RANA BHAGWAN DAS, J. - Plaintiff a private limited company engaged in the business of builder, eni'ineers and contractors has brouuhl this suit lor recovery of Rs. 42. 46.702-tKt in the following circumstances.
2. In 1975 KDA invited lenders for planning, designing and construction of 10 M.G. Reservoir under the third phase of Greater Karachi Bulk Water Supply Scheme. Plaintiffs tender lor execution of the work in the sum of Rs. 1,10. 20, 548/- being lowest was accepted. On 21.7.1975 agreement for execution of work was executed between the parties on the terms and conditions contained in the tender documents. Execution of the work was commenced from this date and was required to be completed within 18 months but subsequently the period was extended from time to time, it is the case of the plaintiff that initially it was required to prepare design for the work with the code BSCP 2007 but on or about 9.9.1976 defendants directed it to prepare a fresh design of works as per code BSCP 5337 which was complied with resulting in substantial increase in the cost of the work and additional use of steel needed for completion of the works. According to the plaintiff, in view of change in design as against original quantity of 338.75 tons 622.437 tons of steel was used for.Completion of the work and it was entitled for payment of the additional use of steel. On its claim for the additional quantity of steel defendants paid for 204.664 tons of steel leaving a balance of 79.023 tons of excess steel which remained unpaid.
3. On 30.9.1975 Government of Pakistan granted escalation in prices. Likewise the Government of Sindh issued instructions for grant of escalation in prices through its letter dated 22.10.1978 Which according to plaintiff are binding upon the KDA and plaintiff therefore became entitled to escalation in prices by virtue of the agreement. It is averred that the Claims Committee of the defendant vide its resolution dated 10.5.1980 accepted the proposition that the plaintiff was entitled to escalation in prices. Plaintiff therefore computed its claim on account of escalation at Rs.32.13.KW/- and submitted the same to the defendant on 25.6.1980 but the Executive Engineer of the defendants on 20.6.1980 computed the amount on account of escalation in prices at Rs.
13,67,233.35 and . Recommended payment to the plaintiff which being endorsed by Law Officers of the defendants as well was acceptable to the plaintiff. Governing Body of the defendant, however, in its meeting held on 15.12.1983 sanctioned a payment of Rs. Five lacs to the plaintiff on account of escalation in prices which was paid to it on 29.12.1983. ..
4. It may be observed that by way of resolution in its meeting Governing Body of KDA approved the payment of Rs. Five lacs to the plaintiff in view of recommendation made by the Claims Committee due to rise in prices and as a result of negotiations by the Committee with the plaintiff, In this resolution cases of two other contractors were also considered who were also sanctioned lupin sum payment of Rs.5.8. Lacs and Rs. 3.8. Lacs respectively subject to an undertaking by each of the contractors that this amount shall be paid in full and final settlement of their pending claims and that they shall have no further claim against the authority in respect of their works. However the situation as explained by the plaintiff is that since its claim had already been delayed for nearly five years and it was under pressure from workers, suppliers and bankers who were threatening of legal proceedings when called upon to execute a written undertaking that no further claim shall be made by it, it executed the same under compelling circumstances. Undertaking executed is therefore invalid and ineffective for reasons of duress, public policy, lack of consideration, informality and inadequacy of the writing.
5. The plaintiff claims a sum of Rs.8,67.233/- on account of escalation after the adjustment of Rs..
Live lacs received by it, a sum of Rs.5,92,672/- on account of the excess; steel consumed due to change of design and Rs.3,00,000/- for preparation of a fresh design. Total claim of the plaintiff works out at Rs. 17. 59, 905 which alongwith interest at the rale of 15 % per annum with effect from 31.12.1978 up to the date of suit works out at Rs.42,46,791/-. Plaintiff maintains that the defendant through its officers and agents has been from time to lime acknowledging its liability on account of aforesaid claims and on 29.12.1983 made a partial payment to the plaintiff therefore the suit is within the period ol limitation. There is a recital in the plaint that the plaintiff has been from time to time serving notices in respect of its claims upon the defendant which satisfy the requirements of notice to defendant under the KDA Order 1957.
