Karnataka High Court
Mrs Celine Lobo vs Mrs Stella Saldanha on 19 September, 2023
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2023:KHC:33953
RFA No. 1082 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR FIRST APPEAL NO. 1082 OF 2023 (DEC)
BETWEEN:
1. MRS CELINE LOBO
D/O LATE MARTIN SALDANHA
W/O DENIS STEPHEN LOBO
AGED ABOUT 85 YEARS
PRESENTLY R/AT NO.3
HARALD HOUSE
VIDYAVIHAR WEST
MUMBAI - 400 086
ALSO R/A FLAT NO.1502, BOULEWARD-4
THE ADDRESS, OPP: R. CITY MALL,
GHATKOPAR (W)
MUMBAI - 400 086
REPRESENTED BY HER GPA AND DAUGHTER
MRS. PRITI PREMLAL
Digitally signed by
VEDAVATHI A K W/O. MR. PREMLAL KRISHNAN
Location: High Court
of Karnataka AGED ABOUT 48 YEARS
R/A FLAT NO.1502, BOULEWARD-4
THE ADDRESS OPP: R. CITY MALL
GHATKOPAR(W)
MUMBAI - 400 086
...APPELLANT
(BY SRI. ANANDARAMA K., ADVOCATE
AND MS. N. NANDITA DAS, ADVOCATE)
AND:
1. MRS STELLA SALDANHA
W/O LATE EDWARD SALDANA
AGED ABOUT 74 YEARS
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RFA No. 1082 of 2023
2. MRS SHANTHI SHERADIN SALDANHA
D/O LATE EDWARD SALDANHA
C/O MR STELLA SALDANHA
AGED ABOUT 47 YEARS
3. MRS LAUREL SEEMS SALDANHA
D/O LATE EDWARD SALDANHA
C/O MR STELLA SALDANHA
AGED ABOUT 42 YEARS
PETITIONERS 1 TO 3 ARE
R/O DOOR NO.3-28-2284
SALDANHA GARDENS
KADRI TEMPLE ROAD
KADRI
MANGALORE - 575 002
4. MISS MARIA SALDANHA
D/O LATE VALENTINE SALDANHA
AGED ABOUT 57 YEARS
4C/501, DREAMS COMPLEX
DREAMS MALL ROAD
BHANDUP WEST
MUMBAI - 400 078
5. MR DONALDA SALDANHA
S/O LATE VALENTINE SALDANHA
AGED ABOUT 57 YEARS
IST FLOOR, ROYAL CLASSIC TOWER
MULUND GOREGAON LINK ROAD
NEAR R. SWAMY ROAD
SALPA DEVI PADA
MULUND WEST
MUMBAI - 400 080
6. MRS SHOBHA SALDANHA
D/O LATE VALENTINE SALDANHA
AGED ABOUT 49 YEARS
4C/502, DREAMS COMPLEX
DREAMS MALL ROAD
BHANDUP WEST
MUMBAI - 400 078
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RFA No. 1082 of 2023
7. MR RONALD SALDANHA
S/O LATE VALETINE SALDANHA
AGED ABOUT 54 YEARS
701, 7TH FLOOR
RAJ HERITAGE TOWER
OPP. MARY IMMACULATE SCHOOL
MANDAPESHWAR ROAD
DAHISAR WEST
MUMBAI - 400 403
...RESPONDENTS
(BY SRI. K RAVISHANKAR, ADVOCATE AND
MS. SHUBHA, ADVOCATE FOR R1 TO R3
NOTICE SERVED TO R4 TO R7)
THIS RFA IS FILED UNDER SECTION 96 READ WITH
ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 19.04.2023 PASSED IN O.S.NO.134/2020 ON
THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDE AND CJM,
MANGALURU D.K. DISMISSING THE SUIT FOR DECLARATION.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant under Section 96 of CPC for setting aside the order passed by Trial Court in O.S.No.134/2020 dated 19.04.2023.dismissing the suit on the preliminary issue No.3.
2. Heard learned counsel for the appellant and learned counsel for the respondents. -4-
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3. For the sake of convenience, the parties in this appeal shall be referred to, in terms of their status and ranking before the Trial Court. The appellant was plaintiff and the respondents were defendants before the Trial Court.
