Karnataka High Court
Smt. Munilakshmamma vs The State Bank Of India on 27 October, 2022
-1-
WP NO. 21730 OF 2018
& WP NO.39912 OF 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.21730 OF 2018 (GM-RES)
&
WRIT PETITION NO.39912 OF 2018
WP NO.21730 OF 2018
BETWEEN:
SMT. MUNILAKSHMAMMA
D/O LATE MR. PAPAIAH,
AGED ABOUT 76 YEARS
R/AT NO.21/22, HOUSE LIST NO 118,
KHATHA NO.99, BANDE COLONY,
GEDDALAHALLI VILLAGE
ADJACENT TO AECS LAYOUT,
KASABA HOBLI,
BANGALORE NORTH TALUK
BENGALURU - 560094.
...PETITIONER
(BY SRI H R ANANTHAKRISHNA MURTHY, ADVOCATE)
AND:
1. THE STATE BANK OF INDIA
STRESSED ASSETS RESOLUTION CENTRE
Digitally signed by
LAKSHMINARAYAN N CARE OF ADMINISTRATIVE OFFICE
Location: High Court
of Karnataka BALAJINAGAR,
SRIPURAM JUNCTION
VISHAKAPATNAM - 530003
2. M/S KATYAYANI SEA FOODS PVT LTD
C/O SRI N NARASIMHA RAJU,
MANAGING DIRECTOR,
-2-
WP NO. 21730 OF 2018
& WP NO.39912 OF 2018
KODURUPADU VILLAGE,
ALLAVARAM MANDAL
EAST GODAVARI DISTRICT - 533217
3. SRI N NARASIMHA RAJU
AGED ABOUT 62 YEARS
S/O VENKATAPATI RAJU
C/O N NARASIMHA RAJU
MANAGING DIRECTOR
KODURUPADU VILLAGE,
ALLAVARAM MANDAL
EAST GODAVARI DISTRICT - 533217.
4. SMT. A INDIRA DEVI
AGED ABOUT 48 YEARS
W/O MR A V L N RAJU
SAMANTHAKURRU VILLAGE
ALLAVARAM MANDAL,
EAST GODAVARI DISTRICT - 533217
5. SRI A V L N RAJU
S/O MR SATHYANARAYANA RAJU
AGED ABOUT 56 YEARS
R/AT SAMANHAKURRU VILLAGE
ALLAVARAM MANDAL
EAST GODAVARI DISTRICT - 533217
6. G R SANJEEVAPPA
SINCE DECEASED BY HIS LRS
6A. SMT. LATHA
W/O LATE SANJEEVAPPA G R
AGED ABOUT 48 YEARS
6B. KUM. NEHA
D/O LATE SANJEEVAPPA G R
AGED ABOUT 24 YEARS
6C. KUM. BHOOMIKA
D/O LATE SANJEEVAPPA G R
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WP NO. 21730 OF 2018
& WP NO.39912 OF 2018
AGED ABOUT 20 YEARS
6A TO 6C ARE R/AT NO.171,
1ST CROSS, 1ST MAIN, CMR LAYOUT
GEDDALAHALLI
RMV II STAGE, SANJAYANAGAR
BENGALURU-560 094.
7. SRI A SATHYANARAYANA RAJU
AGED ABOUT 76 YEARS
S/O MR NARASIMHA RAJU
SAMANHAKURRU VILLAGE
ALLAVARAM MANDAL,
EAST GODAVARI DISTRICT - 533217.