6. In its written statement defendant raised preliminary objections to the effect that the suit is not maintainable in law; that it is incompetent and bad in law for want of valid legal notice as required under Article 131 of KDA Order and that it is barred by time. On facts defendant admitted the contract between the parties but denied any negotiations between them concerning escalation and the quantity of steel to be consumed in the construction of the work. Defendant denied the painliffs claim on account of escalation it being violative of clause 46 of the agreement between the parties.
7. With regard to the change in design defendant staled that the design of work prepared by the plaintiff was objected by their consultant who suggested minor corrections in the design which were carried out by incorporating the same in the revised design. There was no direction for change of the design altogether as alleged. Defendant admitted that it was decided between the parlies that difference of quantity of steel due to change of code shall be paid to the plaintiff which comes to 204.664 tons and was duly paid. According to the defendant plaintiff completed the work on 11.5.1979 and not on 31.12.1978 as asserjed. Plaintiffs claim for additional payment for preparing revised design and escalation in prices was duly, considered and rejected by the Chief Engineer (Construction) KDA vide its letter dated 17.5.1979. As regards the instructions for grant of escalation charges defendant pleaded that these are not binding on the defendant authority being contrary to the terms of the agreement. After the rejection of plaintiffs claim regarding escalation on its request it was placed before Claims Committee and after negotiations between the parties it was finally agreed to pay a lump sum compensation of Rs. Five lacs on account of increase in prices, it is urged that the plaintiff voluntarily accepted the said amount and executed an undertaking in favour of the defendant that no claim on account of compensation due to the rise in prices in respect of the work will be advanced and this-amounl was accepted as full and final in connection with pending claims with the KDA. Defendant denied that any valid and legal notice was given bv theplaintiff for recovery of the suit amount and asserted that the suit was filed without any cause of action and in violation of article 131 of KDA Order 1957.
8. Pleadings of the parties were reflected in the following issues: ISSUES.
(1) Is the suit not maintainable for want of legal notice as required under Article 131 of the KDA Order- (President's Order No. V-of 1957)?
(2) Is the suit barred by limitation?
(3) Whether the plaintiff is entitled for payment for preparing the revised design?
(4) To. What amount, if any. Plaintiff is entitled?
(5) Whether the plaintiff after receipt of an amount of Rs. Five lacs is estopped from claiming further amount in respect of the said work?
(6) Whether the defendant at any stage made any acknowledgement of the plaintiffs liability as alleged?
(7) What should the decree be?
9. In support of plaintiff's case Manzoor Ahmed Oureshi, Managing Director of the Company appeared as witness while the defendant KDA examined Amanullah Chachar, Executive Engineer Incharge of the work.
(10). Mr. Gulzar Ahmed. Advocate for the plaintiff addressed this Court at the final hearing of the suit while the KDA remained unrepresented without any sufficient cause.With the assistance of the learned counsel for the plaintiff I have gone through the evidence on record. My findings tire as under lor the following reasons: REASONS.
Issue No.1.
11. Article 131 of KDA Order 1957 reads as under:"131.
Notice of suit against Authority, etc.
(1) No suit shall be instituted against the Authority or any member or any person associated with the Authority or against any servant of the Authority or against any person or persons acting under the direction or authority of the Chairman or of any officer or servant of theAuthority, in respect of any act purporting to he done under this Order or the rules or regulations made thereunder until the expiration of one month from the delivery of a written notice at the Authority office Mr the place of abode of such member, officer, servant or person, stating the cause of action, the name and place of the intending plaintiff, and the nature of the relief sought.(2) In every such suit the plaint shall contain a statement that such- notice has been so delivered.(3) Notwithstanding anything in the Limitation Act. 1905 (IX of 1908). No such suit as is described in clause (1) shall, unless it is a suit for the recovery of immovable property or for a declaration, of a title thereto, be commenced otherwise than within six months next alter the accrual of the cause of action."
12. Plain reading of the aforesaid provision requiring a written notice in respect of any ael purporting to be done under the KDA Order or the Rules or Regulations made thereunder tends to show that the delivery of such notice at the office of the authority is mandatory before filing of the suit. Strictly speaking such notice must state the causeof action, the name and place of the intending plaintiff and the nature of the relief sought. Besides, in every such suit brought against KDA plaint should contain a definite statement that such notice has been so delivered, one month before the suit.