4. The case of the plaintiff before Trial Court is that, the plaintiff filed suit, seeking the relief of declaration, that the compromise decree for the partition dated 10.01.1991 in O.S.No.1570/1990, on the file of the Principal Munsiff, Mangaluru, is null and void and not binding on the plaintiff. Further sought relief for partition of the schedule properties into 36 equal shares and to allot 12 equal shares to the plaintiff, out of 36 equal shares and also for the future mesne profits.
5. The defendants appeared and filed the written statement before the Trial Court, by taking various contentions and also the contention that the 'Will' was executed by the father in the name of Edward Saldhana and Valentine Saldhana. The suit was filed by the Edward -5- NC: 2023:KHC:33953 RFA No. 1082 of 2023 Saldhana who is the husband of the defendant No.1 and the father of the defendant Nos.2 and 3 filed the suit in O.S.No.1570/1990, which was compromised only between Edward Saldhana (husband of defendant No.1 and father of defendant Nos.1 and 2 ) and Valentine Saldhana (the father of defendant Nos.4 to 7). The compromise decree was passed on 10.01.1991. Therefore, they raised objection, that the independent suit is not maintainable and the plaintiff is required to file the application before the same court, in view of the bar under Order 23 and Rule 3A of CPC. The Trial Court based upon the pleading, framed 7 issues. The issue No.3 was considered as preliminary issue, which is referred as under:-
"ISSUE NO.3.
"Whether this Court has jurisdiction to declare that the compromise Decree dated 10.01.1991 in O.S.No.1570/1990 on the file of Principal Munsiff, Mangalore is null and void?"
6. After hearing the arguments the Trial Court answered the Issue No.3, in the affirmative, in favour of -6- NC: 2023:KHC:33953 RFA No. 1082 of 2023 the defendants. The suit came to be dismissed, as not maintainable and directed the plaintiffs to challenge the same, by filing application before the same court, under Order 23 Rule 3A of CPC vide impugned judgment. The same is challenged before this court by the plaintiff.
7. Learned counsel for the plaintiff has strenuously contended, that the order passed by the Trial Court on preliminary issue is not correct, illegal and perverse, as the appellant was not at all party to the suit in O.S.No.1570/1990 and that the 'Will' was alleged to be executed by her father. After filing suit for partition, the suit was compromised between parties and the decree was obtained by the parties. The plaintiff was not at all party to the suit in O.S.No.1570/1990, therefore judgment and compromise decree was not binding on the plaintiff. The plaintiff is entitled for the share in the property of the father. Therefore, independent suit is maintainable. Hence prayed for allowing the appeal. Further, learned -7- NC: 2023:KHC:33953 RFA No. 1082 of 2023 counsel for the appellant, relied upon the judgment of the co-ordinate bench of this court in ILR 2021 KAR 338.
8. Per contra, learned counsel for respondents, has strenuously objected and contended that, whether the appellant/plaintiff was party or stranger, she cannot file separate suit for setting aside the compromise decree, as not binding, without challenging the decree. The clever drafting of 'not binding' is not maintainable. Further submits, the Hon'ble Supreme Court has categorically stated, in the case reported in 2020 6 (SC) 629 in case of Trilokinath Singh Vs Anirudh Singh (D) through Lrs, that even if plaintiff is stranger, he cannot file separate suit and the plaintiff required to file application before the same court, for setting aside the said compromise decree, in view of the bar under Order 23 rule 3A of CPC. Therefore, prayed for dismissing the appeal.
9. Both the learned counsel, relied upon the judgment of Hon'ble Supreme Court as under; -8-
NC: 2023:KHC:33953 RFA No. 1082 of 2023 (1) In (2022) 5 SCC 736 in the case of Sree Surya Developers and Promoters Vs N. Sailesh Prasad and Ors, (2) In 2020 6 (SCC) 629 in the case of Trilokinath Singh Vs Anirudh Singh (D) through Lrs, (3) Also, the judgment passed by the co-ordinate bench of this Court, in case of MSA.No.72/2019.
(4) Learned counsel for the appellant also relied upon the judgment passed by the Delhi High Court in 2023 SCC Online Del 3876.
10. Having heard the arguments, perused the records. The point that arises for my consideration is, • Whether the appellant/plaintiff is having right to file a separate suit by challenging the compromise decree in O.S.No.1570/1990 dated 10.1.1991 wherein order passed by the Trial Court dismissing the suit, as the preliminary issue calls for any interference of this court?
