Gujarat High Court
Naynaben Babubhai & 3 vs Keti Farmaji Paliya & 3 on 3 February, 2014
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/14574/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14574 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER
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01. Whether Reporters of Local Papers may be allowed to see the Yes
judgment?
02. To be referred to the Reporter or not? Yes
03. Whether their Lordships wish to see the fair copy of the No
judgment?
04. Whether this case involves a substantial question of law as to the No
interpretation of the constitution of India, 1950 or any order made
thereunder?
05. Whether it is to be circulated to the civil judge? No
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NAYNABEN BABUBHAI & 3....Petitioner(s)
Versus
KETI FARMAJI PALIYA & 3....Respondent(s)
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Appearance:
MR DIPEN A. SANKHESARA FOR M/S.VYAS ASSOCIATES, ADVOCATE for
the Petitioner(s) No. 1 - 4
MS KJ BRAHMBHATT, ADVOCATE for the Respondent(s) No. 2 - 4
MS VARSHA BRAHMBHATT, ADVOCATE for the Respondent(s) No. 2 - 4
NOTICE NOT RECD BACK for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 03/02/2014
ORAL JUDGMENT
1. In present petition, the petitioners have prayed, inter alia, that:
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"10A. The Hon'ble Court may be pleased to issue
writ of certiorari and/or any other appropriate writ, order and direction to quash and set aside the order dated 1.8.2012 passed by the learned 4th Additional Senior Civil Judge, Surat below Exh.88;"
2. The petitioners are aggrieved by order dated 1.8.2012 whereby the learned trial Court has allowed the application (Exh.88) dated 8.8.2011 preferred by the original defendants whereby the defendants requested the learned trial Court to amend and recast the issues framed earlier and to add the proposed the issues. By the impugned order, the learned trial Court accepted the request and has recast the issues and out of the five proposed/additional issues suggested by the original defendants, the learned trial Court accepted three issues.
3. So far as the relevant facts are concerned, it has emerged from the record and submissions by learned advocate for the petitioners and the respondents that the petitioners are original plaintiffs who have filed a suit being Regular civil Suit No.148 of 2 C/SCA/14574/2012 JUDGMENT 2002 seeking declaration in respect of certain parcel of land which is the suit property. 3.1 The said suit is opposed and contested by the defendants, i.e. present respondents who have filed their written statement (Exh.18). 3.2 After considering the pleadings, the learned trial Court framed the issues at Exh.79 which, inter alia, included the issue 'whether the plaintiffs prove that the plaintiffs are in possession of the suit property from the time of their ancestors'. The issue framed at Exh.79 also includes the issue as to whether the plaintiffs are entitled to the prayers prayed for.
3.3 It appears that after the issues were framed, the plaintiffs filed affidavit in lieu of examinationinchief on 19.3.2012.
3.4 It was at that stage, the defendants
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moved an application (Exh.88) with a request that the issues may be recast and the proposed five issues may be settled/included.
3.5 The application was opposed by the plaintiffs who filed written objection/reply. 3.6 After considering the said application Exh.88 and the plaintiffs' objection, the learned trial Court, vide impugned order dated 1.8.2012, allowed the application at Exh.88 and agreed to recast the issues by adding three issues out of the five issues proposed by the respondent. 3.7 The petitioners are aggrieved with the said order. Hence present petition.
4. Mr.Sankhesara, learned advocate for M/s.Vyas Associates for the plaintiffs has appeared and he submitted that by proposing the additional issues, the defendants tried to develop and change the defence after the 4 C/SCA/14574/2012 JUDGMENT plaintiffs commenced their oral evidence and therefore, the learned trial Court ought not have allowed the application Exh.88. Learned advocate for the petitioners also submitted that the learned trial Court has not recorded any reason in support of the order partly allowing the application Exh.88. Learned advocate for the petitioners also assailed the impugned order on the ground that the application Exh.88 was moved after delay and submitted that on the said ground alone, the application ought to have been rejected. Learned advocate for the petitioners submitted that the Court had settled the issues at Exh.79 and therefore, the application by present respondents to recast the issues or to add new issues was barred by principles of res judicata and therefore, the Court should not have allowed the said application. Learned advocate for the petitioners relied on the decision by the Rajasthan High Court in case between Pannalal vs. Punaram [AIR 1997 AIHC 944]. He also relied on the decision by Hon'ble Apex court in Satyadhyan 5 C/SCA/14574/2012 JUDGMENT Ghoshal vs. Deorajin Debi [AIR 1960 SC 941].
