ivil Appeal No 1582 of 1973
From the Judgment and Order dated 27372 of the Bombay High Court in Appeal No 983 of 1966
SB Bhasme and VN Ganpule for the Appellants
Mrs CK Sucharita for the Respondents
The Judgment of the Court was delivered by SAIKIA J
This plaintiffs  appeal by special leave is from the Judgment of the High Court of Bombay in Second Appeal No 983 of 1966 setting aside the Judgment of the courts below and remanding the case to the trial court for hearing with a direction to refer the issue regarding tenan cy to the tenancy authorities
The appellants are the owners of land bearing RS No 1442 and 1445 situate at Kasba Karvir within the municipal limits of Kolhapur
The said land was leased out to the father of respondent Nos 1 and 2 and the husband of re spondent Nos 3 and 4 on October 12 1950 for a period of ten years
The appellants had filed Revision Civil Suit No 298 of 1964 against the respondents for possession thereof mesne profits and for damages
It was averred in the plaint that the appellants had earlier initiated proceedings under the Bombay Tenancy and Agricultural Lands Act 1948 herein after referred to as the Act  and in the said proceedings it was held that the provisions of the Act were not applica ble to the land inasmuch as only grass grew thereon natural ly
It was further averred that on expiry of the period of lease the 5 appellants terminated the tenancy under the provisions of the Land Revenue Code and filed the aforementioned suit
The respondent Nos 1  2 contested the suit contending inter alia that the civil court had no jurisdiction inasmuch as the Act was applicable to the land and that they having not been in wrongful possession thereof the notice of termina tion was invalid
The learned trial court tried the issues regarding the applicability of the Act jurisdiction of the civil court and estoppel out of the issues framed as preliminary issues and by order dated March 16 1965 fixed the date for hearing of the other issues and on that date the respondent Nos 1  2 being absent after recording the appellants evidence by Judgment dated July 17 1965 decreed the suit in favour of the appellants
The respondents  appeal therefrom having been dismissed by the District Judge they took Second Appeal No 983 of 1966 to the High Court of Bombay and the learned Single Judge has set aside the Judgment of the trial court as affirmed by the lower appellate court and remanded the case back to the trial court with a direction that it should raise the necessary issues on the pleadings of the parties and should make a reference to the competent authority under section 85A of the Act with respect to those issues which are required to be decid ed by the competent authority under the Act and on receipt of the findings dispose of the suit according to law
The appellants  application for leave to appeal under the Let ters Patent having been rejected by the High Court they have obtained special leave to appeal
Mr SB Bhasme the learned counsel for the appellants submits inter alia that the appellants  application under section 292 read with section 252 of the Act being case No84 of 1962 63 having been dismissed by the tenancy authorities on the ground that only natural grass grew thereon and there fore the authority had no jurisdiction to deliver possession thereof under section 292 of the Act that finding should act as res judicata wherefore remitting of the case by the High Court to the trial court for hearing and deciding after making a reference to the competent authority under section 85A of the Act with respect to those issues which are required to be decided by the competent authority under the Act would be barred and that in the facts and circumstances of the case the civil court itself has jurisdiction to decide the issues which have been directed to be referred to the civil court
Mrs CK Sucharita the learned counsel for the re spondents submits that under section 85A in a civil suit involv ing any issues which are required to be decided or dealt with by any authority competent to settle or decide such issues under the Act the civil court is to settle the 6 issues and refer those to such competent authority for determination that the High Court s direction in the im pugned Judgment is consistent with this provision and that the appellant s earlier proceedings under the Act before the tenancy authority having been dismissed ex parte it could not operate as res judicata
The question to be decided therefore is whether the High Court was correct in directing the trial court to refer the issues relating to tenancy to the competent authority under the Act
To decide it we may conveniently refer to the relevant provisions of the Act
The Act has amended the law which governs the relations of landlords and tenants of agricultural lands
