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[Cites 9, Cited by 0]

Gujarat High Court

Paras Agri Business Private Limited vs Proprietor Of M/S. J.V. Enterprise ... on 6 April, 2023

Author: Ashutosh Shastri

Bench: Ashutosh Shastri

     C/SCA/24043/2022                              JUDGMENT DATED: 06/04/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 24043 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE J. C. DOSHI
==================================================
1     Whether Reporters of Local Papers may be allowed to              YES
      see the judgment ?

2     To be referred to the Reporter or not ?                          YES

3     Whether their Lordships wish to see the fair copy of the          NO
      judgment ?

4     Whether this case involves a substantial question of law          NO
      as to the interpretation of the Constitution of India or
      any order made thereunder ?

==================================================
                 PARAS AGRI BUSINESS PRIVATE LIMITED
                                  Versus
     PROPRIETOR OF M/S. J.V. ENTERPRISE TULSIDAS MOHANBHAI KAKKAD
==================================================
Appearance:
MR SAURABH G AMIN(2168) for the Petitioner(s) No. 1,2
MR NISHANT LALAKIYA(5511) for the Respondent(s) No. 1
==================================================
     CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
           and
           HONOURABLE MR. JUSTICE J. C. DOSHI
                       Date : 06/04/2023
                       ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE J. C. DOSHI)

1. Rule returnable forthwith. Learned advocate Mr. Nishant Lalakiya waives service of notice of rule for the respondent. With the consent of learned advocates appearing for the respective Page 1 of 15 Downloaded on : Mon Apr 10 20:39:13 IST 2023 C/SCA/24043/2022 JUDGMENT DATED: 06/04/2023 parties, this petition is taken up for final hearing.

2. The instant petition is filed under Article 227 of the Constitution of India with following reliefs:-

"(A) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction and thereby be pleased to quash and set aside the order dated 20.7.2022 passed by the learned Principal Senior Civil Judge, Gondal below Exh.18 in Commercial Suit No.2 of 2019.
(B) Your Lordships may be pleased to issue a writ, order or direction and thereby be pleased to allow the application below Exh.18 and be further pleased to stay the further proceeding of the subsequent suit being Commercial Civil Suit No.2 of 2019 pending before the Principal Senior Civil Judge , Gondal till the final disposal of previous suit being Commercial Suit No.16 of 2019 pending before the Principal Senior Civil Judge, Panchmahal."

3. The fact that gives rise to the petition can be summarized that the petitioner - Paras Agri Business Private Limited filed Commercial Civil Suit No.16 of 2019 before the learned Principal Senior Civil Juge, Palanpur against present respondent Tulsidas Mohanbhai Kakkad, Proprietor of JV Enterprise and the broker namely Hiren Pravinbhai Chandarana for recovery of Rs.34,79,921/- with interest inter alia on the ground that between the time period ensuing from 7.5.2016 to 8.6.2016, the petitioner company has sold and delivered coriander seeds to the respondent and generated the invoice amounting to Rs.1,38,23,093/-. According to the petitioner company, the respondent has paid Rs.1,03,48,172/- against the invoice generated, but neglected to pay the balance amount of Rs.39,39,301/- and therefore, the petitioner company has Page 2 of 15 Downloaded on : Mon Apr 10 20:39:13 IST 2023 C/SCA/24043/2022 JUDGMENT DATED: 06/04/2023 instituted Commercial Civil Suit No.16 of 2019 before the learned Principal Senior Civil Judge, Palanpur on 11.6.2019.

3.1 The respondent, who is arraigned as defendant in the Commercial Civil Suit No.16 of 2019, instituted Commercial Civil Suit No.2 of 2019 on 16.11.2019 against the petitioner company before the learned Principal Senior Civil Judge, Gondal alleging that he has paid Rs.1,03,48,172/- to the petitioner company being advance payment against purchase of coriander seeds worth Rs.1,38,79,011/-. However, the petitioner company has not supplied the goods agreed and therefore, he prayed for recovery of Rs.1,03,48,172/- along with interest from the petitioner company.

3.2 In Commercial Civil Suit No.2 of 2019, which is pending before the Court of learned Principal Senior Civil Judge, Gondal, present petitioner company has moved an application Exh.18 u/s 10 of the Civil Procedure Code, 1908 (for short "the Code") for staying the Commercial Civil Suit No.2 of 2019 claiming that the subject matter in Commercial Civil Suit No.16 of 2019 pending in the Court of learned Principal Senior Civil Judge, Palanpur and in the Commercial Civil Suit No.2 of 2019 are identical and same and therefore, Commercial Civil Suit No.2 of 2019 being later in point of time should be stayed.

