now explained the reasons for which, in our opinion, these convictions must all be affirmed. Our judgment has run to some length owing solely to the importance of the case, and not at all to the difficulty ; for difficulty there was none. No case in our experience has been more convincingly established. We need not waste words in reprobation of this crime. Such persons as the accused are not to be affected by mere words of whatever severity; they are to be reached only by sharp punishment and the fear of punishment. The sentences imposed by the Sessions Judge have been carefully considered by us, and having regard to the character of this crime, a wicked and cowardly conspiracy against a defenceless lad, we are unwilling to reduce any one of the sentences by a single day.

34. The convictions and sentences are therefore confirmed, and these appeals are dismissed.

35. In parting with the case we desire to place on record our high sense of the admirable work of the District Superintendent of Police, Mr. <NAME>. It is to this Officer's detective ability, zeal and promptitude that the cause of justice is indebted for the exposure and punishment of this grave and carefully prepared conspiracy. A copy of these observations should be forwarded to Government for their information.


JUDGMENT <NAME>, J.

1. This is an application filed by the petitioner, inter alia, for the following orders:--

(a) Leave be granted to the petitioners to serve notice of this application also on Smt. <NAME> and Sri <NAME>.

(b) Interim order of injunction passed in the aforesaid suit on 27th July, 1959 be set aside and/or vacated.

(c) Maharaja of Burdwan and his legal heirs and representatives be directed to execute the conveyance in respect of Tiretta Bazar Property being premises No. 22 (also known as 22B), <NAME>, Kolkata in favour of <NAME> (HUF), <NAME> (HUF), <NAME>, <NAME> (HUF), <NAME> (HUF), <NAME> (HUF) and <NAME> (HUF) within a period of 3 months from the date of passing of the order herein;

(d) In default, the Registrar, <ORG>, Calcutta be directed to execute necessary conveyance as stated in prayer (c) above;

(e) M/s. Orr. Dignam & Company, Solicitors & Advocate for the Maharaja of Burdwan of 29, Netaji Subhas Road, Calcutta, be directed to pay and/or refund the amount of Rs. 2,50,000/- and Rs. 3,00,000/- lying deposited with them in terms of <ORG> order dated 17th December, 1962 together with interest thereon to the Maharaja of Burdwan and/or his legal heirs and representatives towards the full and final payment of the purchase price of the said property.

(f) Registrar of <ORG>, Calcutta be directed to register a conveyance in relation to <ORG> being premises No. 22 (also known as 22B), Rabindra Sarani, Calcutta on the basis of the valuation as fixed by <ORG> on 17th December, 1962.

(g) The suit be dismissed as against he defendant Nos. 2(b) to 2(i);

(h) The death of the defendant Nos. 1(a), (iv) and 2(a) be recorded;

(i) A decree be passed in the instant suit in terms of prayers above.

2. Facts of the case briefly are stated hereinafter:--

On 14th February, 1948 Maharaja of Burdwan granted lease in respect of premises No. 12, Lower Chitpur Road, Calcutta (hereinafter referred to as the said property) known as Tiretta Bazar property for a term of 56 years with an option for 33 years in favour of <ORG>. The initial period would expire on February 14, 2014.

3. On October 22, 1952 the Maharaja of Burdwan by an agreement agreed to sell the said Tiretta Bazar Property to one <NAME>, the predecessor-in-interest of <ORG> and by the same agreement, the premises No. 57, Clive Street was agreed to be sold by the said Maharaja to one <NAME>. A suit was filed by <NAME> and <NAME> against the said Maharaja for specific performance of the said agreement in or about 1953 (being the suit No. 2972 of 1953).

4. On January 13, 1953 an agreement was entered into between <NAME> and <NAME> on the one hand and <NAME> on the other hand for purchase and/or permanent lease of the said Tiretta Bazar Property upon payment of Rs. 5,50,000/- and the proportionate annual rent and/or charge payable under the agreement dated October 22, 1952.

5. It was further agreed between <ORG> and <ORG> that they will have 50% share and whatever the amount was invested will carry interest at the rate of 9% and they shall bear the profit and loss in the said transaction 50%.

6. On May 5, 1959 the suit was filed by the <NAME> and <NAME> and the said suit being Suit No. 2972 of 1953 was decreed by consent of the parties. The said decree recorded that the said Tiretta Bazar Property should be sold at a price of Rs. 5,50,000/- in favour of Muralidhar <NAME> or his nominee and the amounts should be paid simultaneously with the execution of the conveyance.