As defined in section 28 of the Act land means a land which is used for agricultural purposes or which is so used but is left fallow and includes the sites of farm buildings appurtenant to such land
This definition is as amended by Bom
15 of 1957
The amendment is not material for the purpose of our case
As defined in section 21 Agriculture includes horticulture the raising of crops grass or garden produce the use by an agriculturist of the land held by him or a part thereof for the grazing of his cattle the use of any land whether or not an appanage to rice or paddy land for the purpose of rab manure but does not include allied pursuits or the cutting of wood only
This definition is after amendments by Bom 13 and 15 of 1956 and 1957 respectively
As defined in section 22 Agri culturist means a person who cultivates land personally
As defined in section 25 to cultivate with its grammatical variations and cognate expressions means to till or husband the land for the purpose of raising or improving agricultur al produce whether by manual labour or by means of cattle or machinery or to carry on any agricultural operations thereon and the expression un cultivated shall be con strued correspondingly
The explanation thereunder says A person who takes up a contract to cut grass or to gather the fruits or other produce of trees on any land shall not on that account only be deemed to cultivate such land
This definition is as substituted by Bom
13 of 1956
As defined in section 217 Tenancy means the relationship of landlord and tenant and as defined in section 218 tenant means a person who holds land on lease and includes a a person who is deemed to be a tenant under section 4 b a person who is a protected tenant and c a person who is a permanent ten ant and the word landlord shall be construed accordingly
This definition is as substituted by Bom
13 of 1956
The High Court has found that the appellants had leased out the land on October 12 1950 for a period of 10 years under a Kabulayat at 7 an annual rental of Rs 1000 and that period expired on October 11 1960
The appellants submitted an application under section 292 of the Act being case No 2068 of 1957 but that application was dismissed
Thereafter they moved another application under section 88C of the Act being case No 285 of 1961 and that application was also dismissed on the ground that the lands were governed by section 43C of the Act but the Act did not apply as the lands were within the limits of the municipal borough
Thereafter they started the third proceeding being application under section 292 read with section 252 of the Act being case No 184 of 1962 63
That application also came to be dismissed by the tenancy author ities on the ground that the lands in dispute were lands growing natural grass and therefore the authority under the Act had no jurisdiction to deliver possession under section 292 of the Act
The High Court noticed that the applica tion was decided ex parte but the Court did not know under what circumstances the competent authority proceeded ex parte
The effect of that decision was that the application filed by the appellants as landlords for possession of the lands treating the opponents thereof as tenants was dis missed
It was only thereafter that the appellants served the respondents with a notice terminating the tenancy and demanding possession and the defendants having not complied with the notice the appellants filled the instant suit Considered in the light of the above definitions and the provisions of section 85A of the Act there arises no doubt that some of the issues involved in the suit may be such as have necessarily to be decided by the competent authority under the Act and to that extent the jurisdiction of the civil court to decide those issues may be excluded
In Shivappa Satawappa Ashtekar vs Gajanan Chintaman Desh Pande 1953 55 Bombay Law Reporter Bombay 107 in the landlord s suit for possession of lands filed in civil court the defendants having contended that the lands were agricultural lands and that the defendants were pro tected tenants interpreting the then section 851 it was held Ex facie by the operation of section 70 and section 85 of the Bombay Tenancy and Agricultural Lands Act 1948 the jurisdiction of the civil court to decide whether the defendants were tenants or protected tenants must be regarded as excluded and the Mamlatdar alone must be regarded as competent to decide that question
That is the view which has been taken by a division bench of this Court in Dhondi Tukaram vs Dadoo Piraji 8 Section 70b of the Act then provided For the purposes of this Act the following shall be the duties and functions to be performed by the Mamlatdar a    b to decide whether a person is a tenant or a protected tenant Section 851 provided No Civil Court shall have jurisdiction to settle decide or deal with any question which is by or under this Act required to be set tled decided or dealt with by the Mamlatdar or Tribunal a Manager the Collector or the Bombay Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control