13. On perusal of the plaint it is evidently clear that the plaintiff company is undoubtedly aggrieved by thc'act of the officials of the KDA with regard to nonpayment of its claims and it is also dis satisfied with the resolution of Governing Body of the KDA in sanctioning lump sum payment of Rs.
Five lacs in satisfaction of its pending claims. Accordingly the plaintiff described the undertaking and payment of this amount vide Ex./35 as part payment towards its claim. There is however no express or implied averment in the plaint that a legal notice as required by Article 131 was actually delivered at the office of the authority slating the cause of action, the name and address of the plaintiff and the proposed relief sought.
14. Faced with this situation learned counsel referred to plaintiffs letter Ex. 5/30 dated 25.9.1980 addressed tp Executive Engineer KDA calling upon him for payment of dues. Copies of this letter are endorsed to the Chairman Claims Committee. Chief Engineer (Construction) and Superintending Engineer (Construction) Circle II KDA which at any rate do not satisfy the requirements of Article 131 of KDA Order. Reliance on this letter.Is therefore completely displaced, misconceived and preposterous also for the reason that the plaintiff on its on showing actually accepted a sum of Rs.
Live lacs much subsequent to this letter on 29.12.1983 in full and final settlement of his claim undertaking that no further claim against the Authority in respect of the work shall be lodged.
Learned counsel next referred to letters Ex.5/36 to 5/39 in this connection. While letter Ex. 5/36 dated 22.1.1984 is addressed to Executive Engineer KDA requesting for payment of balance amount for use of additional quantity of steel to the tune of 48.302 tons at the rale of Rs. 7.500/- per ton and payment on account of new design prepared for the execution of the work, Ex. 5/37 is a letter dated 24.4.1984 addressed to Chief Engineer (Construction) KDA inviting attention to the earlier letter addressed to Executive Engineer. Ex.5/38 dated 6th June. 1985 is a reminder of-the earlier letter addressed to the Director General KDA in continuation of the curlier letter Ex. 5/39 daldl 5.8.1984.
15. On a careful consideration of these letters 1 am of the definite view that these letters by themselves at best constitute a lime barred demand for payment of claims and by any stretch of reasoning not a valid and legal notice as contemplated by Article 131 of the KDA Order. Needless to emphasis there is neither mention of the amount claimed in the suit; the alleged cause of action and intention to file a suit in case the claim was not accepted in the aforesaid letters. Mere recital in the letter Ex.5/36 to the effect that the plaintiff signed the measurement book and the receipt dated 29.12.1983 under duress or that this amount was received as an interim part payment towards long-standing dues would not tantamount a mandatory legal notice as required by KDA Order. To my mind the letters at best may be treated as acts of reselling from the solemn commitment made by the plaintiff company while executing undertaking on receipt of payment of Rs. Five Lacs as sanctioned by the Governing Body of the KDA in full and.Final satisfaction of ils pending claims with the KDA.
16. Alter the judgment was reserved, learned counsel cited Karachi Development Authority r.
Evacuee Trust Board (PLD 1984 Karachi 34), in order to meet the legal objection with regard to statutory notice, by the defendant, In this case Salim Akhlar. .1. (as his Lordships (hen was), while referring to Zainab Hajiani's case (PLD 1978 Karachi 848) observed that it is not in every case that notice under Article 131 is necessary before instituting a case against KDA. Such notice is necessary against KDA if suit hits been filed in respect of an act purporting to be done under the Order or Rules or Regulations made thereunder. In (he said case plaintiff had challenged the action of the KDA on the ground that their act of dispossessing them was illegal, without jurisdiction am1 not according to law as the property belonged to Evacuee Trust Properly Board. In the present case neither the authority of the KDA is challenged nor is there any dispute with regard to a property between the parties. Evident ly plaintiff claimed non payment of his dues on account of contract which was completed and KDA acted under theRules and Regulations made under the KDA Order by making lump sum payment to the plaintiff after the claim was sanctioned by its Board of Governors in their meeting. Reported case is therefore completely out of context and not relevant to the facts of the case in hand. For the aforesaid fads and circumstances, the issue is answered against the plaintiff.
Issues Nos, 2 & 6.
