P L D 1959 (W (PLP)

HABIBULLAH, J.

This is an appeal by Muhammad Akbar Khan plaintiff against the order of Civil Judge 1st Class Lahore, whereby his suit for the recovery of Rs. 88,447-7-3 against the Province of West Pakistan '(defendant), hereinafter called "the Government", was dismissed. As the parties were left to bear their own costs, the Government has also filed cross-objections for the recovery of costs. The case has a fairly long and chequered history behind it, but it is not necessary to narrate all the facts in detail, for now in appeal the scope of controversy has been narrowed down to one issue, namely, whether the suit is within limitation. Briefly stated the material facts of the case are, that consequent upon the disturbances of 1947 the then Excise Commissioner, West Punjab formulated a scheme with the approval of the Provincial Government for the issue of temporary special licenses on fixed fees for the sale of country liquor, and on the application of the appellant such licenses were granted to him, once for the period from the 1st October 1947 up-till the 31st March 1948, and again from the 1st April 1948 up-till the 30th September 1948. The procedure was that the appellant used to purchase liquor from Rawalpindi Brewery on payment, and then to sell the same to the' public in Lahore city and cantonment on rates fixed by the Government. After the sale, he would first deduct the price of the liquor and then out of the balance, representing the net profit, he would deposit from time to time the stipulated license-fees in the Government treasury, retaining the remainder as his own share of the profit. In the trial Court, the appellant's case was, that the Government allowed him 10% out of the net profit as commission-fee, but according to the defendant the appellant used to pay fixed license-fees to the Government. It has, however, been held by the trial Court and now conceded before us by the learned counsel for the appellant, that his client was not a Commission Agent but used to deposit in the treasury license-fees fixed by the Government. From the 1st October 1948, the West Punjab Government introduced prohibition in the Province, and in consequence the Muslims were debarred from selling liquor. As a result, the liquor stock of the appellant valued at Rs. 66,837-12-0 was handed over under the instructions of the Excise Department to a Non-Muslim Firm, Messrs D. P. Edulji & Co. Lahore, which disposed of the same in due course and deposited the sale-money in the treasury to the Government's account. In the meantime, the Government issued two demand notes to the appellant, one for Rs. 82,000 in respect of unpaid license-fees up to the 31st March 1948, and the other for Rs. 61,439-8-0 in respect of unpaid license-fee up-till the 30th September 1948, the total bang Rs. 1,43,439-8-0. Since the appellant failed to pay the amount, coercive measures were taken against him, and consequently he was arrested and sent to jail sometime in 1949. The appellant filed a suit in the Court of the Civil Judge 1st Class Lahore on the 4th May 1949, for a declara tion that the temporary licenses issued to him were illegal and invalid, the Excise and Taxation Commissioner not being com petent to frame the new scheme and to issue licenses, and also for a consequential relief of perpetual injunction restraining the Government from realising the amount of the above-mentioned two demands. He further prayed, that the demand notes should not be enforced against him without accounting for the price of the liquor stock taken over from him and without determining the amount of compensation due to him for the short supply of liquor up to the 31st March 1948. The suit was dismissed on the 12th December 1950. The plaintiff, however, succeeded in his appeal with the Senior Civil Judge Lahore, who held that the temporary licenses issued to him by the then Excise and Taxation Commissioner were void and illegal. The Government filed a Second Regular Appeal in the High Court. The same was accepted, and it was held that the licenses were valid, and consequently the order of the trial Court was restored. The appellant thereafter preferred a Letters Patent Appeal in this Court, which was accepted on the 4th December 1953, and the temporary licenses were declared to be null and void. It was, however, held that the principles of section 65 of the Contract Act could be invoked by the Provincial Government, and that the Court could order the appellant to hand over to the Government the benefit which he had derived from the sale of the liquor, which he could not have sold without a license. In the result, the case was remanded to the trial Court to assess the liability of the appellant towards the Government. During the course of the trial of the case, a statement of accounts on behalf of the Government was submitted on the 5th June 1954, which is Exh. P.