7. On 29th July, 1959 the present suit was filed by the Jajodias and in the said suit an interim order of injunction was passed restraining <NAME> from executing any conveyance in terms of the said decree of May 5, 1959 passed in the said Suit No. 1972 of 1953.

8. In 1961 a company petition was filed being C.P. No. 32 of 1961 under Sections 397 and 398 of the Companies Act in relation to administration and management of the said <ORG> by <ORG> of the said company. On 17th December, 1962 an interim order already passed in the suit was confirmed and the <ORG> was directed to deposit Rs. 5,50,000/- with Messrs <NAME> & Co., advocates for Maharaja of Burdwan and were directed to invest the said sum of Rs. 5,50,000/- in two fixed deposit accounts.

9. The company petition which was filed in respect of <ORG> was disposed of on 17th September, 1976 by <ORG> in A.P.O. No. 382 of 1976. On 16th July, 1985 the present suit was dismissed. On an application the same was restored and again on 21st April, 1986 the said suit was dismissed. On 4th June. 1986 the said order was recalled and the present suit revived.

10. On 27th January, 1997 <ORG> passed an order in the said application by consent of the parties. Thereafter, on 9th April, 1999 parties were agreed upon before <ORG> and the order passed earlier was modified and the order dated 27th January, 1997 was modified and thereafter this application has been filed for a direction on the Maharaja of Burdwan and his legal heirs and representatives in respect of <ORG>,

11. Learned counsel appearing on behalf of the plaintiff/petitioners in this suit submitted that before the execution of the conveyance in terms of the said decree dated 5th May, 1959, the present suit was filed by the <NAME> and an interim order was obtained which was subsequently confirmed and the amount was directed to be invested in short-term fixed deposit account and the said amount has been held by <ORG>, advocates in the bank. The disputes between the shareholders in relation to the affairs and management of <ORG> has already been settled including the disputes in the instant suit. It is further submitted that unless the interim order of injunction passed in this suit is vacated and the other consequential orders as prayed for in the petition be made, disputes between the parties cannot be settled, plaintiffs duly served the notice on the executors to the Will of the Maharaja of Burdwan, the heirs and legal representatives of the Maharaja but also advertised the instant petition in newspapers. Excepting Mr. <NAME> no one else has filed any Affidavit-in-opposition.

12. According to the learned counsel appearing on behalf of the petitioners, question of the decree dated 5th May, 1959 has not yet been time barred inasmuch as the order which was passed on 17th December, 1962 is still in force. Since 27th July, 1959 when the interim order was passed the decree dated 5th May, 1959 became inexecutable and the benefit of Section 15 of the Limitation Act is still available. It cannot be said, according to him, that the Sarafs could have nominated the <NAME> as it was the relevant time admittedly the <NAME> and Sarafs were at loggerheads which had resulted in proceedings being filed under Sections 397 and 398 of the Companies Act, 1956.

13. He further contended that the deeree dated 5th May, 1959 is binding on the <NAME> of Burdwan and also his heirs and legal representatives. Therefore, they are bound by the said decree. There cannot be any dispute to that effect. There was no scope for executing the decree dated May 5, 1959. The order of injunction restrained <NAME> and his legal heirs and legal representatives from nominating any one excepting the <NAME>. The <NAME> group has not nominated <ORG> for purchase of the subject property in its entirety. The settlement requires the property to be conveyed to the three groups--<ORG>. <NAME>s and <NAME> in agreed proportions. The <NAME> Group has now agreed to sale of the property by <NAME> or his successors-in-interest partially in favour of <NAME>, partially in favour of <ORG> and retaining the balance in favour of the <NAME> Group. Consequently there was no scope for exclusive nomination of the <NAME> earlier as was permissible under the interim order dated 17th December, 1962.

14. According to him, it cannot be held that there is no interim order of injunction in view of the fact when the suit was restored, the interim order revived and is still subsisting. He further drew my attention to paragraph 2 of the affidavit filed by <NAME> and submitted that in the affidavit he has admitted that he has no right to the premises. The executors and grand-children have not come forward to oppose the prayers inspite of advertisement and inspite of service. Accordingly, he submitted that in any event the terms of settlement, treating as an agreement, can also be implemented particularly as the entire consideration has been paid and deposited in fixed deposit.