17. Both the issues may be discussed together for the sake of Convenience and brevity. According to learned counsel for the plaintiff Article 5( ol the First Schedule to the Limitation Act is attracted to the suit which provides a period ol three years for the price of work done by the plaintiff for the defendant til his request, where no time has been lixed lor payment from the dales when the work is done. According to the plaintiff, execution of work was completed on 31.12.F17X whereas according to the defendant it was completed on 11.5.1971). In his evidence PW-Manoor Ahmed Oureshi admitted that in all 35 running bills were paid by the defendant and 30th bill being final was paid to the company on 24.4.1979. Computing the period of limitation from-the date of completion of the work a: asserted by either of the parties, the suit filed on 24. 12.1'MS is patently barred by time and no other view can possibly be taken in the circumstances.
18. Learned counsel referred to a Single Bench judgment from this Court as well as Division Bench case from Lahore jurisdiction reported as Abdul Latif Khan v. D.B. Ciluidially (PW2 CLC X27) and Federation of Pakistan i. Jami Nascent (PLD PW4 Lahore 303). In the Karachi case, suit for recovery of amount in respect of construction work done by the plaintiff though filed after stipulated period of three years was filed within one year from submission of final bill by him which was refused In defendant alleging that contract had ceased, In these circumstances, the Court held that the suit was within time as starling point for computation of period of 3 years would be from dale when contract was allegedly broken or same was ceased. Suffice to say neither the suit has been filed within 3 years from the dale of payment of final bill nor from the date of completion of the contract.
Admittedly there was no breach of contract in the present suit thus the reported case is of no avail to the plaintiff.
19. In the Lahore case, a Division Bench sitting in its appellate jurisdiction, observed that the contractor had received payment of final bill without raising objection regarding payment of the additional work allegedly dime by him. He also did not plead coercion and strain in accepting final bill without objection. His attorney even did not mention such fact in his examination-in-chief. The Court accordingly held that the principle of estoppel could be pressed into service as strong inference would be raised from the factum of receiving paymentof final hill without raising any objection that in fact no such work was got done, for had it been done he would not have received payment against the final bill or at least would have raised objection for non payment of same or could have received payment under protest and kept the question of payment regarding, dispute open for decision by the department as per terms of contract. On the issue of limitation Court found that the suit was filed within .3 years from the dale of accrual of cause of action and was thus within time. I am unable to comprehend as to how this judgment advances the pica raised by the plaintiff which is hopelessly barred by lime and the doctrine of estoppel.
20. Learned counsel for the plaintiff, however referred to the undertaking dated 20.12.1983 Ex. 5/35 when according to the plaintiff partial payment of Rs Five Lacs Was made by the defendant through a cheque To re-enforce his contention learned counsel .Referred to Section 19. Of the Limitation Act lor computation of fresh period of limitation from this dale. This provision ol law postulates that where before the expiration of the period prescribed for a suit or application in respect ol any properly or right. 1th acknowledgement ol'liability in respect of such properly or .Right has been tirade in writing signed by the party against whom such property or right is claimed or by some person through whom, he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed, In order to appreciate this provision of law. It seems necessary to respondent the undertaking executed by the plaintiff's Managing Director which reads as under: "We give an undertaking that no claim on account of compensation due to the rise in prices against the work of construction ol It).M.C. Reservoir at University Hill (under 3rd phase) will be demanded .Tiler the payment.Of Rs. 5(HMMH)/- as approved by the (LB. KDA. This amount is lull and final in connection with our (rending claim with KDA. We further give an undertaking that no further claim against the authority in respect of the "above work will be demanded in future.
''21. It may be observed that in the first instance unqualified and voluntary undertaking executed by the plaintiff docs not at all amount to acknowledgement of liability and secondly it is neither signed nor acknowledged by any ;q>ent or officer on behalf of the defendant. Moreover, the period prescribed for liiing the- suit had already expired in as much as, according to pluintill the work was completed on 31.12.1978 while the undertaking is dated 29.12.1983. Confronted with this situation learned counsel for the plaintiff referred to explanation I to section 19 which postulates that for the purpose of this section an acknowledgement may be sufficient though it omits to specify the nature ol the property or right or avers that the time for payment, deliu-any performance or enjoyment has not come or is accompanied In a refusal to pa\, edeliver, perform or permit to enjoy or is coupled with a claim to a set-off is addressed to a person other than the person entitled to the properly or right.
