1. ' MIAN SAQIB NISAR, J. --- The legal proposition involved in this appeal with leave of the Court is that:-whether an (civil) appeal, which has crossed the prescribed period of limitation when it was filed in the District Court, while the said Court was closed on account of summer vacation, shall be barred by time, and the appellant (in the District Court) shall not be entitled to the benefit of the provisions of Section 4 of the Limitation Act, 1908? In the above context, the facts of the case are; that a judgment and decree was passed by the Trial Court in favour of the respondents and against the appellants on 6.6.1991. The latter applied for the certified copy of the above (judgment and decree) on 15.6.1991, which was prepared on 17.7.1991 and delivered to the appellant on 20.7.1991. Calculating the prescribed period of limitation of 30 days available to the appellant for filing of the appeal from the date of delivery of the copy and by excluding the time spent in obtaining the copy (note: if the time from the date of preparation of the copy and the delivery is not excluded; because the time would ordinarily reckon from the date of delivery, and there is nothing on the record as to what date was' given by the copying agency to the appellant for the purposes of delivery), the period of limitation shall seemingly expire on 9.8.1991. However, the appeal was filed by the appellant before the District Judge, Gujrat on 10.8.1991 and therefore it was questioned by the respondents to be beyond limitation. But as mentioned earlier this institution admittedly was during the summer vacation of the District/Civil Courts.
2. When the appeal came up for hearing before the learned Appellate Court, the same was dismissed on 17.5.2000 holding it to be barred by time, on the reasoning that no application for condonation of delay was filed by the appellant alongwith the appeal at the time of its institution, rather the application moved subsequently in this regard was after a lapse of considerable period of time (around 09 years) and this has reflection on the conduct of the appellant vii a-vis the lack of establishing a "sufficient cause" entitling it (the appellant) for the condonation of the delay. The appellant being aggrieved of the verdict, invoked the revisional jurisdiction i. the High Court, but failed through the impugned judgment dated 27.3.2004. Hence this appeal.
3. Heard. In order to attend to and resolve the legal proposition highlighted above, we feel expedient to reproduce the provisions of Section 4 of the Limitation Act, 1908 which read as under:- -- "4. Where Court is closed when period expires: Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens."
2. ' From the unambiguous language of Section ibid, there can be no doubt that a statutory right has been conferred upon a litigant, to the effect that if the period prescribed for a suit, an appeal, or an application expires on a date/day which falls during the period or the day when the Court is closed, the said case/matter may be instituted/preferred by the concerned litigant on the day when the Court re-opens. It may be emphasized here that the afore-mentioned right by stretch of any legal interpretation of the law ibid cannot be construed as a grace in any manner whatsoever; rather it is a right conferred by law and thus for all intents and purposes is a 'vested right' as is known to our jurisprudence. It is settled law that such vested right should in letter and spirit be enforced at all cost, except where it is unenforceable on account of any specific legal bar or it stands obliterated or taken away by or under the law. Be that as it may, there is no cavil qua the factual and legal aspect of the matter, that during the summer vacation, the District/Civil Courts are/were closed in Punjab. We have also verified the above position from the record of the Lahore High Court (through Registrar office of the Supreme Court) that during such period (summer vacation, particularly the relevant period) the District Courts were closed for all regular work with the exception of a duty Judge(s) who functions to attend only to urgent work/matters. Thus the requisite question (as also mentioned above) which arises in the above scenario is:-that if a litigant who files an appeal etc. during the closure of the Courts (on account of summer vacation), but on the day/date of such institution the prescribed period of limitation has passed out, whether the appeal can be held/said to be barred by time and therefore should be dismissed on this account and the right under Section 4 ibid which otherwise is available to a litigant shall be unavailable. In support of his contention that in the facts and circumstances of the present case the benefit of the said Section shall be available to the appellant, the learned counsel for the appellant has cited before us the judgments of this Court reported as Lehar Khan and others v. Amir Hamza and others (1999 SCM R 108), lkramullah and others v. Said Jamal (1980 SCM R 375), Siraj Ahmed and others v. Province of Sindh and others (2001 SCM R 1459), and Fazal Karim and another v. Ghulam Jillani and others (1975 SCM R 452). Conversely, learned counsel for the respondents has placed reliance upon the judgments Ch. Fayyaz Ahmed v. Mst. Hidayat Begum and 21 others (1997 SCM R 1393) and Fateh All Khan v. Subedar Muhammad Khan (1970 SCM R 238) to submit that in such a situation, Section 4 shall not be attracted and the appeal shall be therefore barred by time.