 This Court in Bhimaji Shanker Kulkarni vs Dundappa Vithappa Udapudi and Anr   considering the decision in Dhondi Tukaram s case supra which held that the Mamlatdar had exclusive jurisdiction to decide those issues though they arose for decision in a suit properly cognisable by a civil court observed The result was somewhat startling for nor mally the Civil Court has jurisdiction to try all the issues arising in a suit properly cognisable by it
But having regard to the fact that the Bombay Legislature approved of Dhondi Tukaram s case and gave effect to it by introducing section 85A we must hold that the decision correctly interpreted the law as it stood before the enactment of section 85A
It follows that independently of section 85A and under the law as it stood before section 85A came into force the courts below were bound to refer to the Mamlatdar the decision of the issue wheth er the defendant is a tenant
 Section 70 of the Act now provides For the purposes of this Act the following shall be the duties and functions to be per formed by the Mamlatdar a to decide whether a person is an agricul turist 9 b to decide whether a person is or was at any time in the past a tenant or a protected tenant or a permanent tenant XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX n to take measures for putting the tenant or landlord or the agricultural labour er or artisan or person carrying on as allied pursuit into the possession of the land or dwelling house under this Act o to decide such other matters as may be referred to him by or under this Act The words person is or was at any time in the past a tenant and the words or a permanent tenant were substi tuted for the words person is a tenant by Mah 49 of 1969
Section 85 and section 85A as inserted by Bombay Act 13 of 1956 provide 85
1 No Civil Court shall have jurisdiction to settle decide or deal with any question including a question whether a person is or was at any time in the past a tenant and whether any such tenant is or should be deemed to have purchased from his landlord the land held by him which is by or under this Act required to be settled decided or dealt with by the Mamlatdar or Tribunal a Manager the Collector or the Maharashtra Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control
2 No order of the Mamlatdar the Tribunal the Collector or the Maharashtra Revenue Tribunal or the State Government made under this Act shall be questioned in any Civil or Criminal Court
Explanation For the purposes of this section a Civil Court shall include a Mamlatdar s Court constituted under the Mamlatdar s Courts Act 1906 85A 1 If any suit instituted in any Civil Court involves any issues which are required to be settled decided or dealt 10 with by any authority competent to settle decide or deal with such issues under this Act hereinafter referred to as the competent authority the Civil Court shall stay the suit and refer such issues to such competent authority for determination
2 On receipt of such reference from the Civil Court the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court and such court shall thereupon dispose of the suit in accordance with the procedure applica ble thereto
Explanation For the purpose of this section a Civil Court shall include a Mamlatdar s Court constituted under the Mamlatdar s Courts Act 1906
 This section was inserted by Bombay Act 13 of 1956
Before the amendment of section 70b by Maharashtra Act 49 of 1969 when the question as to whether a party was in the past tenant or not for the purpose of acquiring some other right that is not as main issue but as a subsidiary issue Civil Court s jurisdiction to decide such subsidiary issue could not be said to be barred
Section 70b of the Act imposed a duty on the Mamlatdar to decide whether a person is a tenant and not whether a person was or was not a tenant in the past
In Mussamiya Imam Haider Bax Razvi vs Rabari Govindhai Ratnabhai  Ors   the appellant filed a suit on July 11 1958 for recovery of possession of the suit lands and mesne profits averring that the lease was fraudulently obtained by the respondents
The respondents contended that they became statutory owners section 32 or section 88 of the Act and the Civil Court had no jurisdic tion to decide the suit
The trial court decreed the suit and on appeal the High Court held that fraud was not proved the respondents failed to prove that they were statutory owners before the date of the suit that the Civil Court had jurisdiction to decide whether defendants were tenants on the relevant dates namely July 28 1956 or May 11 1958 and that the Civil Court had no jurisdiction to decide whether the defendants were tenants on date of the suit and that question was to be referred to the Mamlatdar
