Sen, J.

1. This revisional application under Section 115 of the Code of Civil Procedure is directed against an order of the Full Bench, Calcutta Small Cause Court, sending back the suit for assessment of damages to the court of fifth Bench, Calcutta Small Cause Court.

2. The Plaintiff opposite parties Messrs. Gulabchand Rawatmull instituted the suit for recovery of Rs. 1,600 as damages for breach of contract on the following allegations. They stated that the Defendant company Messrs. Haridas Weaving Establishment in Madras agreed to sell 13 bales of shirtings consisting of 400 pieces of 24 yards piece at the rate of Rs. 32 per piece that the agreement was confirmed by a sale note despatched by the Defendant company which reached the Plaintiff company on August 14, 1950, and that the plainstiffs accepted the sale note by sending a telegram on August 16, 1950; but on account of rise in prices the Defendant company repudiated the contract by telegram and letter despatched on August 19, 1950 and that the Plaintiff company has, therefore, Suffered loss to the extent of Rs. 4 per piece because at the time when the supply was due to be made the price of shirting had gone up by Rs. 4 per piece; so the Plaintiff company claimed Rs. 1,600 as damages for breach of contract.

3. The Defendant company contested the suit contending that there had not been a completed contract for sale and the sale note was only an offer which the Plaintiff company did not accept but sent a counter-offer by letter, dated August 14, 1950, which amounted to revocation of the proposal. The Defendant company, therefore, contended that they were-.not liable for damages.

4. The trial court, namely, the learned Judge, fifth Bench, held that the letter of August 14, 1950, sent by the Plaintiff company was a counter-offer by the Plaintiffs and implied revocation of the Defendants original offer or proposal as contained in the sall note, dated August 11, 1950, which reached the Plaintiff company on August 14, 1950. The learned Judge also held that the sall note, dated August 11, 1950, accompanied by the letter, Ex. 1(a) amounted to an offer and was not a complete contract as allege by the Plaintiff company. The learned Judge also found that the letter containing the counter-offer which amounted to revocation of the original offer had reached the Defendant company before the telegram of acceptance, dated August 16, 1950, and that therefore, there had been no completed contract and the Plaintiff was not entitled to damages.

5. There was an application before the Full Bench under Section 38 on the Calcutta Small Cause Courts Act and the Full Bench of the Calcutta Small Cause Court held that the letter of August 14, 1950, was a conditional acceptance and not a counter-proposal and that as it was followed by unreserved acceptance contained in the telegram, dated August 16, 1950, there was a completed contract and that the Defendant company had no legal power to repudiate the contract on August 19, 1950, by letter and telegram, and that the Defendant company was, therefore liable for damages for breach of contract. The Full Bench sent back the case to trial Bench for assessment of measure of the damages.

6. The Defendant company through M. Govindam has filed this revisional application under Section 115 of the Code of Civil Procedure Mr. Das Gupta, appearing for the Defendant company, has urged that the Full Bench took an altogether wrong view of the letter of August 14, 1950, because a conditional acceptance was not known to law and that, therefore, the order of the Full Bench could not be upheld. Mr. Das Gupta has also raised the point that the Full Bench had no jurisdiction to send back the case to the trial Bench for assessment of damages only but that the Full Bench had jurisdiction only to order an altogether new-trial.

7. As regards the first point I must agree with Mr. Das Gupta that conditional acceptance is not recognised by law. Section 7 of the Indian Contract Act provides that in order to convert a proposal into a promise, the acceptance must be absolute and unqualified. The letter of August 14, 1950, written by the Plaintiff company, shows that the Plaintiff company did not accept the offer of purchase of 400 pieces of shirting at the rate of Rs. 32 per piece but proposed that the same quantity should be supplied at the rate of Rs. 31-8 per piece. No doubt the Plaintiff company stated also in the letter that they were always willing to do business with the Defendant company as they had been doing before and they also, expressed the hope that the Defendant company would accept the proposal and supply the shirting, but this did not show that the letter amounted to a conditional acceptance. As already stated, an acceptance must be full and unqualified and the proposal of the new rate which was a vital matter in the contract for sale clearly indicated that there was no agreement but there was a fresh proposal which was a counter offer.