22. Argument on the'face of it is without any substance and superfluous. As observed earlier firstly the undertaking executed by the plaintiff does not amount to an acknowledgement of liability and secondly this is hardly a ease of acknowledgement coupled with refusal to pay the amount. To my mind there is absolutely no admission of debt or liability which does not operate as waiver of the lime that had already elapsed, In law, the acknowledgment suffices to exclude the operation of statute and to set time running against the right of action. An acknowledgement merely saves the running of limitation and is relatable to a subsisting liability or legal relationship. The acknowledgment is supposed to rest upon the rebuttal alforded thereby of the presumption of payment of debt und therefore any acknowledgment which repels that presumption is as a rule sufficient.
23. Long alter-the judgment was reserved, learned counsel cited United Bank Ltd. r. Begum Fuzut Ahmed (PLD PW4. Karachi 248). In this case G.H. Malik. J. (as he then was) dealing with a plea raised by reason of section 20. Limitation Act, held that fresh period of limitation would be computed in terms of section 20 Limitation Act, 100S. Where there was payment; such payment was on account of a debt or. Of interest on legacy; payment in question, should be by the person liable to pay the debt, or interest on legacy, or by his authorized agent and: acknowledgement of payment in question, must appear in the hand-writing of, or in a writing signed by. The person making the payment. Learned Judge further observed that payment by a cheque signed by a debtor and delivered to. And encashed by the creditor was payment of the amount thereof. Even a cheque drawn by a third person in favour of judgment debtor and endorsed by him in favour of decree holder, who subsequently encashed it. Fulfilled the requirement of acknow ledgement in terms of section 20, Limitation Act. Learned Judge further held that part, payment-by such .Cheque on specified elate before expiation of period of limitation would extend period of limitation and suit filed before expiry ol sudt extended period would be within lime. Authority on the face of it is hardly applicable to the facts of the suit and of no avail to the plaintiff on the facts pleaded and established in the reported case.
24. No other point was urged in support of these issues, In my view there is hardly any lorcc in the contention of the plaintiff that the defendant having acknowledged liability alter the payment of Rs.
Five lacs to the plaintiff, a fresh period of limitation started running from the dale of payment. Both the issues are therefore answered against the plaintiff.
Issues Nos. 3. 4. & 5.
25. These issues may be discussed together for the sake of convenience and to avoid possible repetition of evidence and reasoning. After the decision on foregoing issues seemingly findings on these issues may not be called for but since evidence on such issues has been adduced, dispensation of safe administration of justice demands that these issues may also be adjudicated upon.
26. As regards the claim on account of change of design plaintiff failed to establish by evidence of unimpeachable and high order that in terms of the agreement between the parties, it is entitled to the payment of Rs. Three lacs on this account. No clause in the agreement between the parties has been referred to in support of this claim whereas according to the defendant design prepared by plaintiff involved amendments and corrections as noticed by its consultant. Plaintiff relied upon defendants' letter Ex. 5/11 dated '9.9,1976 in order to substantiate its claim, which tends to show that the design calculations submitted by the plaintiff had been approved by Consulting Engineer wiflt minor corrections. Accordingly the plaintiff was requested to submit the revised design incorporating all the corrections and amendments. By another letter Ex. 5/12 bearing the. Same date, the plaintiff was informed that due to revision of BS 2(X)7 Code department waxyconsidering to revise the design of the structure in accordance with the revised BS 5337 Code but before taking any decision it was essential to determine the extra cost involved. Plaintiff was therefore requested to calculate the cost of the items design as per BS 2007 Code and revised cost of the effected items designed as per the revised BS 5337 Code. By another letter Ex. 5/13 dated 12.1.1977. Plaintiff was informed that M/s Umer Miinshi Consulting Engineers had advised revision ol'lhe design in accordance with new British Code of Practicei. e. B.S, 5337. The plaintiff was therefore requested to gel the revised design completed through their -.Consultants and to supply the same immediately.