5. Ms. Brahmbhatt, learned advocate has appeared for the respondents - defendants and opposed the petition. Learned advocate for the respondents relied on the provisions under Rule 5 of Order XIV of the Civil Procedure Code, 1908 and submitted that the Court may frame additional issues at any time before passing a decree and issues which are already framed, can also be changed, modified, substituted or deleted before passing a decree and that, therefore, the Court has not committed any error in allowing the application at Exh.88. During her submissions, learned advocate for the defendants - respondents relied on the reply affidavit filed by respondents No.2 to 4, wherein the said respondents have stated, inter alia, that:
"3) I say and submit that the respondent no.1 i.e. the defendant no.1 has expired on 25.10.2003. The petitioners though being aware about the said facts have not amended the causetitle of the SCA for the reasons best known to them. I say that the petitioners amended the cause title of the Misc. Appeal No.42/2004 filed by them in the District Court against the Order 6 C/SCA/14574/2012 JUDGMENT below Exhibit5 in Regular Civil Suit No.148 of 2002.
A copy of the said Amendment Application is annexed hereto and marked as AnnexureR1.
4) I say and submit that the respondents have taken contentions/defence about suit being hit by provisions of Tenancy Act and barred by law of limitation and also suppression of material fats about litigations qua said land between the parties in the Written Statement filed by them at Exhibit - 18 however, the issues were not framed and hence the respondents gave an application at Exhibit - 88 for framing said issue which came to be properly and legally allowed by the lower Court. I deny that such facts/contentions were neither made nor contested by the parties. A copy of said W.S. At Exhibit - 18 is annexed hereto and marked as Annexure R2.
6) I say and submit that the impugned Order is proper and legal inasmuch as the power to amend, add, strike out or delete an issue which can be exercised at any stage of the suit before a decree is passed. The words "at any time before passing a decree" in Order XIV Rule 5 of The Code of Civil Procedure, 1908 clearly show that such power may be exercised after the commencement of proceedings, at the stag of arguments or even at the close of arguments.
10) I say and submit that the respondents/defendants have filed their written statement at Exhibit18 and have specifically raised questions qua jurisdiction, limitation and suppression of material facts and hence the said issues are properly and legally framed for adjudicating the dispute between the parties. Thus, said issues are part of the pleadings and hence are proper and legal."
6. I have heard learned advocates for the petitioners and the respondents and have also considered the material placed on record of present petition.
7. On perusal of the application (Exh.88) 7 C/SCA/14574/2012 JUDGMENT dated 7.4.2012, it appears that the defendants claimed that the Court framed only three issues at Exh.79 vide order dated 8.8.2011, however, the issues framed at Exh.79 on 8.8.2011 do not reflect the objections and contentions raised by the defendants in the written statement (Exh.18).
8. On the said premise, the defendants requested the Court to consider the proposed five issues and to add and/or settle the said issues in the suit as part of the issues at Exh.79. The five issues proposed by the defendants read thus:
"Proposed issues:
1) Whether the Hon'ble Court has jurisdiction to conduct proceedings of this suit as per the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, or not?
2) Whether suit suffers from limitation of period or not?
3) Whether plaintiffs are entitled to get relief as prayed in the suit or not as they have made suppression of material facts by not referring earlier chapters regarding agricultural land mentioned in the suit, in the suit application ?
4) Whether panchnama drawn regarding said agricultural land by the Court Commission, can be admitted as evidence or not as land stated in the suit is agricultural land?
5) Whether plaintiffs are entitled to get relief as prayed in the suit or not, considering disputes taken by respondents in the written statement produced vide exhibit no. 18?"8
C/SCA/14574/2012 JUDGMENT
9. The learned trial Court considered the said application and heard the submissions by the contesting parties and passed the impugned order dated 1.8.2012.
10. While passing the order, the learned trial Court has taken into consideration the provisions under Order XIV Rule 5 and Order 20 Rule 5. The learned trial Court considered the objection raised on the ground of delay.
11. It is noticed from the order that the learned trial Court has acknowledged that in their written statement (Exh.18), the defendants categorically raised contention/objection on ground of limitation against the maintainability of suit and the defendants have also raised contention in light of provision under Section 85 of the Bombay Tenancy and Agricultural Lands Act, 1948.9
C/SCA/14574/2012 JUDGMENT
12. The learned trial Court also acknowledged the fact that though such ground and contention have been raised in the written statement, any issues reflecting the said objections and contentions by the defendants have not been settled at Exh.79, while settling the issues on 8.8.2011.