15. Mr. <NAME> appearing on behalf of the respondent No. 3(a) submitted that the decree directs that the transaction would be completed and the deed of conveyance would be signed and registered against each payment within 31st May, 1959 and no payment having been made within 31st May, 1959. the decree is not executable by the plaintiff in the said suit or by their nominee. He further contended that an amount was deposited admittedly pursuant to an order of the <ORG> in the year 1962 and not within the time granted by the decree. Therefore, the decree-holder nor any assignees are entitled to get benefit out of the said decree. He further submitted that the agreement which was entered into between <ORG>s on the one hand and <ORG> on the other hand, cannot bind the Maharaja of Burdwan or his heirs since they were not a party to the said agreement. The present suit was filed by the <ORG> against <ORG> for specific performance of the agreement dated January 13, 1953.

16. According to Mr. <NAME>, on 27th July, 1959 order was passed on the interlocutory application of the plaintiff in the present suit. According to him, registration of conveyance and the payment were directed to be completely within 31st May, 1959 in terms of the decree dated 5th May, 1959. Therefore, if any, nomination would have to be done prior to May 31, 1959. The plaintiffs in this suit have no right to apply for execution of the conveyance on the basis of any nomination subsequently made and there was no order of injunction prior of 27 July, 1959. Furthermore, the said order dated 27th July, 1959 did not injunct <NAME> from nominating any person in whose favour conveyance was to be executed. According to him, if time is the essence of the contract, in that event the performance has to be made within the time and not otherwise. Accordingly, he submitted that payment not having been made in terms of Clause 8 of the decree within the time mentioned, after 40 years the decree cannot be said to be alive. He further relied upon a judgment [ <CITATION> ].

17. He further contended that the injunction order did not prevent the present defendant No. 3 from executing any conveyance in favour of the petitioner. According to him, injunction order was passed restraining the respondent No. 3 who was the predecessor-in-interest being <NAME> of Burdwan. He also contended that there was impediment to execute the conveyance in favour of the petitioners at the instance of the respondent. Nos. 1 and 2. Accordingly, he submitted that the order of injunction does not help the petitioner in the present application who are heirs of the original petitioner from being nominated by the respondent Nos. 1 and 2. He further contended that at the time of the dismissal of the suit the injunction order automatically vacated unless the order of injunction is restored specifically that will not continue. He further relied upon a judgment ( <CITATION> ) in support of his such contention.

18. After hearing the parties it appears to me that the following questions have to be decided in this application that whether after the revival of the suit the interim order already passed in the interlocutory application will be revived on the setting aside of the dismissal of the suit in question and if so whether the injunction order is still subsisting and the petitioner can get benefit out of the same. After considering the decisions cited before me on behalf of the parties, it appears to me that the said question was decided by the Full Bench decision of <ORG> reported in AIR 1935 Mad 365 ( <CITATION> .). It was held that on the restoration of the suit, all ancillary orders are restored without any further orders. When an order dismissing a suit for default is set aside on an application for that purpose, the suit remains as it was on the date it was dismissed, and all proceedings taken up to that date must be deemed to be in force when the dismissal is set aside. All interlocutory orders will be revived on the setting aside on the dismissal and similarly any order passed at the interlocutory stage which was subsisting as on the date of the dismissal, will also be revived. Therefore, there cannot be any doubt at this stage to hold that by virtue of the injunction order which was passed by the <ORG> the petitioners were restrained from taking any step in respect of the transfer of the property in question. Therefore, in my opinion, the decree dated 5th May, 1959 has not yet been lime-barred in view of the order passed on 17th December, 1962 which is still In force and the petitioners are also bound to get the benefit under, Section 15 of the Limitation Act. There also cannot be any dispute that the decree dated 5th May, 1959 is binding on <NAME> and his heirs and legal representatives. Therefore, there cannot be any bar at this stage to hold that the order passed in this suit on 27lh July. 1959 which was still subsisting, can be vacated by this <ORG> and order can be passed directing <NAME> and His heirs and legal representatives to execute the conveyance in accordance with the said deed In respect of Tiretta Bazar Property being the premises No. 22 (also known as 22B). <NAME>. Kolkata in favour of the petitioners and M/s. Orr. Dignam & Company is hereby directed to hand over the said amount of Rs. 2,50,000/- and Rs. 3,00,000/-, the amounts so deposited with them in terms of the order dated 17th December, 1962 with accrued interest thereon to Maharaja of Burdwan and/or his heirs and legal representatives towards the full and final payment of the price of the said property.