By its letter Ex. 5/14 dated 20.10.1976 however the plaintiff wrote to the Superintending Engineer (Construction) Circle No. Ill KDA enclosing, therewith two sets design .Calculations one based on BSCP 2(X)7 in 47 sheets and another design based on BSCP 5337 in 40 sheets respectively. Plaintiff added that they had already taken the work in hand according to the new design its verbally ordered. There is no mention ol'lhe difference in cost actually involved except an averment in the letter that the same had already been intimated and was payable to the plaintiff. Quite inordinately by its letter Ex. 5/16 dated 5th March. I97S plaintiff ertiphassed the Superintending Engineer (Construction 111) KDA by referring to sub para (1) of para 3 of the Contract Agrqcment on page 33 stilting that in general. Civil Engineering works shall be designed and constructed in accordance with BS Code of practice No. 310, 114 and 2007 latest if revised. Plaintiff further pointed out that BSCP 2007 was not revised but it had been scrapped and another Code BSCP 5337 introduced one year after the submission of the tender. This letter refers to earlier letters of 0.1.1078 and IS. 1.1978. While letter dated 9.1.1978 was not prtxluccd for the reasons better known to plaintiff, letter dated 18.1.1978 Ex. 5/40 by the plaintiff lends to show that revision of Code had resulted in requirement of additional quantities of steel, concrete and cement. A sum of Rs. 32,77,700/- was claimed on this score and adjusting a sum of Rs. 5,40,000/- already received balance payment of Rs. 27.37,706/- was claimed against the KDA but not responded.
27. From these letters the plaintiff led this Court to believe that in fact there was complete change of design from one Code to a different design Code with consequential entitlement to an additional amount on this account. Be that as it may. It seems that there was some change revision modification in the design in the structure of the work at the initiative of the defendant but there is no promise, agreement and commitment for extra payment tin account of this change or revision in the design. True that the plaintiff was paid the cost for use of additional quantity of steel on account of this change but no payment was made for preparation of new design as none was agreed upon.
28. As regards claim of the plaintiff on account of escalation in pricesnotwithstanding clause 40 of the agreement between the parties that no claim onaccount of fluctuation in prices will be entertained during the currency of thiscontract for terms of the' work as per schedule of quantities attached to thisagreement, in view of clause 17 of the Contract as no schedule ol quantities isattached to the agreement and because of the advice rendered by Law Officers ofthe KDA Ex.
5/33 it would be just, fair and equitable to accede the demand of the%plaintiff for escalation'on account of increase in the prices of material used in the execution of the contract. The question lor consideration now is whether the plaintiff is entitled to claim such escalation in this suit after the acknowledgement of Rs. Five Lacs in full and final settlement of his pending claims with KDA. No doubt plaintiff in his evidence claimed that negotiations had taken place between the parlies regarding escalation in prices in relation to quantity of steel, defendant expressly and unequivocally denied any kind of negotiations or commitment on their part. Be that as it may, the plaintiff failed to establish that Claims Committee fl the KDA had recommended lor payment of Rs.
13,07,233.35 on account of escalation in prices as urged. Indeed this issue was placed before the Governing Body of KDA at the request of the plaintiffs who sanctioned the payment of Rs. Five Lacs on account of escalation in prices in.Full and finalsatisfaction of the claims made by the plaintiff.
Having accepted this paymentwithout any protest the plaintiff is legally estopped from questioning the sameafter a lapse of nearly three years by staling that the acknowledgment wasexecuted by him under duress. Admittedly, plaintiff did not stale at the lime ofacceptance of amount that the same was accepted .Under duress or protest. Theexplanation that had it been so stated, plaintiff would not have been paid even thisamount, is hardly any justification for backing out of his undertaking that hewould not claim any other grant. Likewise there is absolutely no evidence asregards the commission of fraud and duress as pleaded and canvassed at the Bar.On plaintiffs on. Showing he had given this undertaking in full and finalt Isatisfaction of claim. Plaintiffs witness admitted that he did not send any letter ol protest either to the Governing Body or the Chairman KDA but sent letters to the Director General KDA on 24.4.1984, 5.8.1984 and 0.6.1985 long after the execution of the undertaking and receipt of the amount. To my mind, the plainlill should thank himself for the conduct and attitude adopted by him while receiving payment of Rs. Five Lacs, In law' he is estopped and debarred from raising any objection, protest, reservation to it at a highly belated stage of the suit in the absence of any strong evidence and plausible explanation.
Obviously there ?Ere no compelling and exceptional circumstances warranting the acceptance of the amount on the part of the plaintiff to entitle him to claim the said amount subsequently.
29. For the aforesaid lads and reasons these issues are decided against the plaintiff.Issue No. !.50.
In the light of the aforesaid findings suit must fail and is hereby dismissed with no order as to costs.