This Court on consideration of the provisions of section 70 and section 85A with other relevant provisions held at page 797 We are accordingly of the opinion that section 85 read with 11 section 70 of the Act does not bar the jurisdiction of the Civil Court to examine and decide the question whether the defendants had acquired the title of statutory owners to the disputed lands under the new Act
In this context it is necessary to bear in mind the important principle of construction which is that if a statute purports to exclude the ordinary jurisdiction of a Civil Court it must do so either by express terms or by the use of such terms as would necessarily lead to the infer ence of such exclusion
As the Judicial Com mittee observed in Secretary of State vs Mask  Co 671A 222236 It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred but that such exclusion must either be explicitly expressed or clearly implied  In our opinion there is nothing in the lan guage or context of section 70 or section 85 of the Act to suggest that the jurisdiction of the Civil Court is expressly or by necessary implication barred with regard to the question whether the defendants had become statutory owners of the land and to decide in that connection whether the defendants had been in the past tenants in relation to the land on particular past dates
We are also of the opinion that the jurisdic tion of the Civil Court is not barred in considering the question whether the provi sions of the Act are applicable or not ap plicable to the disputed land during a partic ular period
 It may be noted that after the amendment of section 70b of the Act by inserting the words or was at any time in the past a tenant the position has changed
The Civil Court has now no jurisdiction to decide an issue arising inciden tally in a civil suit which is to be specifically decided by a competent authority under the Act
Civil Court in such a case shall refer the issue to that authority and dispose of the suit in accordance with the decision of the authority
In GS Shinde vs RB Joshi   the appel lant filed the suit for specific performance of a contract for sale of land dated December 15 1965 coupled with a supplementary agreement dated April 26 1966 for sale of agricultural land
The suit was resisted by the defendant contending inter alia that the provisions of the Act were applicable to the land and the appellant not being an agri culturist section 63 of the Act was a bar to his purchase of the land and the agreement being contrary to law could not be specifically enforced
The plaintiff appellant sought 12 to repel that contention by producing a certificate Ext
78 issued by the Mamlatdar certifying that the plaintiff was an agricultural labourer and the bar of section 63 was not operative
If that Ext
78 was not taken note of the issue would arise whether the plaintiff was an agriculturist and in view of the provisions section 70a read with section 85 and section 85A of the Act the issue would have to be referred to the Mamlatdar for decision as the civil court would have no jurisdiction to decide the issue
The trial court and the High Court held that Ext
78 had no evidentiary value and the issue whether the plaintiff was an agriculturist being an incidental issue main issue being that of specific performance Civil Court had jurisdiction
Allowing the appeal therefrom and remanding the suit to the trial court this Court speaking through Desai 3
held at para 10 Now if Section 85 bars the jurisdiction of the Civil Court to decide or deal with an issue arising under the Tenancy Act and if Section 85A imposes an obligation on the Civil Court to refer such issue to the competent authority under the Tenancy Act it would be no answer to the provisions to say that the issue is an incidental issue in a properly constituted civil suit before a Civil Court having jurisdiction to entertain the same
In fact Section 85A comprehends civil suits which Civil Courts are competent to decide but takes note of the situation where upon a contest an issue may arise therein which would be re quired to be settled decided or dealt with by the competent authority under the Tenancy Act and therefore it is made obligatory for the Civil Court not only not to arrogate jurisdic tion to itself to decide the same treating it as a subsidiary or incidental issue but to refer the same to the competent authority under the Tenancy Act
This is an inescapable legal position that emerges from a combined reading of Sections 85 and 85A    
In a civil suit nomenclature of the issue as principal or subsidiary or substantial or incidental issue is hardly helpful because each issue if it arises has to be determined to mould the final relief