For the reasons stated hereinabove, there will be order in terms of prayers (b), (c), (d), (e), (g) and (h).


PETITIONER: <ORG> Vs. RESPONDENT: STATE OF MADHYA PRADESH DATE OF JUDGMENT07/03/1988 BENCH: <NAME>, <NAME> (J) BENCH: <NAME>, <NAME> (J) RANGNATHAN, S. CITATION: 1988 AIR 1166 1988 SCR (3) 103 1988 SCC (3) 82 JT 1988 (2) 95 1988 SCALE (1)721 CITATOR INFO : RF 1988 SC2018 (10) ACT: Arbitration Act , 1940-Whether a contractor can claim extra cost and compensation towards rise in prices of material and labour on account of delay on the part of other party to contract in discharge of its obligations and allotment of work under the contract and invoke arbitration clause in contract and ask for a reference to arbitrator under section 20-Of . HEADNOTE: % The petitioner in this application under Article 136 of the Constitution entered into a contract with the respondent <ORG> for construction work. The contract could not be completed within the stipulated time because of alleged gross delay on the part of the <ORG> in allotment of work and discharge of its obligations under the contract. The petitioner incurred unforeseen expenditure and approached the Superintending Engineer for payment. Upon refusal of the Superintending Engineer to pay and also to refer the matter to arbitration, the petitioner moved the District Judge under Section 20 of the Arbitration Act, ('the Act') for the filing of the arbitration agreement and for reference of the dispute to arbitration. The District Judge directed the respondent <ORG> to file the agreement, and made a reference for specific question to the arbitration. <ORG> dismissed the <ORG>'s appeal against the order of the District Judge. Thereafter, an arbitrator was appointed, who made an award partly allowing the petitioner's claim. The award was filed in the <ORG> of the District judge, who made the award a rule of the court. The respondent appealed to <ORG>. <ORG> remanded the matter to the District Judge for a fresh decision. The District Judge accepted the respondent's objections and set aside the award. <ORG> dismissed the appeal of the petitioner. The petitioner then moved this <ORG> for relief by this petition for special leave. Dismissing the petition, the <ORG>, ^ HELD: The District Judge rightly found that the question regarding extra-cost was a general question and not a specific legal question and the decision of the arbitrator was not final. The arbitrator 104 misconducted himself in allowing the claim without deciding the objection of the <ORG>. In view of the specific clauses, the petitioner was not legally entitled to claim for extra- cost. The decision of this <ORG> in <CITATION> ,  2 SCR 48 was of no avail on this point. If no specific question of law is referred, the decision of the arbitrator on that question is not final however much it may be within his jurisdiction and indeed essential for him to decide the question incidentally. The arbitrator is not a conciliator and cannot ignore the law or mis-apply it in order to do what he thinks is just and reasonable. The arbitrator is a <ORG> selected by the parties to decide their disputes according to law and so he is bound to follow and apply the law, and if he does not, he can be set right by the <ORG> provided his error appears on the face of the award. In this case, the contractor having contracted, could not go back to the agreement simply because it did not suit him to abide by it. [111C-F] The petitioner had argued that since specific issues had been framed and referred by the District Judge to the arbitrator, the same had been answered by a non-speaking award and there was no mistake of law apparent on the face of the record, and the District Judge had erred in setting aside the award by looking into the terms of the contract which neither formed part of the award nor were appended to it. The <ORG> did not agree. This being a general question, the District Judge rightly examined the question and found that the petitioner was not entitled to claim for extra cost in view of the terms of the contract, and the arbitrator misdirected himself by not considering this objection of the <ORG> before giving the award. [112B-C] The limits of the jurisdiction of the <ORG> to challenge the award are well-settled. While considering the objection under section 30 of the Act, the <ORG> does not act as an appellate <ORG>; it can only interfere with the award if the arbitrator misconducts himself or the proceedings or if the award has been made after the issue of an order by the <ORG> superseding the arbitration or if the arbitration proceedings have become invalid under section 35(c) of the Act, or the award has been improperly procured or is otherwise invalid. If, a specific question is submitted to the arbitrator and he answers it, the fact that the answer involves an erroneous decision in point of law, does not make the award bad on its face so as to permit it being set aside. [112E-F; 1l3A] <ORG> was right that the District Judge was entitled to examine the contract in order to find out the legality of the claim of the petitioner regarding extra cost towards rise in prices of material and 105 labour. Clauses 2.16 and 2.4 stipulated that the contractor had to complete the work inspite of rise in prices of materials and also rise in labour charges at the rates stipulated in the contract. There was a clear finding of the arbitrator that the contract was not rendered ineffective in terms of section 56 of the Contract Act due to the abnormal rise in prices of materials and labour. This being so and the contractor having completed the work, it was not open to him to claim extra cost towards rise in prices of material and labour. The arbitrator misdirected himself in not deciding this specific objection raised by the <ORG> regarding the legality of the extra claims of the petitioner. It has to be born in mind that there were specific clauses which barred consideration of extra claims in the event of price escalation. [113D-F; 114B] The award was properly set aside by the District Judge and <ORG> was right in the view it took and there was no ground to interfere. [113G] <CITATION> ,  2 SCR 48; <CITATION> ,  2 SCR 793; <CITATION> , A.I.R. 1973 S.C. 1338; <CITATION> ., A.I.R. 1923 P.C. 66; Re. King and Duveen,  2 K.B. 32; Government of Kelantan v. <ORG>,  AC 395; <CITATION> ,  1 SCR 633; Saleh Mohd. v. Nathoo Mal, 54 I.A. 427; <CITATION> ,  A.C. 592; <CITATION> ,  3 SCR 282 and <CITATION> ., 2 S.C.C. 680, referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Special Leave Petition (Civil) No. 13180 of 1985.