8. SMT. G R VANITHA
AGED ABOUT 42 YEARS
C/O MRS. G R KAMALAVATHI
D/O G M RAMAKRISHNAPPA
GPA HOLDER NO.179/3,
G M R LAYOUT
RMV 2ND STAGE,
GEDDALAHALLI,
BENGALURU- 560094
9. MRS. G M KAVITHA
D/O LATE G R MUNISWAMY
AGED ABOUT 39 YEARS
NO.179/2, G M R LAYOUT,
RMV 2ND STAGE,
GEDDALAHALLI,
BENGALURU - 560094
10. SRI G M RAJESH
S/O LATE G R MUNISWAMY
AGED ABOUT 37 YEARS
NO 179/2, G M R LAYOUT
RMV 2ND STAGE,
GEDDALAHALLI
BENGALURU - 94
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WP NO. 21730 OF 2018
& WP NO.39912 OF 2018
...RESPONDENTS
(BY SRI. K V SHYAMAPRASADA, ADVOCATE FOR
R4, R5, R6A-R6C, R7 - 10;
SRI M K VENKATARAMANA, ADVOCATE FOR R1;
R2 AND 3 ARE SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 12.04.2018 PASSED IN CRL. MIS.
NO. 225/2008 BY THE LEARNED VII ADDL. CHIEF
METROPOLITAN MAGISTRATE AT BENGALURU, VIDE ANEX-Z;
AND ETC.
WP NO.39912 OF 2018 (GM-RES)
BETWEEN:
SMT. ANSUYA @ ANSUYAMMA
W/O LATE G M SRINIVAS,
R/AT NO. 35, 1ST CROSS,
1ST MAIN, OPP. JAWAHAR SCHOOL,
GEDDALAHALLI GRAMATANA,
RMV, 2ND STAGE,.
BENGALURU - 560094.
...PETITIONER
(BY SRI. H RAMACHANDRA, ADVOCATE)
AND:
1. THE STATE BANK OF INDIA
STRESSED ASSETS RESOLUTION CENTRE,
CARE OF ADMINISTRATION OFFICE,
BALAJINAGAR,
SRIPURAM JUNCTION,
VISHAKAPATNAM - 560003
REPRESENTED BY MANAGER.
2. M/S KATYAYANI SEA FOODS PVT
C/O. SRI. N. NARASIMHA RAJU,
MANAGING DIRECTOR,
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WP NO. 21730 OF 2018
& WP NO.39912 OF 2018
KODURUPADU VILLAGE,
ALLAVARAM MANDAL,
EAST GODAVARI DISTRICT - 533 217
3. SRI. N NARASIMHA RAJU
AGED ABOUT 62 YEARS
S/O. VENKATAPATI RAJU,
C/O. N NARASIMHA RAJU,
MANAGING DIRECTOR,
KODURUPADU VILLAGE,
ALLAVARAM MANDAL,
EAST GODAVARI DISTRICT - 533217.
4. SMT. A INDIRA DEVI
AGED ABOUT 48 YEARS,
W/O. MR. A.V.L.N. RAJU,
R/AT SAMANTHAKURRU VILLAGE
ALLAVARAM MANDAL,
EAST GODAVARI DISTRICT - 533217
5. SRI A.V.L.N. RAJU
S/O MR. SATHYANARAYANA RAJU,
AGED ABOUT 56 YEARS
R/AT SAMANTHAKURUU VILLAGE,
ALLAVARAM MANDAL,
EAST GODAVARI DISTRICT - 533217.
6. SRI G R SANJEEVAPPA
S/O LATE G M RAMAKRISHNAPPA,
AGED ABOUT 56 YEARS
NO. 179/3, 1ST CROSS, 1ST MAIN,
GMR LAYOUT, RMV 2ND STAGE,
GEDDALAHALLI, SANJAYNAGAR,
BENGALURU - 94.
7. SRI A SATHYANARAYANA RAJU
AGED ABOUT 76 YEARS
S/O MR. NARASIMHA RAJU,
SAMANHAKURUU VILLAGE,
ALLAVARAM MANDAL,
EAST GODAVARI DISTRICT - 533 217.
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WP NO. 21730 OF 2018
& WP NO.39912 OF 2018
8. SMT. G R VANITHA
AGED ABOUT 42 YEARS
C/O MRS. G R KAMALAVATHI,
D/O LATE G M RAMAKRISHNAPPA,
GPA HOLDER NO.179/3,
GMR LAYOUT, RMV 2ND STAGE,
GEDDALAHALLI,
BENGALURU - 560094.