4. The learned Principal Senior Civil Judge, Gondal, having heard both the sides, rejected the application Exh.18 filed in Page 3 of 15 Downloaded on : Mon Apr 10 20:39:13 IST 2023 C/SCA/24043/2022 JUDGMENT DATED: 06/04/2023 Commercial Civil Suit No.2 of 2019. Hence, this petition under Article 227 of the Constitution of India.

5. Heard learned advocate Mr.Saurabh Amin for the petitioner and learned advocate Mr. Nishant Lalakiya for the respondent.

6. Learned advocate Mr. Amin appearing for the petitioner company would submit that the learned trial Court erred in dismissing application Exh.18 and failed to understand the purport of section 10 of the Code. He would further submit that in the present case, both the parties, who have instituted suits against each other, are claiming their relief for the identical and same transaction. The parties and the transaction between them are common, yet the learned trial Court has failed to understand that if both the suits are allowed to proceed further, it would have antithetical ramification on the result. He would further submit that the transaction upon which claims made by both the parties are one and the same, the issues involved in both the suits are also one and the same and in that facts and circumstances, Commercial Civil Suit No.2 of 2016, which is filed later in point of time, was required to be stayed by the learned trial Court.

6.1 In support of his submission, learned advocate Mr. Amin has relied upon judgment of the Hon'ble Apex Court in the case of Gupte Cardiac Care Centre and Hospital Vs. Olympic Pharma Care (P) Limited reported in (2004) 6 SCC 756 and more Page 4 of 15 Downloaded on : Mon Apr 10 20:39:13 IST 2023 C/SCA/24043/2022 JUDGMENT DATED: 06/04/2023 particularly para 4 of the same, which reads as under:-

"It has not been disputed at the Bar that the two suits arise out of the same transaction. Cause of action of one party arrayed as plaintiff would be its defence in the suit where it is arrayed as defendant. Though there are two plaintiffs and two defendants in the suit at Nashik while there is only one plaintiff and one defendant in the suit at Delhi but there is substantial identity of the parties in the two suits. The issues arising for decision would necessarily be the same. Only one of the two suit can be decreed. The decree in one suit in favour of the plaintiff in that suit would entail the dismissal of the other suit. It cannot, therefore, be denied that the two suits deserve to be heard and tried in one Court. That would avoid the possibility of any conflicting decrees coming into existence. And certainly the duplication of evidence, oral and documentary both, would be avoided. The parties and the Courts would save their time and energy which would needlessly be wasted twice over."

7. Upon making such submissions, learned advocate Mr. Amin prays to allow this petition and to quash and set aside the impugned order and further urged to stay the proceedings of Commercial Civil Suit No.2 of 2019 pending for trial before the learned Principal Senior Civil Judge, Gondal.

8. Per contra, learned advocate Mr. Nishant Lalakiya appearing for the respondent, while supporting the impugned order, mainly submitted that the issues in both the suits are different, they are not one and the same, parties are also different. According to the petitioner, he has sent the goods i.e. coriander seeds to the respondent, whereas according to the respondent, no goods were ever received by the respondent. He would further submit that even as per the case of the petitioner, remittance against the invoice generated was made through cheque, whereas, as per the case of the respondent, he has Page 5 of 15 Downloaded on : Mon Apr 10 20:39:13 IST 2023 C/SCA/24043/2022 JUDGMENT DATED: 06/04/2023 advanced the payment through RTGS mode. Considering this inconsistency in both the suits, it can be said that both the suits are filed on different grounds. He would further submit that cause of action in both the suits are also different. In that peculiar facts and circumstances, decision in either of the suit would not operate as res judicata upon other suit. In that facts and circumstances, while relying upon the judgment of the Hon'ble Apex Court in case of Aspi Jal Vs. Khushroo Rustom Dadyburjor reported in (2013) 4 SCC 333, learned advocate Mr. Lalakiya prays to dismiss this petition.

9. We have heard rival submissions of learned advocates appearing for both the parties.

10. At the outset, let refer to section 10 of the Code, which reads as under:-

"No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.
Explanation.- The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action."
Page 6 of 15 Downloaded on : Mon Apr 10 20:39:13 IST 2023

C/SCA/24043/2022 JUDGMENT DATED: 06/04/2023

11. The principles of res subjudice embodied in section 10 of the Code is to prevent courts of concurrent jurisdiction from simultaneously entering and adjudicating upon two parallel litigations in respect of the same cause of action, the same subject matter and the same relief. The policy of law is to confine a plaintiff to one litigation thus obviating the possibility of two contradictory verdicts by one and the same Court in respect of the same relief. The important words contained in section 10 are "the matter in issue is directly and substantially in issue in a previously instituted suit". Hence, when the matter in controversy is the same, then only section 10 applies. When it is different, the section has no application. The basic purport of section 10 is to avoid multiplicity of proceedings and to avoid antithetical decision or conflicting decision. It also aims to avert inconvenience to the parties and gives effect to the rule of res judicata. Saving of time and energy of the Court is bedrock of the principles.