Further Sections 85 and 85A oust jurisdiction of Civil Court not in re spect of civil suit but in respect of ques tions and issues arising therein and Section 85A mandates the reference of such issues as are within the competence of the competent authority
If there is an issue which had to be settled decide or dealt with by competent authority under the Tenancy Act the jurisdic tion of the Civil Court 13 notwithstanding the fact that it arises in an incidental manner in a civil suit will be barred and it will have to be referred to the competent authority under the Tenancy Act
By such camouflage of treating issues arising in a suit as substantial or incidental or princi pal or subsidiary Civil Court cannot arrogate to itself jurisdiction which is statutorily ousted
This unassailable legal position emerges from the relevant provisions of the Tenancy Act After considering the precedents in Trimbak Sopana Girme vs Gangaram Mhatarba Yadav 1953 Bom 241 Dhondi Tukaram Mali supra Bhimaji Shanker Kulkarni supra Ishwerlal Thakorelal Almaula vs Motibhai Nagjibhai 1966 1 SCR 367AIR 1966 SC 459 Pandurang Hari Jadhav vs Shankar Maruti Todkar  Kalicharan Bhajan lal Bhayya vs Rai Mahalaxmi  Neminath Appayya Hanammannaver vs Jambu Rao Satappa Kocheri AIR  Jarnbu Rao Satappa Kocheri vs Neminath Appayya Hanamrnannaver  1968 SC 1358 Mussamiya Imam supra and Noor Mohd Khan Ghouse Khan Soudagar vs Fakirappa Bharmappa Machenahalli  3 SCR 789 their Lordships observed at para 19 Thus both on principle and on authority there is no escape from the conclusion that where in a suit properly constituted and cognizable by the Civil Court upon a contest an issue arises which is required to be set tled decided or dealt with by a competent authority under the Tenancy Act the jurisdic tion of the Civil Court to settle decide or deal with the same is not only ousted but the Civil Court is under a statutory obligation to refer the issue to the competent authority under the Tenancy Act to decide the same and upon the reference being answered back to dispose of the suit in accordance with the decision of the competent authority under the Tenancy Act
 In the instant case applying the settled law as enunciated above and in view of the certainty of the questions in volved we are of the view that the High Court has rightly sent back the suit to the trial court with the direction to refer issues if raised any to be determined exclusively by the competent authority to that authority
We now deal with the submission of Mr Bhasme that the order 14 of the tenancy authority in case No 184 of 1962 63 dismiss ing his application under section 292 read with section 252 of the Act holding that it had no jurisdiction to deliver posses sion of the land on the ground that the natural grass grew thereon should act as res judicata wherefore referring of issues to the Mamlatdar in the suit remitted by the High Court would be barred
Counsel submits that the Mamlatdar in deciding the aforesaid application acted under the Mamlat dar s Courts Act 1906 Bom
Act No II of 1906 and would be a Court competent to determine the issue as to whether the act was applicable to the appellants  land under the lease and it already decided that the Act was not applica ble as on that land only natural grass grew which meant that it was not land  and the defendants were not tenants  as defined in the Act
Section 11 of the CPC which deals with res judicata provides No Court shall try any suit or issue in which the matter
directly and substantially in issue has been directly and substantially in issue in a former suit between the same par ties or between parties under whom they or any of them claim litigating under the same title in a Court competent to try such subse quent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court Explanations I to VIII are not so relevant for the purpose of this case In Duchess of Kingston s case Sir William de Grey said From the variety of cases relative to judg ments being given in evidence in civil suits these two deductions seem to follow as gener ally true first that judgment of a court of concurrent jurisdiction directly upon the point is as a plea a bar or as evidence conclusive between the same parties upon the same matter directly in question in another Court secondly that the judgment of a Court of exclusive jurisdiction directly on the point is in like manner conclusive upon the same matter between the same parties coming incidentally in question in another Court for a different purpose
But neither the judgment of a Court of concurrent or exclusive juris diction is evidence of any matter which came collaterally in question though within their jurisdiction nor of any matter incidentally 15 cognizable nor of any matter to be inferred by argument from the judgment