9. MRS. G M KAVITHA
D/O LATE G R MUNISWAMY,
179/2, GMR LAYOUT,
RMV 2ND STAGE,
GEDDALAHALLI,
BENGALURU - 560094.
10. SRI G M RAJESH
S/O LATE G R MUNISWAMY,
179/2, GMR LAYOUT,
RMV 2ND STAGE, GEDDALAHALLI,
BENGALURU - 560094.
11. SMT. MUNILAKSHMAMMA
D/O. LATE MR. PAPAIAH,
R/AT NO. 21/22,
HOUSE LIST NO. 118,
KHATHA NO. 99,
BANDE COLONY, GEDDALAHALLI VILLAGE,
ADJACENT TO AECS LALYOUT,
KASABA HOBLI,
BANGALORE NORTH TALUK,
BENGLAURU - 560094.
...RESPONDENTS
(BY SRI. VENKATRAMANA M K.,ADVOCATE FOR R1;
SRI K V SHYAMA PRASAD, ADVOCATE FOR R4, 5 AND 10;
R6, 8, 9 AND 11 SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 12.04.2018 PASSED IN CRL. MIS.
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WP NO. 21730 OF 2018
& WP NO.39912 OF 2018
NO.225/2008 BY THE LEARNED VIII ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE AT BENGALURU VIDE
ANNEXURE-Q; AND ETC.
THESE PETITIONS COMING ON FOR FINAL HEARING,
THIS DAY THE COURT MADE THE FOLLOWING:
ORDER
In these writ petitions, petitioners have challenged the order dated 12th April, 2018 passed in C.Misc. No.225 of 2008 passed by the VIII Additional Chief Metropolitan Magistrate, Bengaluru.
2. The factual matrix for adjudication of these writ petitions are that the petitioners claim to be owners in possession of the House Bearing No.21/22, House-list No.118, Katha No.99, Bande Colony, Geddalahalli adjacent to AECS Layout, Bangalore North Taluk measuring to an extent of 60 x 60 feet. The petitioners came to know about the paper publication made in English Daily "Times of India" whereby the respondent-Bank had taken auction proceedings in respect of sites No.10, 11 and 12 in survey No.33/3A-1 of Geddalahalli village, belonging to respondents 8 to 10/borowers, who had pledged the above sites, each measuring 30 x 250 feet. Thereafter, petitioners have filed an appeal before the Debts -8- WP NO. 21730 OF 2018 & WP NO.39912 OF 2018 Recovery Tribunal (for brevity hereinafter referred to as "DRT") in ASA No.138 of 2007 and the DRT by its order dated 10th March, 2008, disposed of the Appeal in part with a direction to the respondent-Bank to auction sites No.10, 11 and 12 to an extent of 30 x 40 feet each. Being aggrieved by the said order dated 10th March, 2008, Writ Petition No.29978 of 2009 was filed before this Court by one of the borrowers and the said writ petition was dismissed as withdrawn on 16th August, 2010. The petitioner in Writ Petition No.29978 of 2009 has filed ASA No.315 of 2008 before the DRT and the said proceedings came to be dismissed on 09th February, 2009. In the meanwhile, SA No.557 of 2009 was filed by one of the borrowers before the DRT, which came to be dismissed on 13th May, 2010. In the meanwhile, the respondent-Bank has filed application under Section 14 of the Securitisation And Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (for short hereinafter referred to as the "SARFAESI Act") before the VIII Additional Chief Metropolitan Magistrate, Bangalore in C.Misc.225 of 2008 and the learned Magistrate by order dated 06th April, 2018 allowed the application in part and directed the Bank to take possession of the mortgaged property as shown in -9- WP NO. 21730 OF 2018 & WP NO.39912 OF 2018 the schedule. Feeling aggrieved by the same, Writ Petition No.21891 of 2013 and connected matters were filed before this Court and this Court, by order dated 14th February, 2017 disposed of the petitions by remanding the matters to the learned Magistrate to consider the case afresh after providing opportunity to all the stake holders in the matter. Thereafter, the petition was taken up by the learned Magistrate and framed issues as directed by this Court, with regard to the validity of the pr-existing rights of the parties. The learned Magistrate, after remand by this Court, by its order dated 12th April, 2018, allowed the petition filed by the respondent-Bank and directed the Bank to take possession of the petition schedule property. Feeling aggrieved by the same, the present writ petition is filed by the petitioners contending that the portion of the land belonging to the petitioners herein has been ordered to be taken into possession by the learned Magistrate and the petitioners herein are not the borrower of loan from the respondent-Bank.