10. In this statement of accounts, purporting to have been signed by the Deputy Excise and Taxation Commissioner, it was admitted that the total amount due to the appellant on account of the excess payments calculated on the actual sales and the price of the surrendered stock, worked out to a sum of Rs. 57,808-4-3. Accordingly, the declaration prayed for was granted on the 26th June 1954, that the licenses were void and invalid, and that the demand notes could not be enforced against the appellant. After this decision the appellant instituted the present suit against the Government on the 8th August 1955 for the recovery of a sum of Rs. 88,447-7-3 comprising two items, namely, one of Rs. 66,837-12-0 in respect of the sale price of the surrendered stock of liquor, and another of Rs. 21,609-11-3 in respect of overpayment of the license-fees to the Government. The suit was hotly contested, and on the pleadings of the parties the following issues were framed : - (1) Is the suit barred by Order II, Rule 2, C. P. C. ? (2) Is the suit within limitation ? (3) Whether the plaintiff's claim for the excess payment of Rs. 21,609-11-3 as mentioned in para 2 of the plaint read with the plaintiff's statement today, has been admitted by or on behalf of the defendant to, have been so received-? If so, what is its effect ? (4) If issue No. 3 is proved, is the defendant not bound by the same ? (5) In case issue No. 3 be not proved, or in case issue No. 4 is proved, whether the plaintiff had made an excess pay ment of Rs. 21,609-11-3 to the defendant on account of the license-fees ? (6) Did the defendant take over the stock of liquor mentioned in para 3 of the plaint and delivered the same to Messrs D. P. Edulji & Co. Ltd. Lahore ? (7) Whether the defendant had admitted to have received from M/s. D. P. Edulji & Co.- the sum of Rs. 66,837-12-0 on account of the plaintiff's stock made over to him ? (8) If issue No. 7 be proved, is the defendant not bound by ' the said admission ? (9) Whether the Government has admitted the 'plaintiff's claim to the extent of Rs. 36,198-9-0 on account of the plaintiff's stock made over to M/s. D. P. Edulji & Co. ? (10) If issue No. 9 be proved, is the defendant not bound by the said admission ? (11) Did the defendant receive from M/s. D. P. Edulji & Co. a sum of Rs. 66,837-12-0 on account of the plaintiff's stock, and is the plaintiff entitled to recover the said amount from the defendant ? Issue No. 1 was decided against the defendant. Under issue No. 2, the Court held that the case was governed by Article 62 of the Limitation Act, and that the suit, having been brought after more than 3 years from the date when the cause of action accrued to the plaintiff, was barred by limitation. Issues No. 3, No. 5, No. 6, No. 7, No. 9 and No. 11 were answered in the affirmative. Issues No.

4. No. 8 and No. 10, however, were decided in favour of the defendant, and it was held that the admissions, having been made by a person not holding the necessary authority, were not binding on the defendant. Conse quently, in view of the finding on issue No. 2, the suit was dismissed. The first objection raised by Sardar Muhammad Iqbal appear ing fox the appellant was, that the burden of proof of issue No, 2 was wrongly placed on his client. We do not see any force in the argument for the simple reason, that when a person brings a suit and his claim is denied by the other party, it is his duty to show that the suit was instituted within the prescribed period of limitation. In the present case, it was enough for the defendant A to completely deny the plaintiff's claim. We cannot accept the learned counsel's contention, that it lay on the defendant to mention the date on which the cause of action accrued to the plaintiff, or the precise Article of the Limitation Act applicable to the suit. We, therefore, repel the contention. We now proceed to examine the crucial question, as to what provision of the Limitation Act would be applicable to the case. It has been urged by the learned counsel for the appellant that Article 62 applied by the trial Court does not cover the present case. In our opinion, the objection must prevail. Article 62 is applicable to a suit " for money payable by they defendant to the plaintiff for money received by the defendant for the plaintiff's use ". But that is not the case here, and it has frankly conceded by Mr. Rizvi that Article 62 is out of question. In the present case, it is common ground between the parties that the defendant was retaining the plaintiff's money not for the plaintiff's use but for the purpose of adjustment towards the part-payment of the money payable by the plaintiff to the defendant. Therefore, it is obvious that Article 62 is inapplicable. Attempt was made to bring the case under Article 64, but on consideration of the wording of this Article we are unable to accept the argument, because there was no " stating of accounts " between the parties, nor was any such statement signed by the defendant, or any person competent to sign on its behalf. Exh. P. 10, which purports to have been prepared by the Deputy Excise and Taxation Commissioner on the 5th June 1954 and was filed in the trial Court on the 17th June 1954, provided to the learned counsel for the appellant an argument that the document was a " statement