From the Judgment and order dated 17.4.1985 of <ORG> in Misc. F.A. No. 252 of 1981.

<NAME> and <NAME> for the Petitioner. The Judgment of the Court was delivered by <NAME>, J. This is an application under Article 136 of the Constitution for leave to appeal to this Court from the judgment and order of <ORG> dated 17th April, 1985. In order to appreciate the points involved, it is neces-

sary to state that the petitioner entered into a contract dated 31st March, 1970 with respondent, State of Madhya Pradesh for the construction of Rip Rap on right bund of Masonary Dam of Tawa Project. The contract could not be completed within the stipulated time because of alleged gross delay on the part of the State, according to the petitioner, in allotment of work and discharge of its obligations under the contract. The petitioner incurred unforeseen expenditure, it is claimed, to the tune of Rs.5,29,812 and approached the Superintending Engineer for payment. Upon refusal of the Superintending Engineer to pay the claim and his refusal to refer the matter to arbitration, the petitioner moved the learned District Judge under section 20 of the Arbitration Act, 1940 (hereinafter called 'the Act') for filing of the arbitration agreement and for reference of the disputes to the arbitration. On 24th April, 1976 the learned District Judge allowed the petitioner's application and directed the respondent, State of Madhya Pradesh to file the agreement in <ORG> and made a reference for specific question to the arbitration. <ORG> on 22nd September, 1976 dismissed the State's appeal against the order of the District Judge. Thereafter in March, 1977 Retired Engineer-in-Chief, <NAME> was appointed arbitrator. There was an award dated 29th October, 1978 on all the issues referred, partly allowing the petitioner's claim. The award was filed in <ORG> and the respondent filed objections to the award under sections 30 and 33 of the Act and the petitioner filed replies. The District Judge made the award a rule of the <ORG>. The respondent appealed to the High <ORG>. <ORG> remanded the matter to the District Judge for fresh decision. The District Judge accepted the objections and set aside the award. <ORG> by the impugned judgment dismissed the appeal of the petitioner. It is from this judgment of the High <ORG> that the petitioner seeks leave to appeal to this <ORG>.