13. Having regard to the said aspects, the learned trial Court found that for proper determination of the real and substantive dispute between the parties, it would be necessary to recast the issues and to add some of the proposed issues in light of the contentions raised in the written statement. In the order, the learned trial Court observed, inter alia, that:
"4) Considering facts of case on hand, respondent has clearly taken dispute in his reply of exhibit no. 18 that this suit is barred by limitation and section 85 of the Tenancy Act, and considering pleadings of plaintiff and respondent also, such issue is necessary, but such issue has not been framed by the Court. Therefore, it appears to be necessary to frame both of said issues. The respondent has also taken such fact in para8 of his reply that the plaintiff has filed a present suit by suppressing material facts, and therefore, a demand of framing such issue is also reasonable. But, I don't believe it appropriate to 10 C/SCA/14574/2012 JUDGMENT frame proposed issue no. 4 and 5 taken by him because it is a subject of evaluation of evidence as to which document can be admitted up to what extent, and there is no need to frame any issue for the same. In accordance with disputes taken by respondent, there is no appropriate reason to frame such issue as to whether he is entitled to get such relief for the reason that issues have not been considered, and therefore, it does not appear any reasonable ground to frame proposed issue no. 4 and 5. But, it is just and reasonable ground to add proposed issue no. 1 to 3, and it is necessary to add as per said pleading. It is essential to have disputes taken by respondents also in the issue for decision of disputed subject, and for that, considering principles established in the aforesaid judgement and provisions of rule 5 of Order XIV of C.P.C., I pass the following order to add following issues in the interest of justice.
:: O R D E R :: The application of respondent is allowed and it is ordered to add proposed issue no. 1 to 3 stated in the application, in the exhibit no. 79.
If plaintiff wants to produce his further examinationinchief in connection with this, he can produce."
14. The three issues which the learned trial Court has settled (i.e. directed to be included, while allowing the request to recast the issues), are the first three issues proposed - suggested by the defendants vide application dated 7.4.2012.
15. The first amongst the three issues relates to the objections that the suit proceedings are barred in light of the provisions 11 C/SCA/14574/2012 JUDGMENT under the Bombay Tenancy and Agricultural Lands Act, 1948 and that, therefore, the learned Court lacks jurisdiction to entertain and decide the suit.
16. The second issue which the learned trial Court has included as one of the issues at Exh.79, reflects the objections against maintainability of the suit on ground of limitation.
17. It is not in dispute that the said contentions and objections have been raised by the defendants in their written statement itself, however, Exh.79 did not contain any issue related to and reflecting the said objections by the defendant.
18. Thus, when the defendant raised contentions/objections as regards the lack of jurisdiction and limitation in the written statement, then it was necessary for the Court to 12 C/SCA/14574/2012 JUDGMENT ensure that the issues which are finally settled by it for the purpose of finally deciding the case, should reflect the complete dispute between the parties and all points of dispute which may be required to be determined for final decision should be covered within the scope of settled issues.
19. It is true that the issues at Exh.79 appear to have been settled on 8.8.2011 and that the plaintiffs filed the affidavit in lieu of examinationinchief on 19.3.2012, whereas the application to recast the issues came to be filed on 7.4.2012, i.e. after the plaintiffs filed the affidavit in lieu of examinationinchief.
20. However, it is not the case even of the plaintiffs that at the relevant time, i.e. when the issues were framed, the written statement was not filed or that the written statement came to be filed after the issues were settled by the Court.
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21. In this context, it is relevant to take into account the provisions under Rule 1, Rule 2 and Rule 3 of Order XIV which read thus:
"1. Framing of issues. - (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.
(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.
(3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.
(4) Issues are of two kinds:
(a) issues of fact,
(b) issues of law.
(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after examination under rule 2 of Order X and after hearing the parties or their pleaders, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.
(6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.
2. Court to pronounce judgment on all issues. - (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of subrule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law 14 C/SCA/14574/2012 JUDGMENT only, it may try that issue first if that issue relates to -
(a) the jurisdiction of the Court, or
(b) a bare to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.
3. Materials from which issues may be framed. - The Court may frame the issues from all or any of the following materials:
(a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties;
(b) allegations made in the pleadings or in answers to interrogatories delivered in the suit;
(c) the contents of documents produced by either party."