of accounts " between the parties, and as such under Article 64 the period of limitation would run from that date, namely, the 5th June 1954, and the suit will therefore be well within time. It is true that in this document the Deputy Excise and Taxation Commissioner admitted that the total amount payable to the appellant on account of the excess payments and the sale proceeds of the surrendered stock of liquor worked out to a total of Rs. 57,808-4-3, but it referred only to the money due to the appellant and not to the claim of defendant amounting to Rs. 1,43,439-8-0, which sum was payable by the plaintiff to the defendant, in respect of the license-fees. It is not denied that while submitting this so-called statement of accounts the Deputy Excise and Taxation Commissioner had not waived the defendant's claim against the appellant. Therefore, by no stretch of language this statement of accounts represents " money payable to the plaintiff for money found to be due from the defendant to the plaintiff on accounts stated between the parties ", because the sum of Rs. 57,808-4-3 mentioned in the document was not actually outstanding against the defendant or payable to the plaintiff. In fact, it was one-sided account representing the money which was due to the plaintiff without mentioning the amount which the plaintiff had to pay to the defendant. There is also a further legal hurdle in the way of the appellant. Article 64 requires that the accounts must be signed either by the defendant, or his agent duly authorised in this behalf. It is not the appellant's case, and in fact it could not have been his case, that the Deputy Excise and Taxation Commissioner, who signed the so-called statement of accounts, was an agent of the respondent duly authorised in that behalf. The document (Exh. P. 10) relied upon by the appellant's counsel is in the nature of an admission under section 18 of the Evidence Act, but it will be relevant only, if the admission was made either lay the Defendant or by his agent, who can be regarded as expressly or impliedly authorised to make such admission. Under section 49 of the Government of India Act, 1935, which was applicable at the relevant time, the executive authority of a Province had to be exercised by the Governor and any person who wanted to bind the Governor by his admission, had to show the requisite authority. It is admitted that neither the Deputy Excise and Taxation Commissioner, who signed the document, nor Mehdi Khan, Excise Sub-Inspector, who produced and proved the same in the trial Court, was authorised by the Government to make the admission. Issues No. 4, No. 8 and No. 10 have been found in favour of the defendant by the trial Court, and it has been held that the defendant was not bound by the admissions. Mr. Iqbal has not challenged the correctness of these findings in his arguments at the bar. Next it was contended by Mr. Iqbal that if Article 64 was not applicable, then his case would be covered by section 10 of the Limitation Act. This section clearly contemplates cases of express trust created for a specific purpose. The argument of the learned counsel for the appellant was, that the money of the, appellant in the hand of the respondent was in the nature of a trust. We find it extremely difficult to agree with him. Neither the appellant had handed over any money to the respondent as a trust for any specific purpose, nor had the respondent retained the appellant's money as a trustee. It will be recalled that a sum of Rs. 1,43,439-8-0 was claimed by the respondent against the appellant in respect of the unpaid license-fees, and in consequence, payment of the money due to the appellant was withheld by the respondent in adjustment towards part-payment of their claim, and the money was never retained as a trust. In fact, the respondent has never admitted that any money was payable to the appellant as a balance after the accounts were made up. The language of section 10 leaves no room for doubt that unless the property of one person is transferred to another as a trust for a specific purpose, the transaction cannot be regarded as a trust for the purposes of that section. We are firmly of the view that no trust for a specific purpose was created in the present case, and as such section 10 is not applicable. Since Mr. Iqbal has not pointed out to us any other specific provision of the Limitation Act applicable to the case, we cannot but accept the contention of Mr. Rizvi, that in the circumstances pf the ease Article 120 would apply. The period of limitation prescribed by this Article is 6 years, and the question which has to be answered is, as to when the right to sue accrued to the appellant. According to Mr. Rizvi, the period of limitation in respect of the sum of Rs. 21,609-11-0 pertaining to the excess pay ments made by the appellant would run from the date when the period of license ultimately expired on the 30th September 1948, because the excess payment was admittedly made before that date, the prohibition having been introduced from the 1st October 1948, and in respect of the sum of Rs. 66,837-12-0 representing the sale proceeds of the surrendered liquor stock, the period of limita tion would run from the date when the stock was actually delivered, or sold. As regards the first item, there is no dispute between the parties that the excess payment was made before the 1st October 1948, while the present suit was instituted on the 8th August 1955, that is to say, after more than 6 years, and as such the suit in respect of this item would be barred by Article