As mentioned hereinbefore by the impugned judgment and order of <ORG> the award has been set aside. The agreement contained an arbitration clause. The work, however, could not be completed within the stipulated time, the period of contract was extended. The contractor attributed delay on the part of <ORG> whereas <ORG> blamed the contractor. This was a disputed question. While the work was in progress, the contractor was required to meet extra expenditure on labour charges and materials due to revision in wage scales and escalation of prices. Alterations and substitutions of works also led to extra expenses. There were certain items for which rates were not provided but all the same work had to be done. The contractor therefore, advanced claims for compensation. The Superintending Engineer dismissed the claims on the ground that the claims were barred under clause 3.3.15. He also held that some of the claims were not covered by the contract. The contractor sought to invoke the arbitration clause but the <ORG> sought to oppose on the ground that the dispute attracting the arbitration clause had not arisen. It was contended that the claim was barred by clause 3.3. 15 and it had not been made within the time. It was contended further that there was only one contract and there being no separate agreement for extension of period of the contract the rate as provided in the original contract alone was permissible. As there was no separate contract and no reference under clause 3.3.29 could be made for the enhanced period beyond the period of the contract. Relevant clauses of the contract were as follow:

"3.3.15 Clause 15. Time limit for unforseen claims: Under no circumstances whatever shall the contractor be entitled to any compensation from Government on any account unless the contractor shall have submitted claim in writing. to the Engineer-in-Charge within one month of the cause of such claim occurring.

3.3.29 Clause 29.

Decision of Superintending Engineer, to be final except where otherwise specified in the contract. The decision of the Superintending Engineer of the <ORG> for the time being shall be final, conclusive and binding on all parties to the contract upon all question relating to the meaning of the specification, design drawings and instructions hereinbefore mentioned and as to the quality of workmanship or material used on the work or as to any other question, claim, right matter or thing whatsoever, in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instructions, orders, or those conditions or otherwise concerning the work of execution or failure to execute the same, whether arising during the progress of the work, or after the completion or abandonment thereof.

Provided that if the contractor is dissatisfied with the final decision of the Superintending Engineer in respect of any matter, he may within 28 days after receiving notice of such decision give notice in writing to the Superintending Engineer requiring that the matter may be referred to the arbitration and furnishing detailed particulars of the dispute or difference specifying clearly the point at issue. If the contractor fails to give such notice within the period of 28 days as stipulated above the decision of the Superintending Engineer already given shall be conclusive and binding on the contractor.

In case an arbitration is to be held it shall be effected by an arbitrator to be appointed by <ORG> whose decision shall be final, conclusive and binding.

If the work under the contract has not been completed when a dispute is referred to arbitration work shall continue during arbitration proceedings if it is reasonably possible and no payment due to contractor should be with held on account of arbitration proceedings unless it is required by the arbitrator 3.3.32 Clause 32. Action where no specification:

In case of any class of work for which there is no such specification as is mentioned in Rules, such work shall be carried out in accordance with the specification approved by Superintending Engineer/Chief Engineer, or application to works in the district and the event of there being no such specification, then in such case the work shall be carried out in all respect in accordance with the instructions and requirements of the Engineer-in-Charge.

3.3.33 Clause 33. Definition of work:

The expression "works" or "work" where used in these conditions shall, unless there by something either in the subject or context repugnant to such construction be constructed and taken to mean the works by or by virtue of the contract contracted to be executed, whether temporary or permanent, and whether original, altered, substituted or additional. 3.3.34 Clause 34. Claim for quantities entered in the tender or estimate:

Quantities shown in the tender are approximate and no claim shall be entertained or work executed being either more or less than those entered in the tender estimate."

The learned single Judge as mentioned hereinbefore of <ORG> after exhaustive discussion dismissed the appeal and upheld the order. Being aggrieved the petitioner went up in appeal before <ORG> and <ORG> on consideration of the matter dismissed the appeal. <ORG> considered the following issues raised before the District Judge:

1. Whether the contractor had incurred extra costs towards wetting and washing of stones used in masonry of Group-II Tawa Masonry Dam?

2. Was the petitioner entitled to payment of this extra costs of Rs. 1.20,355?

3. Whether the petitioner contractor had to incur extra cost of material and labour to the tune of Rs. 14,72,456 within the contract period for executing work assigned to it?

4. Whether the contractor had incurred extra cost of Rs.8,84,336 for the work beyond the contract period due to unforeseen circumstances?

5. Whether the petitioner's claim on both the counts was in whole or in part of it was barred by time in terms of clause 3.3. 15?

6. Whether the contract was rendered ineffective in terms of section 56 of the Contract Act due to unexpected change in the market rate of material and labour charges?

7. Was the claim not entertainable in accordance with the terms' of the contract under clause 3.3.32, 3.3.33 and 3.3.34 during the extended period of contract?

8. Was the work delayed because of the presence of shale-zone in the foundation which factor was not made known to the contract?