8. Mr. Mukherjee, appearing for the Plaintiff-Respondents, has urged that in any case the contract was completed because within three days of their getting the sale note, Ex. 1, the Plaintiff company by telegram accepted the offer contained in the sale note, and that in view of the terms under which the parties were doing business by correspondence by letter and occasionally by telegram, three days must be considered as reasonable time for the acceptance. Mr. Mukherjee has referred to Section 6 of the Indian Contract Act which indicates the manner in which a proposal may be revoked. Under Section 6, a proposal is revoked-

(1) by the communication of notice of revocation by the proposer to the other party;

(2) by the lapse of the time prescribed in such proposal for its acceptance or, if no time is so prescribed, by the lapse of a reasbnable time, without communication of the acceptance;

(3) by the failure of the acceptor to fulfil a condition precedent to acceptance; or

(4) by the death or insanity of the proposer, if the fact of his death or insanity comes to the knowledge of the acceptor before acceptance.

9. It has, therefore, been urged that by merely making a counter offer the original proposal contained in the sale note of August 11, 1950, cannot be deemed to have been revoked and that offer must be deemed to have been subsisting. Mr. Das Gupta, on the other hand, has pointed out that Section 6 deals with the question of revocation by the party which made the proposal and not with the question of refusal of an offer and rejection of a proposal, and has relied upon the authority of an English case Hyde v. Wrench 49 E.R. 132 : 3 Beav. 334. In that case the Defendant offered to sell a house after some negotiation for 1000. The Plaintiff offered 950 and after consideration for a few days the Defendant rejected the proposal for selling the house for 950. The Plaintiffs agent, thereafter, on the same day as the rejection of the Defendant reached him, offered to buy the house at the price of 1000 at which the Defendant previously offered to sell but the Defendant refused to sell at that stage. The question was whether there was a contract binding the Defendant. It was held that there was no valid contract binding the Defendant. It was observed in the judgment as follows:

The Defendant offered to sell it for 1000, and if that had been at once unconditionally accepted, there would undoubtedly have been a perfectly binding contract instead of that, the Plaintiff made an offer of his own, to purchase the property for 950, and he thereby rejected the offer previously made by the Defendant. I think that it was not afterwards competent for him to revive the proposal of the Defendant, by tendering an acceptance of it and that, therefore; there exists no obligation of any sort between the parties.

10. This was a case of 1840 and the question naturally arises whether the law of contracts in India which is governed by Indian Contract Act is the same as the law laid down in England in 1840 in the case of Hyde v. Wrench 49 E.R. 132 : 3 Beav. 334. Mr. Das Gupta has pointed out that the case Hyde v. Wrench has been followed in India and in this connection he has referred to a decision of the Lahore High Court in the case of Nihal Chand v. Amar Nath : A.I.R. (1926) Lah. 645. In that case the headnote is as follows:

A offered by a letter to sell only at Re. 0-14-0 in a rupee his claims against a certain bank in liquidation to B. B offered Re. 0-13-9 a rupee which A did not accept. Then B accepted by telegram As offer at Re. 0-14-0. A did not assent to this, but he had hot expressly withdrawn his original offer of Re. 0-14-0 a rupee. B sued A for damages for breach of contract.

Held : that B by his counter-offer at Re. 0-13-9 impliedly rejected As original offer at Re. 0-14-0 and there was no contract.

11. In that case it was argued before their Lordships of the Lahore High Court that Section 6 of the Contract Act laid down the relative law in India and the principle laid down in Hyde v. Wrench 49 E.R. 132 : 3 Beav. 334 would not be applicable in India. Their Lordships rejected the contention in the following words:

The Appellant has contended that Section 6 of the Contract Act does not include revocation by means of a counter-proposal, and that, as a Code is exhaustive on matters with which it deals, therefore the law in India is different on this point to the law in England. We are clearly of opinion that this argument is wholly fallacious. In the first place, revocation of an offer means some action on the part of the offeree by which the offer is recalled or revoked. It does not follow that the offer cannot be determined by action on the part of the offeree, and therefore while fully conceding to the Appellant that a Code is exhaustive on matters with which it deals we do not see that there is any difference between the English and Indian law on the question of the determination of an offer by its rejection by the offeree.