11.1 For application of section 10, following conditions must be satisfied.

(i) There must be two suits, one previously instituted and the other subsequently instituted.
(ii) The matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit.
(iii) Both the suits must be between the same parties or their representatives.
(iv) The previously instituted suit must be pending in the same Court in which the subsequent suit is brought or in any other Court in India or in any Court beyond the limits of India established or continued by the Central Government or before the Supreme Court.
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C/SCA/24043/2022 JUDGMENT DATED: 06/04/2023

(v) The Court in which the previous suit is instituted must have jurisdiction to grant the relief claimed in the subsequent suit.

(vi) Such parties must be litigating under the same title in both the suits."

11.2 As soon as the above conditions are satisfied, a Court is prevented from proceeding with the suit filed subsequently as the provisions contained in section 10 starts with non-obstance clause makes it mandatory and no discretion is left with the Court. However, it is necessary for attraction of section 10 that the entire subject matter in the controversy must be same between the previous suit and the subsequent suit between the same party. Mere common ground between the previous and subsequent suit would not be sufficient. The test for applicability of section 10 is whether the decision in a previously instituted suit would operate as res judicata in the subsequent suit. If it is so, the subsequent suit must be stayed.

12. In case of Aspi Jal (supra), the Hon'ble Apex Court in para 9 to 11 held as under:-

"9. Section 10 of the Code which is relevant for the purpose reads as follows:
" 10. Stay of suit.- No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.
Explanation.- The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same Page 8 of 15 Downloaded on : Mon Apr 10 20:39:13 IST 2023 C/SCA/24043/2022 JUDGMENT DATED: 06/04/2023 cause of action."

From a plain reading of the aforesaid provision, it is evident that where a suit is instituted in a Court to which provisions of the Code apply, it shall not proceed with the trial of another suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. For application of the provisions of Section 10 of the Code, it is further required that the Court in which the previous suit is pending is competent to grant the relief claimed. The use of negative expression in Section 10, i.e. "no court shall proceed with the trial of any suit" makes the provision mandatory and the Court in which the subsequent suit has been filed is prohibited from proceeding with the trial of that suit if the conditions laid down in Section 10 of the Code are satisfied. The basic purpose and the underlying object of Section 10 of the Code is to prevent the Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief. This is to pin down the plaintiff to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to protect the defendant from multiplicity of proceeding.

10. The view which we have taken finds support from a decision of this Court in National Institute of Mental Health & Neuro Sciences vrs. C.Parameshwara, (2005) 2 SCC 256 in which it has been held as follows:

" 8. The object underlying Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The object underlying Section 10 is to avoid two parallel trials on the same issue by two courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the civil court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res-judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject-matter in both the suits is identical. The key words in Section 10 are "the matter in issue is directly and substantially in issue" in the previous instituted suit. The words "directly and Page 9 of 15 Downloaded on : Mon Apr 10 20:39:13 IST 2023 C/SCA/24043/2022 JUDGMENT DATED: 06/04/2023 substantially in issue" are used in contradistinction to the words "incidentally or collaterally in issue". Therefore, Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject- matter in both the proceedings is identical."

11. In the present case, the parties in all the three suits are one and the same and the court in which the first two suits have been instituted is competent to grant the relief claimed in the third suit. The only question which invites our adjudication is as to whether "the matter in issue is also directly and substantially in issue in previously instituted suits". The key words in Section 10 are "the matter in issue is directly and substantially in issue in the previously instituted suit". The test for applicability of Section 10 of the Code is whether on a final decision being reached in the previously instituted suit, such decision would operate as res-judicata in the subsequent suit. To put it differently one may ask, can the plaintiff get the same relief in the subsequent suit, if the earlier suit has been dismissed? In our opinion, if the answer is in affirmative, the subsequent suit is not fit to be stayed. However, we hasten to add then when the matter in controversy is the same, it is immaterial what further relief is claimed in the subsequent suit."