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NC: 2023:KHC:33953 RFA No. 1082 of 2023 Both the counsel for the appellant and respondents relied upon the judgment of Hon'ble Supreme Court in Trilokinath Singh's stated supra at paragraph Nos. 15, 16 & 20 which is referred as under;
"15. What has emerged as a legislative intent has been considered in extenso by this Court in Pushpa Devi Bhagat v. Rajinder Singh [Pushpa Devi Bhagat v. Rajinder Singh, (2006) 5 SCC 566] , after taking note of the scheme of Order 23 Rule 3 and Rule 3-A added with effect from 1-2-1977. The relevant paragraphs are as under :
(SCC p. 576, para 17)
"17. The position that emerges from the amended provisions of Order 23 can be summed up thus:
(i) No appeal is maintainable against a consent decree having regard to the specific bar contained in Section 96(3) CPC.
(ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) of Rule 1 Order 43.
(iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3-A.
(iv) A consent decree operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 Order 23.
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NC: 2023:KHC:33953 RFA No. 1082 of 2023 Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree is nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made. The second defendant, who challenged the consent compromise decree was fully aware of this position as she filed an application for setting aside the consent decree on 21-8-2001 by alleging that there was no valid compromise in accordance with law. Significantly, none of the other defendants challenged the consent decree. For reasons best known to herself, the second defendant within a few days thereafter (that is on 27-8-2001) filed an appeal and chose not to pursue the application filed before the court which passed the consent decree. Such an appeal by the second defendant was not maintainable, having regard to the express bar contained in Section 96(3) of the Code." (emphasis supplied)
16. The scope of intent of Order 23 Rule 3 and Rule 3-A was further considered by this Court in R. Rajanna v. S.R. Venkataswamy [R. Rajanna v. S.R. Venkataswamy, (2014) 15 SCC 471 : (2015) 4 SCC (Civ) 238] wherein this Court held as under : (SCC p. 474, para 11) "11. It is manifest from a plain reading of the above that in terms of the proviso to Order 23 Rule 3 where one party alleges and the other denies adjustment or satisfaction of any suit by a lawful agreement or compromise in writing and signed by the parties, the court before whom such question is raised, shall decide the same. What is important is that in terms of Explanation to Order 23 Rule 3, the agreement or compromise shall not be deemed to be lawful within the meaning of the said Rule if the same is void or voidable under the Contract Act, 1872. It follows that in every case where the question arises whether or not there has been a lawful agreement or compromise in writing and
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NC: 2023:KHC:33953 RFA No. 1082 of 2023 signed by the parties, the question whether the agreement or compromise is lawful has to be determined by the court concerned. What is lawful will in turn depend upon whether the allegations suggest any infirmity in the compromise and the decree that would make the same void or voidable under the Contract Act. More importantly, Order 23 Rule 3-A clearly bars a suit to set aside a decree on the ground that the compromise on which the decree is based was not lawful. This implies that no sooner a question relating to lawfulness of the agreement or compromise is raised before the court that passed the decree on the basis of any such agreement or compromise, it is that court and that court alone who can examine and determine that question. The court cannot direct the parties to file a separate suit on the subject for no such suit will lie in view of the provisions of Order 23 Rule 3-A CPC. That is precisely what has happened in the case at hand. When the appellant filed OS No. 5326 of 2005 to challenge the validity of the compromise decree, the court before whom the suit came up rejected the plaint under Order 7 Rule 11 CPC on the application made by the respondents holding that such a suit was barred by the provisions of Order 23 Rule 3-A CPC. Having thus got the plaint rejected, the defendants (respondents herein) could hardly be heard to argue that the plaintiff (appellant herein) ought to pursue his remedy against the compromise decree in pursuance of OS No. 5326 of 2005 and if the plaint in the suit has been rejected to pursue his remedy against such rejection before a higher court."
20. Thus, after the amendment which has been introduced, neither any appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by Rule 3-A of Order 23 CPC. As such, a right has been given under Rule 1-A(2) of Order 43 to a party, who denies the compromise and invites order of the court in that regard in terms of the proviso to Order 23 Rule 3 CPC while preferring an appeal against the decree. Section 96(3) CPC shall not be a bar to such an appeal, because it is applicable where the factum of compromise or agreement is not in dispute."