 Section 11 bars the trial of a suit or issue in which the matter directly and substantially in issue has already been adjudicated upon in a previous suit
This Section applies in terms to cases where the matter in issue in a subsequent suit  was an issue in a former suit
A suit  is a proceeding which is commenced by a plaint
As provided in Section 26 of the CPC every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed
In the instant case admittedly the appel lants submitted an application to the Mamlatdar under section 292 read with section 252 of the Act
Sub section 2 of section 29 provides Save as otherwise provided in sub section 3A no landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar
For obtaining such order he shall make an applica tion in the prescribed form and within a period of two years from the date on which the right to obtain possession of the land or dwelling house as the case may be is deemed to have accrued to him This sub section is as amended by Mah 39 of 1964
It does not speak of a plaint a suit or a decree
The appellants did not call its application a plaint or the case a suit
If a matter directly and substantially in issue in a former suit has been adjudicated upon by a Court of exclu sive jurisdiction the adjudication will bar the trial of the same matter in a subsequent suit
In the instant case the Mamlatdar having decided the appellants  application for possession the appellants themselves went to the Civil Court and filed the suit
It does not now lie in their mouth to say that the decision of the Mamlatdar would act as res judicata for the trial court
We have seen that now the Mamlatdar s Court is a Civil Court for the purpose of section 85A of the Act
It is true that section 11 is now made applicable by the Explanations and interpretation to certain proceedings giving more extensive meaning to the word suit 
In its comprehensive sense the word suit  is understood to apply to any proceeding in a court of justice by which an individ ual pursues that remedy which the law affords
The modes of proceedings may be various but that if a right is litigated between 16 parties in a court of justice the proceeding by which the decision of the Court is sought may be a suit
But if the proceeding is of a summary nature not failing within the definition of a suit it may not be so treated for the purpose of section 11
In the absence of the details of the proceeding concerned in the instant case it has not been possible for us to hold that it was of the nature of a suit and not a summary proceeding
Besides assuming the Mamlat dar in deciding the application in 1962 63 to have been a court of exclusive jurisdiction for the purpose of section 11 CPC its decision rejecting the application would not be an evidence on the question of tenancy merely because it could be inferred from that decision
Admittedly the appellants  application was decided ex parte
It is true that ex parte decrees operate to render the matter decided res judicata and the defendants  failure to appear will not deprive the plaintiff of the benefit of his decree
But in the case of a suit in which a decree is passed ex parte the only matter that can be directly and substantially in issue  is the matter in respect of which relief has been claimed by the plaintiff in the plaint
A matter in respect of which no relief is claimed cannot be directly and substantially in issue  in a suit in which a decree is passed ex parte though the Court may have gone out of its way and declare the plaintiff to be entitled to relief in respect of such matter
In the instant case apply ing the above principle the order having been passed ex parte assuming the doctrine of res judicata applied it could be only to the extent of the appellants having been not entitled to possession at the relevant time and it could not be extended logically to the issue whether the defendants were tenants under the Act
The expression heard and finally decided  in section 11 means a matter on which the court has exercised its judicial mind and has after argument and consideration come to a decision on a contested matter
It is essential that it should have been heard and finally decided
What operates as res judicata is the ratio of what is fundamental to the decision but it cannot be ramified or expanded by logical extension
In Vithal Yaswant vs Shikandar Khan Mutumukhtan   it has been held by this Court that when a court bases its decision on more than one point each of which would by itself be sufficient for the ultimate deci sion the decision on each one of those points would be res judicata
In the instant case what were the points specifi cally urged and decided are not clear
In Pandurang Mahadeo Kavade  Ors
vs Annaji Balwant Bokil  Ors it was held that in order to operate as res judicata it must be established that the previous 17 decision was given by a court which had jurisdiction to try the present suit and there would be no res judicata if the previous decision was by a court having no jurisdiction