120. As regards the second item, namely, the sum of Rs. 66,837-12-0, unfortunately it has not been found possible to ascertain from the record, as to when M/s. D. P. Edulji'& Co. disposed of the liquor, or deposited the sale proceeds in the Government treasury. There are, however, some indications from the record that the stock was disposed of and the sale proceeds deposited in the treasury sometime before the 9th May 1950, because the order dated the 9th May 1950 passed by Mr. J. W. Hearn, Financial Commissioner Development on a revision petition of the appellant makes mention of the sale of the liquor stock and of the money claimed by the appellant. This would clearly show that the sale proceeds were deposited in the treasury sometime after the 1st October 1948, when the stock was handed over to the company on the introduction of prohibition and before the 9th May 1950. But as already pointed out above, the burden was on the appellant to prove that he had filed his suit within the period of limitation, and as such it lay heavily on him to establish affirmatively that the sale proceeds of his stock were deposited within 6 years of the institution of the suit, but he has failed to discharge the burden. Faced with this situation, Mr. Iqbal took up the position that since his client's claim had been acknowledged at various stages during the course of the trial of the previous suit, the present suit would be within time. In this connection, he relies upon the following documents;

(1) Para. 9 of the written statement of the defendant in the previous suit (Exh. P. 1). (2) Mr. J. W. Hearn, Financial Commissioner's order dated the 9th May 1950 (Exh. P. 14). (3) Statement of accounts (Exhs. P. 5 and P. 5/A) produced in the earlier suit. (4) Statement of accounts (Exh. P. 10) dated the 5th June 1954 and filed in the previous suit on the 17th June 1954. (5) Statement of Mr. Ziaud-Din Advocate counsel of the defendant (Exh. P. 11) made in the trial Court in the previous suit, As to the written statement of the defendant, it was filed on the 7th July 1949. The present suit was brought on the 8th August 1955, that is to say, more than 6 years after the filing of the written statement, and as such the suit is clearly time-barred. As regards the order dated the 9th May 1950 by the Financial Commissioner, the acknowledgement was not made by Mr. Hearn himself. His order was based on a statement of some Excise Officer whose designation is not mentioned in the order. In any case, the appellant has failed to prove that either Mr. Hearn or the Excise Officer who made the acknowledgement, was an agent of the defendant duly authorised by him in this behalf to make the admission. The document (Exhs. P: 5 and P. 5/A) cannot advance the appellant's case, because it has not been shown that it was signed and produced in Court by a duly authorised agent of the defen dant. It also suffers from the defect that it bears no date, and therefore it is not possible to find out; as to when this alleged statement of accounts was prepared. The fourth document (Exh. P. 10) is also of no help to the appellant, because it has not been proved that the person who signed or produced the document held any authority from the defendant to act on his behalf. This leaves us with the statement of Mr. Ziaud-Din Advocate, counsel of the defendant, maqe on the 17th November 1949 in the trial Court during the proceedings of the previous suit. Mr. Iqbal contends that this statement is a clear acknowledgement of liability by the defendant's counsel made within 6 years of the institution of the suit, and as such the suit was within time. Before we proceed to examine the legal implications of the state ment, it will be helpful to reproduce its relevant portion. The statement was made in vernacular, and the material portion, rendered in English, would read as follows :- " It is correct that when prohibition was enforced from the 1st October 1948, stock worth Rs. 65,000 or Rs. 66,000 belonging to the plaintiff, was handed over to Edulji. It is also correct that the sale proceeds of this stock have not been deducted from the amount of the demand notes issued to the plaintiff. This will be deducted." The suit having been brought within 6 years of this statement, the appellant would be entitled to a decree in his favour, if he can prove, (1) that the statement amounts to an " acknowledgement of liability ", as contemplated by section 19, and (2) that the statement was signed either by the defendant, or by its agent duly authorised by him in this behalf. It is now well settled that a document alleged to contain an acknowledgement of liability must be liberally construed, that is to say, in construing such document, regard must be had to the meaning of the writer, judging from the document read as a whole and such L surrounding circumstances as the Court can take into considera tion in construing the document, rather than to the literal meaning of the words used. The section requires a definite " acknowledge ment of liability ". The document alleged