4. According to the law laid down in Fazal Karim's case (which was an appeal) the facts whereof have some nexus to the proposition in hand, this Court has elucidated the import and object of Section 4 ibid in the following terms:--- "Having carefully considered the contentions raised by the counsel, for the parties, we are convinced that the view taken by the learned Judge of the high Court was unexceptionable. From the plain reading of Section 4 of the Limitation Act, it becomes abundantly clear that the period during which the Court remains closed on account of vacations, has to be excluded for the computation of limitation and the notification cannot take precedence over the statutory provision. Even otherwise, we find that there is no conflict between the notification and the provision contained in Section 4 of the Limitation Act. According to the notification, the Office was to remain open for receipt of petitions from persons who might choose to file. Surely, the word "Office" as used in the notification is not synonymous with "Court" as used in Section 4 of the Limitation Act. The synonymous Court may be closed and yet the office might still be open. Even otherwise, the notification merely gives the petitioners an option to file petitions. Such an option cannot be construed so as to take away a statutory right. Even otherwise, it is doubtful that the word "Petition" as used in the notification will cover a memorandum of appeal. I am therefore, clearly of the view that the appeal even though filed during the vacation could be filed on the re- opening of the Court and was, therefore, well within time. " (emphasis supplied by Us).
3. ' Though in the leave refusing order of this Court passed in Ch. Fayyaz Ahmed's case (supra) a different view has been expressed, but to our mind due to lack of proper assistance of the bar such enunciation on the subject is not apt; mainly for two reasons firstly, that the matter pertained to the institution of a case before the High Court and not the District Court; secondly, it was wrongly perceived in the said opinion that during the long summer vacation the Lahore High Court registry is open for the institution of ordinary cases. However, as verified from the Registrar office of the Lahore High Court the position is otherwise as, during the summer vacation the registry of the High Court is closed for regular/ordinary institution and only urgent specified matters are entertained and set out for hearing. In this behalf the latest office order/notification dated 25.6.2014 is reproduced (note: we are apprised that all previous notifications on the subject are fundamentally alike):--- "OFFICE ORDER ' During summer vacation w,e,f, 01.07.2014 to 06.09.2014, only following categories of Urgent Cases shall be entertained by the High Court:--
(i) Habeas Corpus Petitions or detention matters.
4. (ii)Bail Applications.
5. (iii)Petitions seeking injunction/stay orders involving imminent threat of irreparable loss.
6. (iv)Petitions for the Quashment of FIR.
7. (v)Petitions against the order of 22(A) and 22(8), Cr.P.C.) for the Cancellation of Bails.
(vii) Petitions seek (vi)Application(sing direction against the public functionaries.
(viii) Suspension of sentence application(s).
8. (ix)Any other matter of genuine urgency with the approval of the Chief Justice/Senior Vacation Judge at the Principal Seat and the Senior Vacation Judge at the Benches.
9. 2.
10. 3.
11. 5.
12. 6.
13. 7.The registry will remain closed for all other cases. Benefit of Section 4 of the Limitation Act, will, however, be available in such cases.</i> 8...................
14. 9................
15. 10....................
16. 11............
17. ' BY ORDER OF THE HON'BLE CHIEF JUSTICE ' (MUHAMMAD NASIR)
18. ' Additional Registrar (Judicial)
19. ' Dated: 25.06.2014"
20. ' Therefore, in view of the above position the noted judgment (Fayyaz's case) is not much helpful for resolving the proposition. Besides, the noted decision is only a leave refusing order and according to Muhammad Tariq Badr and another v. National Bank of Pakistan and others (2013 SCM R 314) such order is not the enunciation of law which should be taken into consideration for the purposes of resolving the instant proposition. As regard Fateh Ali Khan's case (supra) cited by the respondents side, the question about the application of Section 4 ibid was considered in the context of the Supreme Court Registry remaining open during the summer vacation or otherwise and it was rightly held "Secondly, this contention is devoid of all force because though this Court was in vacation it cannot be said to be closed because its Registries were open for receiving the petitions and other work. Section 4 could only be applied in case there was no arrangement for doing the business of the Court during the vacation. Since this Court was open for receiving petitions and for doing other work, Section 4 of the Limitation Act has no application." Moreover, this case like Ch. Fayyaz's case (supra) was again a leave refusing order and therefore cannot be held to be an enunciation of law.