22. According to the provisions contained under Rule 1, the issues for determination arise when proposition of fact or law is asserted by one party and denied by other. According to the said provisions, the issues may be of fact as well as of law.
23. According to the provisions under Rule 3 of Order XIV, the Court has to frame issues from the allegations made on oath by the parties from 15 C/SCA/14574/2012 JUDGMENT the allegations made in the pleadings or from the answers to the interrogatories and from the contents of the documents produced by either party.
24. Whereas, according to the provisions contained under Rule 2 of Order XIV, the Court is obliged to pronounce the judgment on all issues.
25. In this view of the matter, when the defendants had filed the written statement and in the written statement, the defendants had raised certain contentions against maintainability of the suit in light of the provisions contained under Bombay Tenancy and Agricultural Lands Act, 1948 then, in light of the position which emerges from the conjoint reading of Rule 1, Rule 2 and Rule 3 of Order XIV, the Court, at the stage when the written statement was filed or was taken on record with permission, settled the issues after taking into account the contentions in the written statement.
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26. At this stage and in background of provision under Rules 1, 2 and 3 of Order XIV, it would be appropriate to take into account provision under Rule 5 of Order XIV which reads thus:
"5. Power to amend and strike out issues. - (1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.
(2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced."
27. The provision employs the expression '... ... at any time before passing a decree' and the provision confers power on the Court to amend or frame additional issue/s. The provision also confers discretion to even strike out any issue which, in its view is wrongly framed.
28. A conjoint reading of the aforesaid provisions under Order XIV it emerges that Court has to take care while settling issues in light 17 C/SCA/14574/2012 JUDGMENT of allegations made in the pleadings, answers in the interrogatories, contents of documents and to ensure that all issues necessary to be answered for finally deciding the suit and the dispute in the suit are settled.
29. The expressions 'may at any time before passing a decree' in subrule (i) and subrule
(ii) of Rule 5 of Order XIV, are of wide amplitude and confer wide discretion on the Court to either frame additional issues or to amend the issues already settled or to even delete any issue which is wrongly framed or introduced at any time before decree. Of course, such jurisdiction has to be exercised judiciously and not ipse dixit or without legally sustainable justification.
30. In this context, the provision under Rule 3 of Order XIV becomes relevant inasmuch as if, despite material (either the written statement or documents produced by either parties 18 C/SCA/14574/2012 JUDGMENT or answers to interrogatories or the allegations made on oath by the parties; etc.) being available on record, any issue is not framed by the Court while settling the issues, then the Court would not be powerless and can amend, add or strike out issues at any stage, before the decree is passed.
31. When the grievance and dispute raised by the petitioners in present is examined in light of the abovementioned provisions and in light of the facts and circumstances discussed earlier, then it emerges that the objections raised by the petitioners against the impugned order in present petition are not justified or sustainable. In present case, it has emerged from the record and the submissions by learned advocates for the contesting parties that the defendants raised certain issues of law as well as fact in their written statement and in their reply the defendants also denied several propositions of fact and law asserted by the plaintiffs and the 19 C/SCA/14574/2012 JUDGMENT plaintiffs also opposed the contentions raised by the defendants and such contentions and counter contentions gave birth to several issues for determination by the Court, however, some of such relevant issues were not framed while settling the issues below Exh.79.
32. While settling the issues, the learned Court ought to have taken into consideration the contentions and objections raised by the defendants in their written statement and ought to have framed - settled such issues as would reflect the entire dispute.
33. It is the duty and obligation of Court to settle such issues which would reflect entire dispute and all aspects which may be required to be determined for final decision.
34. Even if it is assumed that the written statement came to be filed subsequently, then also the fact would remain that the written 20 C/SCA/14574/2012 JUDGMENT statement was accepted on record with the permission of the Court and once the Court permits the defendants to file written statement at subsequent stage, then also once the written statement is accepted on record, it would be necessary that appropriate issues which may reflect entire dispute and all aspects required to be determined for final decision and all issues which arise from the material contemplated under Rule 3 may be settled and if necessary the issues may be recast after taking into account the contentions and objections raised in the reply of the defendants so as to reflect entire dispute.
35. In present case, it is noticed that the first two issues which have been ordered to be included by the learned trial Court touch the jurisdiction of the Court to try the suit. Such contention is raised in light of the provisions under the Bombay Tenancy and Agricultural Lands Act, 1948. The other contention is raised on the 21 C/SCA/14574/2012 JUDGMENT ground of limitation.