to contain an acknowledgement of liability must clearly contain within itself the meaning that the party is admitting his liability. Where the' document is equally capable of meaning either that the party is admitting a liability, or that he is not doing so, the document can never be sufficient for the purposes of this section. It requires a clear admission of " liability " of the defendant. A mere admission of the claim of the plaintiff without in any way imply ing that there is any liability on the part of the defendant to pay as a balance is not sufficient. Where a defendant denies that on taking accounts anything is due from him and claims that it is the plaintiff that owes him a certain sum, but admits that the latter is entitled to set off a certain amount against his claim, there is no acknowledgement of liability. The reason is that in such cases there is no acknowledgement of liability coupled with a claim of set off, but on the other hand there is an assertion of a claim coupled with an admission of a right to set off reducing the amount claimed. Judged by the above-mentioned test, the statement of Mr. Ziaud-Din does not amount to an " acknowledgement of liability-". It is pertinent to point out here, that in the two demand notes issued to the appellant, the respondent claimed a sum of Rs. 1,43,439-8-0 from the appellant, which fact has been mentioned by Mr. Ziaud-Din in his statement under discussion, and when he made the statement, he clearly meant to convey, that the claim of the appellant in respect of the sale proceeds of his liquor stock amounting to Rs. 65,000 or Rs. 66,000 would be deducted from the claim of the respondent. In other words, the demand of the respondent had to be reduced to the extent of the claim of the appellant and in the result nothing had to be paid to the appellant. On the other hand, it was the appellant who was still, according to the statement of Mr. Ziaud-Din, liable to pay a sum of Rs. 1,43,439-8-0 minus the price of the liquor stock. Therefore, we have no hesitation in holding that the statement of Mr. Ziaud-Din does not constitute an " acknow ledgement of liability " within the meaning of section

19. But assuming for the sake of argument that the statement of Mr. Ziaud-Din amounts to an acknowledgement of liability, as required by section 19, the appellant has still to prove that Mr. Ziaud-Din was duly authorised by the defendant to make the admission. There is nothing on the record to establish that Mr. Ziaud-Din had the necessary authority for the purpose of making the acknowledgement. Consequently, we are unable to accept Mr. Iqbal's contention, that the statement of Mr. Ziaud Din brings his case within the four corners of section 19 of the Limitation Act. The case of the appellant has been argued by Mr. Iqbal on one other ground also. His contention is that the principle of " suspension of limitation " would apply to the case, and that his client was entitled to extension of time by reason of the fact that during the pendency of the previous suit the cause of action was put in abeyance, and it revived on the date when the previous suit was finally decided on the 26th June 1954, and that the present suit having been brought within 6 years of the decision of the previous suit, it would be within time under Article

120. In support of his argument he relied on a number of authorities, out of which two require special mention. They are Mst. Ranee Surno Moyee v. Shooshee Mokhee Burmonia and others (12 Moo. I A 244) and Bassu Kuar and others v. Dhum Singh (I L R (sic) All. 47). The facts of the first case are that Mst. Ranee Surno Moyee appellant, who was a zamindar, had granted a Putnee taluk (lease) to the respondents (lessees). The lessees fell into arrears of rent. The appellant pursued her remedy under Regulation VIII of 1814 and brought the lessees' rights to sale. The rights were sold for a sum greatly in excess of the rent in arrears. The purchaser was put in possession of the leased property. Out of the purchase-money the arrears were paid to the appellant, and the balance remained in the Collector's hands for the benefit of those who were entitled to it. Later, a suit was brought by the lessees to set aside the sale on the ground of irregularity. The sale was set aside, having been held illegal. The appellant then appealed to the High Court, but the appeal was dismissed. The result of the judgment in appeal was, that the appellant had to refund the purchase-money to the purchaser. The lessees were again put into possession of the leased property. They also recovered the mesne profits for the period during which they were out of possession, from the purchaser. The appellant thereafter brought another suit in the Collector's Court for the recovery of the arrears of rent, under Act X of 1859: The defence of the lessees was, that the suit was time-barred, the contention being that the suit should have been brought within 3 years from the date when the arrears of rent first became due. The suit was ultimately dismissed as barred by time, but on appeal to the Privy Council the decision was reversed, and it was held that the period of limitation would run from the date when the previous suit was finally dismissed. The facts of the second case relied upon by the learned counsel for the