5. Be that as it may, analyzing the proposition as set out at the very inception of this opinion, independent of the above-referred case-law, there is no factual and legal doubt and controversy that during the summer vacations of 1991 the District Courts were closed both for the purposes of institution and hearing of ordinary cases and the routine work. In this context the order of District and Sessions Judge Gujrat dated 1.7.1991 is relevant and reads as "The Courts of AD&SJs shall remain closed during the summer vacation w.e.f 24.7.1991 to 8.9.1991. As I will be on Summer Vacation for the period from 13.8.1991 to 2.9.1991, I Mian Jahangir, District & Sessions Judge, Gujrat, in exercise of the powers conferred upon me under Section 22 of the Civil Courts Ordinance, 1962 and Section 17(4) of the Cr.P.C. hereby authorise the following officers to act as duty Judge with dates mentioned against each to entertain and dispose of emergent nature of Civil and Criminal petitions in which an application for stay has been moved including Bail applications to sign dak such as warrants and to grant casual leave upto 4 days to my staff during the period of Summer Vacation". Not only that, as per, the yearly cairn of the Lahore High Court for 1991 it is specifically mentioned "The Summer Vacation of the Civil Courts subordinate to the Lahore High Court shall be from 1st August to 31st August, 1991, except at Murree BY ORDER OF THE CHIEF JUSTICE AND JUDGES REGISTRAR". Therefore on account of the above order/calendar and the provisions of Section 4 ibid a litigant whose period of limitation for a matter shall expire during the summer vacation when the Courts are closed has a statutory (a vested) right to file his appeal etc. on the re-opening of the court. Section 4 ibid is very clear in this behalf and permits no ambiguity and doubt. So such litigant shall be well within his right and shall be absolutely safe to wait till the re-opening of the Court, though limitation of his case/cause shall expire during the period when the Court is closed. The situation highlighted above not only is meant to secure the right ibid, but it also gives rise to a reasonable and legitimate expectation to a litigant for the exercise of the right on the re-opening by awaiting till that date. However a condition may emerge that during the period while the Courts are still closed and the limitation has expired in-between that period, on account of some acute urgency a litigant may be compelled and forced to file a suit/ appeal for enabling him to ask for and seek some interim relief; i,e, in the nature of temporary injunction; stay order; an order to prevent the execution of; order against decree; dispossession from the suit property; warrants of arrest; attachment of property; appointment of receiver; appointment of commission etc. in the matter; which interim relief is imperative and of utmost expediency and if not asked for and obtained shall cause him (the litigant) an irreparable, irreversible loss and injury. Thus in the above scenario where a litigant though has the right to file the suit/appeal etc. on the re-opening of the Court (under Section 4 ibid) but for compelling reasons as mentioned in the preceding part is obliged to file the /is during the summer vacation, whether his afore-stated right, which is statutory and vested, shall be obliterated, destroyed or in other words whether he shall be deprived and divested of the right on account of such institution in the circumstances? The answer is in the negative. As it shall not only stultify his right to approach the Court on its re-opening, rather it shall mentioned above. The learned ASC next contended that though the Industrial Relations Act, 2012 has not been excluded through amendment in Section 41(6) of the Pakistan Telecommunication (Re-organization) Act XVII of 1996 but the exclusion of the repealed law would also include the law enacted subsequently, in view of the provision contained in Section 8 of the General Clauses Act.
21. The learned ASC next contended that where appellant-Corporation is providing services to the Armed Forces, its case would be squarely covered by Section 1(3) (a) of Act X of 2012, therefore, it will not apply to the officers and employees of the Corporation. Formation of Associations and Unions, the learned ASC submitted, is a fundamental right under Article 17(1) of the Constitution of Islamic Republic of Pakistan but such right is always subject to reasonable restrictions, therefore, any interpretations to the contrary would tend defeat the spirit of the Article.