3. Heard Sri H.R. Ananathakrishna Murthy, learned counsel appearing for the petitioner in Writ Petition No.21730
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WP NO. 21730 OF 2018 & WP NO.39912 OF 2018 of 2018 2018; Sri H. Ramachandra, learned counsel appearing for the petitioner in Writ Petition No.39912 of 2018; Sri M.K. Venkataramana, learned counsel appearing for the respondent- Bank; Sri K.V. Shyama Prasada, learned counsel appearing for the respondent-Borrowers.
4. Sri H.R. Ananathakrishna Murthy, learned counsel appearing for the petitioner in Writ Petition No.21730 of 2018, contended that learned Magistrate has not considered the direction issued by this Court in Writ Petition No.21891 of 2013 and connected matters and therefore, argued that the schedule mentioned in the title deeds produced by the borrowers is distinct and therefore, the impugned order passed by the learned Magistrate requires to be set aside in this writ petition. He also contended that the petitioner herein have produced certain documents along with judgments of this Court as well as the Hon'ble Apex Court and same has been brushed aside by the learned Magistrate and not even mentioned in the impugned order and therefore, contended that the impugned orders required to be interfered with by this Court in this writ petition.
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WP NO. 21730 OF 2018 & WP NO.39912 OF 2018
5. Per contra, Sri K.V. Shayama Prasad, learned counsel appearing for the borrowers, contended that learned Magistrate has gone into the partition deed referred to by the parties and in terms of the order passed by this Court in writ petition No.21891 of 2013 and connected matters, disposed of the petition, directing the respondent-Bank to take possession of the petition schedule property and therefore, sought to justify the impugned order passed by the learned Magistrate.
6. Sri M.K. Venkataramana, learned counsel appearing for the respondent-Bank argued in lines similar to the one argued by Sri K.V.Shayma Prasad and submitted that writ petitions deserve to be dismissed.
7. Sri H. Ramachandra, learned counsel appearing for the petitioner in Writ Petition No.39912 of 2018 contended that the schedule mentioned in the partition deed dated 09th January, 2002 and 09th January, 1984 are different and therefore, the petition deserves to be allowed by setting aside the order passed by the learned magistrate.