9. Whether the contractor was entitled to extra costs of damages for the delay caused on account of shale-zone? <ORG> came to the findings as follows:

1. The contractor did incur expenditure on wetting and washing of stones in Masonry Group-II, Tawa Masonry Dam but this was according to agreement.

2. The petitioner is not entitled to the payment of the extra costs of Rs.1,20,355.

3. The petitioner/contractor did incur an extra cost of Rs.14,72,456 within the contract period for executing the assigned work.

4. The petitioner/contractor did incur an extra cost of Rs.6,81,796 for the work done beyond the contract period due to unforseen circumstances.

5. The petitioner is entitled to the claim to the extent of Rs.2,65,000 against Issue No. 3 and Rs.6,81,796 against Issue No. 4 above and the same is not barred by time in terms of clause 3.3.15.

6. The contract was not rendered ineffective in terms of section 56 of the Contract Act due to abnormal rise in the market rates of materials and labour.

7. The claim under reference cannot be ruled out merely be cause of the provisions of clause 3.3.32, 3.3.33 and 3.3.34.

8. Yes, the work was delaved due to the presence of shale-zone in the foundations, a factor which was unforeseen and was not made known to the contractor.

9. The contractor is entitled to claim extra cost due to the delay caused on account of the shale-zone in foundations.

<ORG> felt that the four factual issues decided by the District Judge were more or less by the agreement and therefore, <ORG> did not deal with these. So far as three legal issues which were referred to him, namely, whether the claim was barred under clause 3.3. 15, the contract was rendered ineffective in terms of  section 56 of the Contract Act due to abnormal rise in the market rate of material and labour and the claim not entertainable under clause 3.3.32, 3.3.33 and 3.3.34. <ORG> considered whether the appellant was entitled to extra cost towards rise in prices of materials and labour within and beyond the contract period. <ORG> noted that the learned District Judge held that since three legal issues were specifically referred to the arbitrator and therefore his decision had become final and binding on the parties and cannot be re-agitated before the <ORG>. Regarding the remaining issues, the <ORG> had taken objection while opposing the application under section 20 that the appellant was not entitled to extra cost for material and labour in terms of the contract but the <ORG> directed that this matter had to be agitated before the arbitrator and the application under section 20 could not be dismissed on the ground that the claim would not ultimately succeed. The District Judge found and in our opinion rightly that the question regarding extra-cost was a general question and not a specific legal question and the decision of the arbitrator was not final one. The arbitrator misconducted himself in allowing the claim without deciding the objection of the <ORG>. In view of the specific clauses, the appellant was not legally entitled to claim for extra cost. The decision of this <ORG> in <CITATION> ,  2 SCR -18 is of no avail on this point. If no specific question of law is referred, the decision of the arbitrator on that question is not final however much it may be within his jurisdiction and indeed essential for him to decide the question incidentally. The arbitrator is not a conciliator and cannot ignore the law or misapply it in order to do what he thinks is just and reasonable. The arbitrator is a tribunal selected by the parties to decide their disputes according to law and so is bound to follow and apply the law, and if he does not he can be set right by the <ORG> provided his error appears on the face of the award. In this case, the contractor having contracted, he cannot go back to the agreement simply because he does not suit him to abide by it. The decision of this <ORG> in <CITATION> ,  2 SCR 793 may be examined. There it was observed that a contract is not frustrated merely because the circumstances in which the contract was made, altered. The Contract Act does not enable a party to a contract to ignore the express covenants thereof, and to claim payment of consideration for performance of the contract at rates different from the stipulated rates, on some vague plea of equity. The parties to an executory contract are often faced, in the course of carrying it out, with a turn of event which they did not at all anticipate, a wholly abnormal rise or fall in prices, a sudden depreciation of currency, an unexpected obstacle to execution, or the like. There is no general liberty reserved to the courts to absolve a party from liability to perform his part of the contract merely because on account of an uncontemplated turn of events, the performance of the contract may become onerous.

It was argued on behalf of the appellant that since specific issues 13 were framed and referred by the District Judge to the arbitrator, the same had been answered by a non-speaking award, there is no mistake of law apparent on the face of record and the District Judge erred in setting aside the award by looking into the terms of the contract which it was submitted, neither formed part of the award nor appended to it. We are unable to agree. This being a general question, in our opinion, the District Judge rightly examined the question and found that the appellant was not entitled to claim for extra cost in view of the terms of the contract and the arbitrator misdirected himself by not considering this objection of the <ORG> before giving the award.