4. The learned ASC appearing for the respondents maintained that when Section 87 of the Industrial Relations Act X of 2012 gives overriding effect to its provisions over any other law for the time being in force, the provisions of Pakistan Telecommunication (Reorganization) Act, 1996 cannot be an exception to it, therefore, the impugned judgment is not open to any interference.
22. The learned ASC next contended that where Section 1(3) itself provided the exceptions as enumerated in its clauses a, b, c and d, no other exception could be supplied or added thereto by having recourse to interpretative niceties. The learned ASC next contended that it would also be in conformity with Article 17(1) of the Constitution and International Labour Organization Conventions to apply Industrial Relations Act, 2012 to the officers and employees of the National Telecommunication Corporation. The learned ASC to support his contention also placed reliance on the case of "Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and another" (PLD 1997 SC 781). The learned ASC by concluding his arguments contended that registration of a trade union can neither be questioned by an already existing trade union in the establishment nor by the employer, therefore, the appellant lacking locus standi can't challenge it.
23. The learned ASC to support his contention placed reliance on the case of "Essa Cement Industries Workers' Union v. Registrar of Trade Unions, Hyderabad Region, Hyderabad and 4 others" (1998 PLC 500).,
5. The learned Dy. A.G., appearing on notice contended that the Pakistan Telecommunication (Re- organization) Act, 1996 is a special law, therefore, its provisions will prevail notwithstanding anything contained to the contrary in any general law of the land. The learned Dy. A. G. to support his contention placed reliance on the cases of "Noor Muhammad v. The State" (PLD 1991 S.C. 150), "Brig. Sher Ali Baz and another v. The Secretary, Establishment Division and others" (PLD 1991 S.C.
24. 143) and the case of 'Amjad Qadoos v. The Chairman National Accountability Bureau (NAB)
25. Islamabad, etc. rendered in Civil Petition No, 669 of 2014.
6. We have gone through the entire record carefully and considered the submissions of the learned ASCs for the parties and Deputy Attorney General on Court notice.
7. Before we proceed to discuss the arguments addressed at the bar, it is worthwhile to refer to Section 41 of Act XVII of 1996 which reads as under:--- "41. National Telecommunication Corporation.--- (1)As soon as may be but not later than thirty days from the commencing day of this [xxx][Act], the Federal Government shall establish a corporation to be known as the National Telecommunication Corporation which shall be a body corporate, having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire and hold property, both moveable and immovable, and shall sue and be sued by its name.
26. (2)The National Telecommunication Corporation shall be managed by a Management Board consisting of a Chairman and two other members, to be appointed by the Federal Government.
27. (3)The Authority shall grant a licence to the National Telecommunication Corporation for provision of telecommunication services within Pakistan on a non-exclusive basis only to the armed forces, defence projects, Federal Government, Provincial Governments or such other Governmental agencies or Governmental institutions as the Federal Government may determine; and during the exclusivity period of the Company specified in Section 39, the National Telecommunication Corporation shall not sell its capacity on the telecommunication system to any person other than such Government agencies or the Company.
28. (4)The National Telecommunication Corporation shall have the power to--- (a)appoint, promote, remove and exercise discipline and control over its staff; (b)set-up its internal organizations, including bureaus, divisions or offices and make appointments hereto; (c)enter into contracts; (d)acquire, lease, encumber, dispose of, exchange, invest or otherwise deal with any moveable or immovable property or any interest therein or thereto; and (e)levy and collect fee and other charges for the service provided by it at such rate as may be determined by the Federal Government.
29. (5)For the purpose of its functions, the National Telecommunication Corporation may, subject to regulations made by it providing for procedure of appointment, promotion, termination and terms and conditions of service, employ such persons, as it may consider necessary.
30. (6)The officers and employees of the National Telecommunication Corporation shall, for the purpose of this Act, be public servants within the meaning of Section 21 of the Pakistan Penal Code (Act XLV of 1860), and the Industrial Relations Ordinance [xxxxj[2002 (XCI of 2002,], shall not apply.