Of course that was a case of pecuniary jurisdiction but there is no reason why the same principle should not apply in other cases of courts without jurisdiction
The law is well settled that a court which had no jurisdiction to try a cause cannot by its own erroneous decision confer on itself competence to decide it and its decision on the question of jurisdiction cannot operate as res judicata
Conversely the decision relating to jurisdiction cannot be said to consti tute the bar of res judicata where by an erroneous interpre tation of a statute it holds that it has no jurisdiction
It is stated that there was no appeal filed by the defendants from the order of the Mamlatdar
That is not material
In Ramchandra Rao vs Ramchandra Rao 1922 49 IA 129 the Privy Council decided that where the suit as to the title for compensation had been referred to the Court a decree thereon was not appealed from the question of title would be res judicata in a suit between the parties to the dis pute
In Bhagwan Dayal vs Mst
Reoti Devi   a dispute arose as to proprietary title
A suit was filed in a Revenue Court under the UP Tenancy Act
The Revenue Court framed an issue thereon and referred it to the Civil Court as required by the Act
The Civil Court held that the re spondent had a half share in the villages and on the basis of this finding the Revenue Court decreed his suit
Thereaf ter the appellant filed a suit in Civil Court for a decla ration that he was the absolute owner of all the property in the suit
The defendants contended that the suit was barred by res judicata
This Court held that a subsequent suit was not barred by res judicata by the Judgment of the Revenue Court as it was not within the exclusive jurisdiction of the Revenue Court and suit was maintainable in the Civil Court
The Judgment of the Revenue Court on the issue of proprietary title could not operate as res judicata as a Revenue Court was not competent to try the subsequent suit
In the instant case the Mamlatdar declined to exercise jurisdiction holding that the Act did not apply
If an issue is referred to it by the trial court under the Act the question of jurisdiction would not arise and there could be no question of res judicata as to jurisdiction of the Mam latdar on reference
Bearing in mind the above provisions and the principles of law we are of the view that there could arise no ques tion of res judicata in the instant case
Section 11 would not be a bar to the trial court in 18 referring issues which are to be exclusively determined by a competent authority under the Act to that authority
Nor should arise any such question of res judicata in the compe tent authority deciding those issues when referred to by the trial court
In the result we find no merit in this appeal which is accordingly dismissed but without any order as to costs
Y Lal Appeal dismissed


Summary:
The respondent was manufacturing printed bulb cartons and printed tube cartons for the purpose of packing electric bulbs and electric tube light
The Additional Collector of Central Excise held that the cartons manufactured by the respondent were classifiable under item No 17 of the Cen tral Excise Tariff Act and thus chargeable to excise duty
Accordingly an order was passed for demand of excise duty
The respondent filed an appeal before the Customs Excise  Gold Control Appellate Tribunal
The Tribunal allowed the appeal by holding that i The product drums or sleeves manufactured by the respondent could not be called box  or carton  ii They were exempted from excise duty under the relevant notification
Hence this appeal by the Revenue
Dismissing the appeal this Court HELD 1 To consider the question whether the exemption notification was applicable or not in view of its terms it is necessary to find out whether these sleeves bulbs or sleeves or tube light sleeves manufactured for the purpose of packing the electric bulbs and tubes are printed box and cartons
127E 2
The Tribunal approached the question from the literal meaning as well as the functional use of the expressions employed
As these 124 sleeves and tube sleeves manufactured by the respondent had no independent market as such and as these were utilised for captive consumption for the end product manufactured by the respondent in the absence of any positive and reliable evidence that there was either a market for these goods manufactured by the respondent and in that market these bulb sleeves and tube sleeves are known and marketable as corrugated boxes and cartons a fact of which in the record there is no positive evidence either way the Tribunal proceeded on a correct basis
Therefore the conclusion reached by the Tribunal cannot be assailed in this appeal
127F H 128B