appellant, stated briefly, are that one Dhum Singh owed a sum of Rs. 35,359 to one Baru Mal. They entered into an agreement that Baru Mal would purchase the landed property of Dhum Singh for Rs. 55,000, and that he would give credit for and write off so much as was equal to the debt, receiving only the balance in cash. The transfer of the property was to be made in the name of Baru Mal's wife. Dispute, however, arose between the parties, as a result of which Baru Mal refused to complete the transfer. Dhum Singh brought a suit for specific performance. The suit was decreed by the Court of first instance, but was dismissed by the High Court on appeal. It was held that there had been no binding contract between the parties, and as such the agreement to sell was not enforceable by law. Thereafter, Baru Mal brought a suit against Dhum Singh for the recovery of his debt of Rs. 35,

359. The Subordinate Judge decreed the claim of the plaintiff, but the decision was set aside on appeal by the High Court, holding the suit barred by limitation. Their Lordships of the Privy Council disagreed with the view of the High Court, and held that the period of limitation would run from the date of the final order passed by the High Court. The facts of the two cases cited by Mr. Iqbal are clearly distinguishable from those of the present one. In the first case 12 Moore's I A 244, Mst. Rani had one cause of action, but she had two remedies open to her, one by a sale of the rights of the lessees, and another by a suit for the recovery of the arrears of rent. She pursued the first remedy, but ultimately failed and thereafter she brought a suit for the recovery of the arrears of rent, the cause of action being the same. It is obvious that there being one cause of action, the appellant could not pursue two different legal remedies at the same time in respect of her claim. Having exhausted one remedy and failed, she had to resort to the second remedy for the satisfaction of her claim. The decision of the Privy Council is clearly based on just and equitable grounds, and in the circumstances of the case the extension of time was justly allowed. In the second case I L R (sic) All. 47, it is easy to see that when Dhum Singh brought his suit for specific performance, Baru Mal could not have successfully brought his suit for the recovery of his debt, because in the very nature of the transaction both the parties could not be granted their respective reliefs. If Dhum Singh's suit for specific performance of the contract had been decreed, Baru Mal's suit for the recovery of his debt would have been surely dismissed, and in these circumstances it would have been utterly futile for him to sue. In other words, Dhum Singh's suit put Baru Mal's cause of action in abeyance and it revived only, when Dhum Singh's suit was ultimately dismissed. The dismissal having revived Baru Mal's cause of action, the period of limitation in respect of his claim started to run from that date. But in the present case Muhammad Akbar appellant had two distinct causes of action, one in respect of the demand of the Government and the consequent coercive measures, and another in respect of his own claim. The appellant in the first instance instituted a suit for a declaration, that the temporary licenses issued to him were void and illegal as the Excise and Taxation Commissioner was not competent to issue them, and also for a consequential relief by way of permanent injunction restrain ing the Government from recovering their arrears amounting to a sum of Rs. 1,43,439-8-0. It is quite obvious that the previous suit was directed against the two demand notes issued to the appellant by the Government, while the present suit was brought by the appellant for the recovery of his own claim of Rs. 88,447-7-3 against the Government. The appellant had two dis tinct causes of action, totally independent of each other, and be could bring two separate suits. There was nothing to prevent hi lm from bringing a suit for the recovery of his own claim during the pendency of the other suit for a declaration and permanent injunction, and as such the first suit could not put in abeyance the cause of action in respect of the other suit. The controversy whether the appellant had one or two distinct causes of action, and whether he should have included his claim against the Government in the first suit for a declaration and permanent injunction, was directly involved in issue No. 1, which has been decided against the respondent, and it has been held that the appellant had two distinct causes of action. The appellant cannot now turn round and challenge the correctness of this finding in his favour. Therefore, we concur in the finding of the trial Court, that the suit of the appellant is barred by limitation, and that he is not entitled to any extension of time on the ground that i his cause of action in respect of the present suit remained in abeyance during the pendency of the previous suit. The result is that we affirm the judgment and decree of the trial Court and dismiss the appeal. The trial Court has declined to award costs for good reasons, and we see no ground to interfere in the order. The cross- objections are also dismissed. There is no order as to costs in the appeal and the cross-objections. K. B. A./A. H. Appeal dismissed.