31. (7)
32. (8)
33. (9)
34. (10)
35. (11)
(12) (13)
36. (14)
37. (15)
38. (16)
39. (17)
40. (18)
41. ' Another provision which is relevant for the purpose of this case is Section 58 which reads as under: -- "58. Act to override other laws.---The provisions of this Act shall have effect notwithstanding anything contained in the Telegraph Act, 1885 (XIII of 1885), the Wireless Telegraphy Act, 1993 (XVII of 1933), or other law containing any provision inconsistent to this Act."
8. The question emerging for the consideration of this Court is whether the provisions of Industrial Relations Act X of 2012 would apply to the officers and employees of the National Telecommunication Corporation despite provisions contained in Section 41(6) and 58 of Act XVII of 1996. Before answering the question, it is imperative to refer to Section 1 of Act X of 2012 which reads as under:--- "1. Short title, extent, application and commencement.---
(1) This Act may be called the Industrial Relations Act, 2012.
42. (2)Subject to sub-section (3), it extends to the whole of Pakistan. ' Territory or carrying on business in more than one Province, but shall not apply to any person employed- (a)in the Police or any of the Defence Services of Pakistan or any services or installations exclusively connected with the Armed Forces of Pakistan including an Ordnance Factory maintained by the Federal Government; (b)in the administration other than those employed as workmen; (c)as a member of the Security Staff of the Pakistan International Airlines Corporation or drawing wages in pay group not lower than Group V in the establishment of that corporation as the Federal Government may, in the public interest or in the interest of security of the Airlines, by notification in the official Gazette, specify in this behalf; (d)by the Pakistan Security Printing Corporation or the Security Papers Limited; and (e)by an establishment or institution for the treatment or care of sick, infirm, destitute or mentally unfit persons excluding those run on commercial basis.
43. (4)It shall come into force at once."
44. ' Another provision relevant in this behalf is Section 87 which runs as under:-- '87. Act to override other laws.--- The provisions of this Act shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force." ' Section 41(6) of Act XVII, 1996 excludes the application of Industrial Relations Ordinance, 2002 to the officers and employees of the National Telecommunication Corporation. Section 58 of the Act further cements the exclusion by providing that the provisions of this Act shall have effect notwithstanding anything contained in the Telegraph Act, 1885 (XIII of 1885), the Wireless Telegraphy Act, 1933 (XVII of 1933) or other law containing any provision inconsistent with this Act.
45. Ordinance XCI of 2002 was repealed by Section 87 of the Industrial Relations Act IV of 2008 in the words running as under:--- "87. Repeal and savings.---(1) The Industrial Relations Ordinance, 2002 (XCI of 2002), is hereby repealed.
(2) Notwithstanding the repeal of the Industrial Relations Ordinance, 2002 (XCI of 2002), hereinafter to be called the repealed Ordinance, and without prejudice to the provisions of Sections 6 and 24 of the General Clauses Act, 1897 (X of 1897):-- (a)every trade union existing immediately before the commencement of this Act, which was registered under the repealed Ordinance shall be deemed to be registered under this Act and its constitution shall continue in force until altered or rescinded; (b)anything done, rules made, notification or order issued, officer appointed, Court constituted, notice given, proceedings commenced or other actions taken under the repealed Ordinance shall be deemed to have been done, made, issued, appointed, constituted, given, commenced or taken, as the case may be, under the corresponding provisions of this Act; and (c)any document referring to the repealed Ordinance relating to industrial relations shall be construed as referring to the corresponding provisions of this Act."
9. Clauses (a) and (b) of the provisions reproduced above save the things done as having been done under the corresponding provisions of the repealing Act while clause (c) construes reference to the repealed Ordinance relating to Industrial Relations as reference to the corresponding provisions of this Act. Section 88 of Act X of 2012, reiterates the same in the words reading as under: -- "88. Repeal and savings.---The Industrial Relations Act, 2008 (IV of 2008), having already been repealed by virtue of sub-section (3) of Section 87 thereof, notwithstanding the repeal of the said Act, hereinafter to be called the repealed Act, and without prejudice to the provisions of Sections 6 and 24 of the General Clauses Act, 1897 (X of 1897):--- (a)every trade union of an establishment or industry located in the Islamabad Capital Territory, or in more than one province and existing immediately before the commencement of this Act, which was registered under the repealed Act shall be deemed to be registered under this Act and is constituted shall continue in force until altered or rescinded; (b)anything done, rules made, notification or order issued, officer appointed, Court constituted, notice given, proceedings commenced or other actions taken under the repealed Act shall be deemed to have been done, made, issued, appointed, constituted, given, commenced or taken, as the case may be, under the corresponding provisions of this Act; and (c)any document referring to the repealed Act relating to industrial relations shall be construed as referring to the corresponding provisions of this Act."