13. Coming back to the case on hand, it is an admitted position that the petitioner company has instituted suit against the respondent company i.e. JV Enterprise and Hiren Pravinbhai Chandarana claiming that he has sent and supplied goods of coriander seeds valued at Rs.1,38,23,093/- generating as many as 13 invoices of different dates. It is further the case of the petitioner company that out of this amount, which is due and outstanding, the respondent and Hiren Pravinbhai Chandarana have paid substantial amount and Rs.34,74,921/- is remaining and outstanding against the respondent company and Hiren Pravinbhai Chandarana. The suit is filed under Order 37 of the Code in a summary nature and thereof, the petitioner company prayed for the relief of money decree against the respondent company and Hiren Pravinbhai Chandarana under said Summary Page 10 of 15 Downloaded on : Mon Apr 10 20:39:13 IST 2023 C/SCA/24043/2022 JUDGMENT DATED: 06/04/2023 Jurisdiction. The second suit that is filed by Mr. Tulsidas Kakkad being proprietor of M/s J.V. Enterprise before the Principal Senior Civil Judge, Gondal, whereupon an application Exh.18 was unsuccessfully moved by the present petitioner company for staying the suit, came out with a case that he has advanced the amount to the petitioner company in tune of Rs.1,03,48,172/- for purchasing the coriander seeds and has remitted the payment through RTGS mode. The suit is filed against the petitioner company only under ordinary Civil Jurisdiction, but Commercial Court.

14. Taking both the suits on its apparent face, what transpires is that the first suit filed by the petitioner company alleges recovery of alleged amount from two persons. Along with respondent company, Mr. Hiren Pravinbhai Chandarana is also made defendant in the first suit. The plaintiff of the suit has not separated the role of respondent company i.e. JV Enterprise through proprietor Tulsidas Kakkad and Hiren Pravinbhai Chandarana in paying the amount. Whereas, in second suit filed by the respondent company through proprietor Tulsidas Kakkad, he has not averred even whisper about the role of Hiren Pravinbhai Chandarana. Moreover, mode of payment alleges are different. Thus, principally, it can be said that the transaction, which is claimed by both the parties, may be one and the same, but matter in issue directly and subsequently are not same in both the suits. The first suit seeks recovery claiming that it has supplied the goods and the second suit claims recovery alleging Page 11 of 15 Downloaded on : Mon Apr 10 20:39:13 IST 2023 C/SCA/24043/2022 JUDGMENT DATED: 06/04/2023 that no goods was ever supplied. Even cause of action stated in both the suits are different. Parties litigating in both the suits are also not the same and not under same Jurisdiction. Hence, condition and test of section 10 of the Code does not satisfy.

15. It is apt to note that the power under Article 227 of the Constitution of India is supervisory. The High Court, while exercising supervisory power under Article 227 of the Constitution of India, does not act as an Appellate Court . It has no reason to review or reanalyze the evidence upon which determination is made by Court below jurisdiction under Article 227 of the Constitution of India, is limited in nature. It cannot be exercised ordinarily to palm over the view arrived at by the Court below until find that the view arrived at by the Court below is palpably wrong or arbitrary. If, two views are possible, in absence of perversity in the impugned order, no interference can be called. The law, in this regard is well settled by the Honourable Apex Court in the case of Mohd. Yunus Vs. Mohd. Mustaqim and Ors. , reported in AIR 1984 Supreme Court 38. Paragraph No. 7 is relevant, which is extracted herein below;

"7. The supervisory Jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority," and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Art. 227, the High Court does not act as an Appellate Court or Page 12 of 15 Downloaded on : Mon Apr 10 20:39:13 IST 2023 C/SCA/24043/2022 JUDGMENT DATED: 06/04/2023 Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior Court or Tribunal purports to be based or to correct errors of law in the decision."

16. Yet another decision of the Honourable Apex Court in the case of Shalini Shyam Shetty And Another vs. Rajendra Shankar Patil, reported in (2010) 8 Supreme Court Cases 329 , can be referred; wherein, the scope, ambit and nature of the power vested with the High Court under Article 227 of the Constitution of India is discussed in paragraph 49 is relevant, which is extracted below:

"49 On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
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(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority'.

(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to Page 14 of 15 Downloaded on : Mon Apr 10 20:39:13 IST 2023 C/SCA/24043/2022 JUDGMENT DATED: 06/04/2023 a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality."

17. Considering the law laid down by the Honourable Apex Court in background of the facts of the case on hand, it appears that in impugned order, the Trial Court has discussed the facts and the provisions of law thoroughly in context of Section 10 of the Code rightly and correctly, therefore, we do not find any reason warranting interference in the impugned order. The judgment relied upon by learned advocate Mr. Amin for the petitioners is on different facts and hence, does not lend any support.

18. In the result, the impugned order does not require any interference and therefore, present petition fails and stands dismissed. Rule discharged.

(ASHUTOSH SHASTRI, J) (J. C. DOSHI,J) VISHAL MISHRA Page 15 of 15 Downloaded on : Mon Apr 10 20:39:13 IST 2023