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WP NO. 21730 OF 2018 & WP NO.39912 OF 2018
8. In the light of the submission made by the learned counsel appearing for the parties, it is not in dispute that the contesting respondents are the having availed loan from the respondent-Bank and on becoming defaulters, the respondent- Bank has initiated ASA No.138 of 2007 before the DRT and by order dated 10th March, 2008, the appeal came to be allowed in part with a direction to the respondent-Bank to auction sites No.10, 11, and 12 to an extent of 30 x 40 feet each. The said order passed by DRT has reached finality as none of the parties preferred appeal against the said order. However, one of the borrowers has filed Writ Petition No.29978 of 2009 before this Court and this Court, by order dated 16th August, 2010, permitted the petitioner therein to withdraw the petition reserving liberty to seek remedy available under law. Thereafter, the borrowers have filed ASA No.315 of 2008 before the DRT, challenging the sale notice dated 17th September, 2008 under the provisions of SARFAESI Act and the said appeal came to be dismissed. Immediately, thereafter, another borrower-A.V.L.N. Raju, has filed SA No.557 of 2009 before the Debts Recovery Tribunal and the said appeal came to be dismissed with cost of Rs.1,00,000/-. In the meanwhile, the
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WP NO. 21730 OF 2018 & WP NO.39912 OF 2018 respondent-Bank has approached the Trial Court in C.Misc.No.225 of 2008, seeking physical possession of the schedule property and by order dated 06th April, 2013, trial Court allowed the petition in part, directing the respondent- Bank to take possession of the mortgaged properties. Feeling aggrieved by the same, borrowers have filed writ petition No.21891 of 2013 and connected matters before this Court and this Court, by order 14th February, 2017 set aside the order dated 06th April, 2013 passed by the learned Magistrate and remanded the matter to the learned Magistrate with a direction to take note of the pre-existing rights of the parties. The relevant paragraphs, 9 and 10 of the order reads as under:
"9. Therefore in that circumstance, the order impugned dated 06.04.2013 will have to be set aside and the matter be remitted to the learned Magistrate to restore Crl.Misc.No.225/2008. In that light, on providing opportunity to the bank, the borrower, guarantor, the third parties including the applicant in IA No.1/2014 claiming right in respect of the property regarding which the bank seeks to take possession under Section 14 of the SARFAESI Act to take note of the pre-existing right if any claimed by the parties to the mortgaged property and only if such right is established by the third parties on the face of it, the learned Magistrate would interfere
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WP NO. 21730 OF 2018 & WP NO.39912 OF 2018 with the right of the bank to act as the mortgagee for exercising its right. The learned Magistrate would thereafter consider the application and pass appropriate orders in accordance with law. It is made clear that the consideration to be made by the learned Magistrate would not be to determine the rights of the parties by adjudicating their rival claims to the extent as done in a civil suit seeking declaration but only to take note of the pre-existing rights if any as claimed under the documents where any Court having jurisdiction decided such right or the existing document and thereafter come to the conclusion in accordance with law.
10. In that view, the order dated 06.04.2013 passed in Crl.Misc.No.225/2008 is set aside and the learned Magistrate is directed to restore the Crl.Misc.No.225/2008 on file. All the parties to these petitions shall appear before the learned Magistrate on 18.03.2017 at 3.00 p.m. as the first date for appearance without notice being expected. The learned Magistrate shall thereupon regulate the proceedings and conclude the same as expeditiously as possible in accordance with law but not later than three months from the date of first appearance."
(emphasis supplied)
9. In view of the remand made by this Court, the learned Magistrate, by order dated, 12th April, 2018, allowed the petition and also directed the respondent-Bank to take
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WP NO. 21730 OF 2018 & WP NO.39912 OF 2018 possession of the schedule property. In the said proceedings, point No.2 for consideration reads as under:
"2. Whether the impleading applicant and 7th respondent proves that they have got pre-existing right in respect of schedule mentioned properties?