46. 10.When reference to the repealed Ordinance of 2002 has been construed as reference to the corresponding provisions of Act IV of 2008 by virtue of its provision contained in Section 87 and reference to the repealed Act of 2008 has been construed as reference to the corresponding provisions of Act X of 2012 by virtue of its provision contained in Section 88, its application to the officers and employees of the Corporation cannot be attracted under any cannons of interpretation.
47. 11.Yes Section 87 of Act X of 2012 overrides the provisions of any other law for the time being in force but not its own in general and the one contained in Section 88 in particular, which unequivocally provides that any, document referring to the repealed Act relating to the industrial relations shall be construed as referring to the corresponding provisions of this Act.
48. 12.Section 8 of the General Clauses Act which, in its essence and substance, provides what Section 88 of Act X of 2012 does and thereby gives added strength to the aforesaid exclusion by adumbrating that "where this Act or any other Act after the commencement of this Act repeals and re-enacts, with or without modification of any provision of former enactment, then reference in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as reference to the provisions so re-enacted". Therefore, we have no hesitation to hold that Act X of 2012 would not apply to the officers and employees of the National Telecommunication Corporation in the absence of any different intention appearing in any of its provisions. There is also nothing in Act XVII of 1996 and that of 2012 as could present a conflict between the two. A close and careful reading of the two would unmistakably show that they are in harmony with each other. Therefore, the argument of the learned Dy. Attorney General addressed on the assumption that there is a conflict between the provisions of Act XVII of 1996 and those of Act X of 2012, is wholly misconceived. The judgments rendered in the cases of "Noor Muhammad v. The State", "Brig. Sher Ali Baz and another v. The Secretary, Establishment Division and others" and the case of "Amjad Qadoos v. The Chairman National Accountability Bureau (NAB), Islamabad, etc. rendered in Civil Petition No, 669 of 2014, (supra) are, therefore, not relevant to the case in hand. The a gument of the learned ASC for the appellant that where the Corporation is providing services to the Armed Forces, its case would be squarely covered by Section 1(3)(a) of Act X of 2012, therefore, its provisions will not apply to the officers and employees of the Corporation is not correct inasmuch as the services provided by the Corporation to the Armed Forces cannot be termed to be exclusive on any account.
49. 13.Reference to Article 17(1) of the Constitution of Islamic Republic of Pakistan would not help attract the application of the Act of 2012 to the officers and employees of the National Telecommunication Corporation notwithstanding it would not restrict their right to form associations or unions to voice their grievances and negotiate with their employers for better terms of their employment in view of the judgment rendered in the case of "Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees" (Supra).
50. 14.Reference to International Labour Organization Conventions, too, would not help attract the application of the Act of 2012 to the officers and employees of the Corporation when such right in view of Articles 2, 8 and 9 of the CO 87 is not absolute and unqualified but subject to the rules of the organization concerned and law of the land while in the case of Armed Forces and the Police such right has to be determined by the National Laws and Ordinances. The argument of the learned ASC for the respondent that registration of a trade union can neither be questioned by an already existing trade union in the establishment nor by the employer, therefore, the appellant lacking locus standi cannot challenge it, may be valid in a dispensation where Act X of 2012 is applicable but not otherwise. Therefore, the argument as well as the judgment rendered in the case of 'Essa Cement Industries Workers' Union v. Registrar of Trade Unions, Hyderabad Region, Hyderabad and 4 others" (Supra) will have no relevance to the case in hand.
51. 15.Having thus considered, we have no hesitation to hold that Industrial Relations Act X of 2012 does not apply to the officers and employees of the National Telecommunication Corporation and that impugned judgment being against the express provisions of the law cannot be maintained.
52. 16.For the reasons discussed above, we allow this appeal, set aside the impugned judgment with no order as to costs.