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NC: 2023:KHC:33953 RFA No. 1082 of 2023 Learned counsel for the respondents has strenuously contended that in Trilokinath Singh's stated supra, at para 23 of the judgment, the Hon'ble Supreme Court has categorically held, that even a person who is not a party to the compromise decree, he cannot file a separate suit in view of the bar under Order 23 Rule 3-A of the CPC. For the convenience the judgment of the Hon'ble Supreme Court at paragraph No.23 is referred as under;
"23. In other words, the appellant can only claim through his predecessor -- Sampatiya, to the extent of rights and remedies available to Sampatiya in reference to the compromise decree. Merely because the appellant was not party to the compromise decree in the facts of the present case, will be of no avail to the appellant, much less give him a cause of action to question the validity of the compromise decree passed by the High Court by way of a substantive suit before the civil court to declare it as fraudulent, illegal and not binding on him. Assuming, he could agitate about the validity of the compromise entered into by the parties to the partition suit, it is only the High Court, who had accepted the compromise and passed decree on that basis, could examine the same and no other court under the proviso to Order 23 Rule 3 CPC. It must, therefore, follow that the suit instituted before the civil court by the appellant was not maintainable in view of specific bar under Rule 3-A of Order 23 CPC as held in the impugned judgment."
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11. The Hon'ble Supreme Court also held in a latest judgment reported in Sree Surya Developer's stated supra, where the Hon'ble Supreme Court has taken decisions, held at para 11 & 13 are as under;
"11. Now, so far as the submission on behalf of the plaintiff that in the suit the plaintiff has not specifically prayed for setting aside the compromise decree and what is prayed is to declare that the compromise decree is not binding on him and that for the other reliefs sought, the suit would not be barred and still the suit would be maintainable is concerned, the aforesaid cannot be accepted.
11.1. As held by this Court in a catena of decisions right from 1977 that a mere clever drafting would not permit the plaintiff to make the suit maintainable which otherwise would not be maintainable and/or barred by law. It has been consistently held by this Court that if clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.
11.2. In T. Arivandandam v. T.V. Satyapal [T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467] , it is observed and held as under : (SCC p. 470, para 5) "5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful -- not formal -- reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he
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NC: 2023:KHC:33953 RFA No. 1082 of 2023 should exercise his power under Order 7 Rule 11CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10CPC. An activist Judge is the answer to irresponsible law suits."
11.3. In Ram Singh v. Gram Panchayat Mehal Kalan [Ram Singh v. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364] , this Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation.
13. As observed hereinabove and it is not in dispute that as such Respondent 1 -- original plaintiff has already moved an appropriate application before the court concerned, which passed the decree setting aside the compromise decree by submitting an application under Order 23 Rule 3-ACPC, therefore, the said application will have to be decided and disposed of in accordance with law in which all the defences/contentions which may have been available to the respective parties on the validity of the compromise decree would have to be gone into by the court concerned in accordance with law and on its own merits."
In the above said case, at paragraph No.13 the Hon'ble Supreme Court has held that for challenging the compromise decree, 'the respective parties on the validity of the Compromise Decree would be kept open to be considered into by the same court concerned, in accordance with law, on its own merits'.
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12. The co-ordinate bench of this court in ILR 2021, 338 in case of Susheela and others Vs Vijaykumar case has held at paragraph Nos. 16, 17, 18 as follows;
"16. Thus, the bar contemplated under Rule 3A would be applicable only to the persons who were parties to the compromise thereby meaning parties to the suit and it would have no application to the persons who are not parties to the suit.
17. If the arguments of the learned counsel were to be accepted, then a compromise entered into between two parties to a suit, would bind not only the parties to the compromise but also to all other persons who may possess an independent and distinct right over the property, which was the subject matter of the compromise, even if they are not parties to a compromise. This would result in an anomalous result and nullify the rights of persons who have an independent right over the property which was the subject matter of a compromise and that cannot be the intent of the law.
18. In other words, if the submission of the learned counsel is accepted, in a given case, even a collusive compromise decree over a property, would have the effect of depriving all rights a third party may possess over the land independently. This, clearly, would not be the bar envisaged under R.3A."