10. Undisputably, the subject matter of mortgage situate in survey No.33/3A-1 of Geddalahalli, Bangalore North Taluk, are three house sites No.10, 11 and 12. However, as per the equitable mortgage created on 24th February, 2002, the measurement of the schedule is measuring 30 x 250 feet. Debts Recovery Tribunal in its order, dated 10th March, 2008 in ASA No.138 of 2007, allowed the appeal with a direction to the respondent-Bank to auction sites No.10, 11 and 12 to an extent of 30 x 40 feet. The said order has reached finality. In the backdrop of these aspects, I have carefully considered the partition deed dated 09th January, 1984, which reflects the extent of erstwhile owners of the land in question relating to survey No.33/3A of Geddalahalli village. At "B" Schedule to the said partition deed dated 09th January, 1984, the dimension of the sites is, specifically, marked as 30 x 40 feet. The
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WP NO. 21730 OF 2018 & WP NO.39912 OF 2018 borrowers have derived the title over the property as per partition deed dated 09th January, 2002 whereby survey Number is stated as 33/3A-1 of Geddalahalli village, which refers to the parent deed dated 05th July, 1935. On careful examination of the order dated 14th February, 2017 passed by this Court in writ petition No.21891 of 2013 and connected matters, it emerges that this Court, while remanding the matter to the learned Magistrate, has issued a clear direction to ascertain the pre-existing right of the parties. In the light of these aspects, I have given anxious consideration to the impugned order passed by the learned Magistrate, wherein though point No.2 has been framed to ascertain the pre- existing rights of the parties, however, no discussion has been made by the learned Magistrate considering the aforementioned two partition deeds which is the basis to conclude the pre-existing rights of the parties and such other documents. At paragraph 23 of the impugned order, learned Magistrate opined that the petitioners herein have failed to produce any cogent document to establish their right over the schedule property like khata, tax paid receipts, etc. Though, at paragraph 24 of the order, it is stated that the BBMP khata
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WP NO. 21730 OF 2018 & WP NO.39912 OF 2018 certificate and tax paid receipts are produced, however, arrived at a conclusion that the said documents produced are not connected with the mortgaged property. Taking into consideration the facts on record, the finding recorded by the learned Magistrate arriving at a conclusion that the petitioners herein have no pre-existing right with respect of the schedule property is not correct and not supported by cogent reason to arrive at a conclusion whether the schedule property is measuring 30 x 40 feet each or measuring 30 x 250 feet and in that view of the matter, I am of the view that it is expedient to direct the learned Magistrate to reconsider the case on merits afresh taking into account the direction issued by this Court in Writ Petition No.21891 of 2013 and connected matters and the entire documents produced by the parties herein. It is also made clear that it is the duty of the parties to prove their title in civil proceedings seeking declaratory relief. However, in terms of the order passed by this Court in Writ petition No.21891 of 2013 and connected matters, it is the obligation of the learned Magistrate to answer the question determining the pre-existing right of the parties at the relevant point of time, taking into consideration the documents filed by the parties in
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WP NO. 21730 OF 2018 & WP NO.39912 OF 2018 these writ petitions also, and in that view of the I find force in the submission made by learned counsel appearing for the petitioners.
11. The petitioners in writ petition No.39912 of 2018 have filed application in IA.II of 2022 seeking condonation of filing in Legal Representatives Application; IA.III of 2022 seeking setting aside abatement; IA.IV of 2022 for bringing legal representatives of deceased respondent No.6 on record; IA.V of 2022 to recall the 13th September, 2022. Statement of objection has been filed by the respondent-Bank that the respondent No.6 died on 24th July, 2017, i.e. prior to institution of the writ petition, and therefore, having arrived at the conclusion to remand the matter to learned Magistrate for fresh consideration, the writ petition survives for remaining respondents. However, liberty is reserved to the petitioners herein to make necessary application before the Court below to bring the legal representatives of deceased respondent No.6 on record, if so advised, and if such an application is filed, learned Magistrate is directed to consider the application on merits and pass appropriate orders.
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WP NO. 21730 OF 2018 & WP NO.39912 OF 2018 In the result, I pass the following:
ORDER (1) Writ petitions are allowed; (2) Order dated 12th April, 2018 in C.Misc. No225 of 2008 passed by the VIII Additional Chief Metropolitan Magistrate, Bengaluru is quashed and the matter is remanded to the learned Magistrate to reconsider the issue afresh by affording opportunity to all the parties concerned and dispose of the petitioner within an outer limit of two months from the date of receipt of this order;
(3) All contentions in terms of Order dated 14th February, 2017 passed in writ petition No.21891 of 2013 and connected matters are kept open.
(4) Taking into consideration the fact the petition before the learned Magistrate is of the year 2008 and to avoid further delay in the matter,
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WP NO. 21730 OF 2018 & WP NO.39912 OF 2018 parties in the present petition are directed to appear before the learned Magistrate on 16th November, 2022 without awaiting for any further notice in this regard.
SD/-
JUDGE LNN List No.: 1 Sl.No.: 70