<CITATION> , A.I.R. 1973 S.C. 1338, it was held that where an arbitrator is called upon to decide the effect of the agreement, he has really to decide a question of law, i.e. Of interpreting the agreement, and hence, his decision is not open to challenge. This was also a decision against a reasoned award but since the reference was to a specific question of law, the decision of the arbitrator, it was held, was not open to challenge. The limits of the jurisdiction of the <ORG> to challenge the award are well- settled. While considering objection under section 30 of the Act, the <ORG> does not act as an appellate court, it can only interfere with the award if the arbitrator misconducts himself or the proceedings or if the award has been made after the issue of an order by the <ORG> superseding the arbitration or if the arbitration proceedings have become invalid under section 35(c) of the Act or the award has been improperly procured or is otherwise invalid. <ORG> in <CITATION> ., A.I.R. 1923 P.C. 66 has laid down the extent of the jurisdiction of the <ORG> to set aside an award on the ground of an error in making the award. It has been reiterated that the award of the arbitrator may be set aside on the ground of an error on the face thereof only when in the award or in any document incorporated with it as for instance, a note appended by the arbitrator, stating the reason for his decision, there is found some legal proposition which is the basis of the award and which is erroneous. See also in this connection Re. King & Duveen,  2 K.B. 32 and Government of Kelantan v. <ORG>,  A.C. 395, if how ever, a specific question is submitted to the arbitrator and he answers it, the fact that the answer involves an erroneous decision in point of law, does not make the award bad on its face so as to permit of it being set aside. See also the observations of this <ORG> in <CITATION> ,  1 SCR 633. It is well settled that the contract remained part of the award. <ORG> in Saleh Mohd. v. <NAME>, 54 I.A. 427 considered an award in which the arbitrator recited a contract made between the parties and the dispute arising under it. It was contended that the contract was incorporated in the award by its reference and so the award disclosed an error of law in construing the terms of the contract. But that contention was negatived. It was held that the reference to the contract in the award was to earmark the disputes between the parties and was not incorporated into the award. In <ORG> v. <ORG>  A.C., 592, it was held that if an award referred to the terms of a clause in the contract, the clause though not set out in full must be taken to be incorporated in it. This <ORG> has reiterated in <CITATION> , 119711 3 SCR 282 that mere reference to the contract in the award is not to be held as incorporating it.

In the aforesaid light, we are of the opinion, <ORG> was right that the District Judge was entitled to examine the contract in order to find out the legality of the claim of the appellant regarding extra cost towards rise in prices of material and labour. As was pointed out by the learned District Judge clauses 2.16 and 2.4 stipulated that the contractor had to complete the work inspite of rise in prices of materials and also rise in labour charges at the rates stipulated in the contract. There was a clear finding of the arbitrator that the contract was not rendered ineffective in terms of section 56 of the Act due to abnormal rise in prices of material and labour. This being so and the contractor having completed the work, it was not open to him to claim extra cost towards rise in prices of material and labour. The arbitrator misconducted himself in not deciding this specific objection raised by the <ORG> regarding the legality of extra claim of the appellant.

In that view of the matter, the award, in our opinion, was properly set aside by the learned District Judge and <ORG> was right in not interfering with it.

The question about specific reference on a question of law was examined by this Court recently in the case of <CITATION> ,  2 S.C.C. 680. There it was observed that if the agreed fact situation, on the basis of which agreement was entered into, ceases to exist, the agreement to that extent would become otiose. If rate initially quoted by the contractor became irrelevant due to subsequent price escalation, it was held in that case that contractor's claim for compensation for the . excess expenditure incurred due to the price rise could not be turned down on ground of absence of price escalation clause in that regard in the contract. Agreement as a whole has to be read. Reliance was placed very heavily on this decision on behalf of the appellant before us.. It has to be borne in mind that in the instant case there are specific clauses referred to hereinbefore which barred consideration of extra claims in the event of price escalation. That was not so in <ORG> and <ORG>'s case. That made all the difference. The basis of bargain between the parties in both these two cases were entirely different.

In the aforesaid view of the matter we are of the opinion that <ORG> was right in the view it took and there is no ground to interfere. The petition for special leave fails and is accordingly dismissed.

S.L. Petition dismissed.