13. The co-ordinate bench of this court has held that a person who is not a party to the compromise decree, he can maintain the suit and need not file application before the same court. Another co-ordinate bench held in MSA No.72/2019 dated 7.7.2022 in case of
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NC: 2023:KHC:33953 RFA No. 1082 of 2023 Sri. G. N. Lakshmi Narasimha Vs. Smt. V. Mala and Ors., case on the same point, the co-ordinate bench has taken divergent view that, the appellants shall have to go before the same court and cannot maintain a separate suit. The co-ordinate bench also relied upon the Hon'ble Supreme Court in case of Trilokinath Singh's and Sree Surya Developer's case also in case of Janakiammal Vs S.K.Kumarasamy and Ors in case of (2021) 9 SCC
114.
14. On careful consideration of the judgment of the co-ordinate benches, though both the co-ordinate benches taken different view, but when the Hon'ble Supreme Court judgment is available, I am of the view, the judgment of the Hon'ble Supreme Court is required to be considered than the judgment of co-ordinate benches. Once again, I want to verify paragraph No.23 of the Trilokinath Singh's case, which has categorically held as under:
"In other words, the appellant can only claim through his predecessor to the extent of rights and
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NC: 2023:KHC:33953 RFA No. 1082 of 2023 remedies available to in reference to the compromise petition."
The Hon'ble Supreme Court further held, "Merely because the appellant was not party to the compromise decree, in the facts of the present case, will be of no avail to the appellant, much less give him a cause of action, to question of the validity of the compromise decree passed by the High Court by way of a substantive suit before the civil court to declare it as fraudulent, illegal and not binding on him".
The Hon'ble Supreme Court further held:
"Assuming he could agitate about the validity of the compromise entered into by the parties to the partition suit. It is only the High Court, who had accepted the compromise and passed decree, on that basis could examine the same and no other court under the proviso to Order 23 Rule 3 of CPC. It must , therefore follow that the suit instituted before the civil court by the appellant was not maintainable in view of the specific bar under Order 23 Rule 3 A of CPC, as held in the impugned judgment'.
15. On careful reading of the interpretation made by the Hon'ble Supreme Court, which has categorically held, even for setting aside the compromise, or not binding on the plaintiff, the court which allowed the compromise decree or passed the decree, has power to set aside the
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NC: 2023:KHC:33953 RFA No. 1082 of 2023 compromise decree and no other Court can exercise that power, in view of the bar under Order 23 Rule 3A of CPC. Similarly, the Hon'ble Supreme Court in Sree Surya Developer's case where the Hon'ble Supreme Court has categorically held, that clever drafting of the plaint, instead of seeking for setting aside the compromise decree, merely mentioning the compromise decree is not binding on him, that cannot be a ground for filing a separate suit. The contention of the learned counsel before Hon'ble Supreme Court has not been accepted and has held as under:
"Merely a clever drafting of stating that the compromise decree is not binding on the plaintiff, as the plaintiff was not made as party in the compromise suit, which cannot be a ground to file separate suit for setting aside the compromise decree passed by the court'.
It is nothing but indirectly setting aside the compromise between the parties in a suit.
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16. Therefore, merely because a suit was independently filed, the court cannot set aside the compromise decree as not binding. It is nothing but indirectly setting aside the compromise decree. Therefore, the parties required to file application before the same court, where the compromise decree was passed. Therefore, the intention of the legislature bring the bar under Order 23 Rule 3A of the CPC, for filing separate suit. Therefore, on that context the Hon'ble Supreme Court has held categorically, the parties when he/she is a stranger, cannot file separate suit for setting aside the compromise decree and have to agitate the same before the said court. Otherwise, the compromise decree or determination of the right by the said court, which had issued the compromise decree, will stand as undisturbed. The other parties cannot state that the compromise is not binding, will not conclude the determination of the rights of the parties.
17. Therefore, I am of the view, the independent suit filed by the plaintiff before the court for seeking relief
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NC: 2023:KHC:33953 RFA No. 1082 of 2023 of compromise decree stating that it is not binding on the plaintiff, is not maintainable. The trial Court rightly dismissed the suit on the preliminary issue No.3. Therefore, the order passed by the Trial Court on the preliminary issue, dismissing the suit does not call for any interference of this court.
Therefore, I am of the view, considering the decisions of Hon'ble Supreme Court, in the aforementioned case, the appeal deserves to be dismissed.
Accordingly, the appeal is dismissed. Consequently, pending interlocutory application, if any, does not survive for consideration. Accordingly, it is dismissed.
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JUDGE AKV List No.: 1 Sl No.: 31