12. The learned Full Bench of the Small Cause Court referred to this Lahore case (Nihal Chand v. Amar Nath : A.I.R. (1926) Lah. 645, 648.) but distin guished it by observing that the circumstances were quite different from the circumstances in the case before us. I must agree with the learned Full Bench that the circumstances are different, though for reasons different from those given by that Bench. Both in the cases of Hyde v. Wrench 49 E.R. 132 : 3 Beav. 334 and Nihal Chand v. Amar Nath : A.I.R. (1926) Lah. 645, 648 the counter-proposal made by the Plaintiff had been definitely rejected by the Defendant before the offer was renewed to close the transaction on the original terms. In the present case the Defendants had not rejected the counter-proposal of the Plaintiffs before the Plaintiffs communicated full acceptance of the proposal. Section 5 of the Indian Contract Act provides that the proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards, the illustration to the section makes the meaning clear. The illustration is as follows:

A proposes, by a letter sent by post, to sell his house to B. B accepts the proposal by a letter sent by post. A may revoke his proposal at any time before or at the moment when B posts his letter of acceptance, but not afterwards. B may revoke his acceptance at any time before or at the moment when the letter communicating it reaches A, but not afterwards.

13. In this case, considering the counter-offer made by the Plaintiff company in the letter of August 14, 1950, as a proposal, it must be held that the Plaintiff company had revoked the proposal before it was either accepted or rejected by "the Defendant company, and thereafter within a reasonable time of the original proposal the Plaintiff company communicated acceptance of the proposal by telegram which was confirmed by letter. If the Defendant company, after receiving the letter of the Plaintiff company, dated August 14, 1950, containing the offer for purchase at Rs. 31-8 per piece, had written back definitely rejecting the proposal before the acceptance reached them, then the case would have been similar to the cases of Hyde v. Wrench 49 E.R. 132 : 3 Beav. 334 and Nihal Chamd v. Amor Nath : A.I.R. (1926) Lah. 645, 648 and the principles laid down in those cases would have been applied. In the present case, as already stated, the Defendant company did not at once write back rejecting the counter-proposal of the Plaintiff company; before the Defendant company had time to do so the Plaintiff company themselves revoked that counter proposal and accepted the original proposal. Thus the facts are different and in the circumstances I must hold that there was a completed contract. It may be pointed out that in the Lahore case their Lordships did not apply the principle of Hyde v. Wrench 49 E.R. 132 : 3 Beav. 334 as unequivocally applicable. They, no doubt, applied the principle, but they also dealt with the matter in an alternative way. They observed as follows:

Even if the telegram of the Defendant of November 11 be taken as containing an implied renewal of the offer of the 5th or implied statement of the fact that the offer of the 5th was still outstanding, the acceptance of the 16th was not in the circumstances a good acceptance. More than five days had elapsed since the 11th and we cannot hold that the offer of the 5th, even if renewed impliedly by the telegram of the 11th, was still standing on the 16th.

14. Their Lordships held that in the circumstances of the particular case three days would be the reasonable time for acceptance or rejection of the contract, and therefore the offer had been revoked by failure to accept it within a reasonable time within the meaning of Section 6 of the Indian Contract Act. Thus their Lord ships made out an alternative case under Section 6 of the Indian Contract Act.

15. The question whether a counter-proposal amounts to rejection of the original proposal may be looked at from this point of view If the counter-proposal is accepted by the party which made the original proposal, necessarily the original proposal is superseded by the new proposal (counter-proposal). If the counter-proposal is rejected by the party which made the original proposal, ther also the original proposal cannot be deemed to be automatically revived. But if the counter-proposal is withdrawn before it has been either accepted or rejected, it must be held that the original proposal stands unrejected, and the acceptance will be good provided it has been made within a reasonable time from the date of communication of the original proposal. In this case it was rrade within a reasonable time as already stated, and therefore, it must be found that there was a good and valid contract.

16. The next point urged by Mr. Das Gupta is that under the terms of Section 38 of the Presidency Small Cause Courts Act the Full Bench had no power to transmit the case for rehearing on one issue only, namely, the issue of assessment of damages. By Section 38 of the Presidency Small Cause Courts Act the Full Bench may not only order a new trial but also alter, set aside or revise the decree or order upon such terms as it thinks reasonable. If the decree may be altered it is clear that finding on one issue may be revised, and where the remaining issues have not been decided the case may certainly be transmitted to the original court for decision. I cannot, therefore, accept the contention of Mr. Das Gupta that the Full Bench acted without jurisdiction in sending back the case for trial on the question of assessment of damages only.

17. The application, therefore, fails and the Rule is discharged. In the circumstances, however, no order is made for costs.