36. In the facts and circumstances of the case and in light of the contentions and objections raised by the defendants, the jurisdiction and discretion exercised by the learned trial Court cannot be said to be arbitrary or unreasonable or perverse and cannot be faulted.
37. The third issue which the learned trial Court directed to be included after considering the application (Exh.88) dated 7.4.2012 was proposed on the ground that the plaintiffs suppressed the facts and details related to the nature and status of the land in dispute.
38. In this view of the matter, merely because the plaintiffs have placed on record affidavit in lieu of chief examination, the request to amend and recast the issues, more particularly the issues which, although, arise 22 C/SCA/14574/2012 JUDGMENT from the pleadings but are not framed, could not have been rejected by the learned trial Court and that, therefore, there is no reason or justification to interfere with the impugned order.
39. According to the defendants, land in dispute, i.e. suit property is agricultural land and that, therefore, the provisions under the Bombay Tenancy and Agricultural Lands Act, 1948 would be attracted and applicable.
40. According to the defendants, the said fact, being relevant and material fact, more particularly because it would affect the jurisdiction of the learned Court to try the suit, ought to have been disclosed by the plaintiffs, however, by not specifically disclosing the said fact, the plaintiffs, according to the defendants, suppressed the relevant and material fact.
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41. The learned trial Court considered the said aspect and upon examining the pleading,s i.e. plaint and the written statement considered it appropriate to frame an issue in light of the said contention and allegation.
42. When the said decision is examined in light of the facts of the case and in light of the nature and scope of dispute between parties and in view of the contentions and allegations raised by the defendants, it becomes clear that the decision of the learned trial Court and the impugned order cannot be said to be unjust or unreasonable or perverse. The learned Court has recast the issues and included such issues which the learned Court, upon examining the contentions and objections raised in the written statement, considered necessary for finally deciding entire dispute between the parties. Hence, the order cannot be faulted.
43. At this stage, it is pertinent that 24 C/SCA/14574/2012 JUDGMENT while partly granting the application (Exh.88) dated 7.4.2012, the learned trial Court has simultaneously permitted the plaintiffs to file additional/amended affidavit in lieu of examinationinchief.
44. Thus, the learned trial Court has permitted additional/further examinationinchief and thereby the Court has taken care of the interest of the plaintiff and the Court has balanced the equity and that, therefore, the interest of the plaintiffs cannot be said to have been adversely affected.
45. When the learned trial Court, upon examining the request to amend/recast the issues and after considering the objections, was satisfied that the proposed issues are required to be decided for finally determining the matters/disputes in controversy between the parties and upon being so satisfied, when the learned trial Court passed the order, then in 25 C/SCA/14574/2012 JUDGMENT such facts and circumstances, this Court does not find any reason or justification to interfere with the said decision and with the exercise of discretion and jurisdiction by the Court.
46. Learned advocate for the petitioners relied on the decision in case of Pannalal (supra). However, in light of the facts and circumstances of present case, which are materially different from the facts in the cited case, the decision would not assist the petitioners inasmuch as in the said decision, after examining the pleadings, the High Court found and came to specific conclusion that the issues framed by virtue of the order impugned in the cited decision were not relevant for disposal of the suit and the Court, in the cited case, also found that the issues which were ordered to be framed were improper and could have been avoided. Besides this, the amendment in the issues was sought for after 20 years and when both the parties had led the evidence, wherein in 26 C/SCA/14574/2012 JUDGMENT present case, the Court framed the issues on 8.8.2011 and the plaintiffs filed the affidavit in lieu of examinationinchief of the plaintiffs / witness on 19.3.2012 and within about 20 days, i.e. on 7.4.2012, the defendants moved the application requesting the Court to recast the issues. In that view of the matter, the cited decision does not help the petitioners. Moreover, it has emerged from the record that the issues which have been allowed by the learned trial Court vide impugned order, would be relevant and necessary because the said issues raise objection regarding the Court's jurisdiction to try the suit which concerns agricultural land.
47. In the second decision on which learned advocate for the petitioners placed reliance, i.e. the decision in case between Satyadhyan Ghosal vs. Deorajin Debi [AIR 1960 SC 941], Hon'ble Apex Court considered the scope and applicability of the principle of res judicata. 27
C/SCA/14574/2012 JUDGMENT Learned advocate for the petitioners relied on the observations in paragraphs No.7 and 8 of the decision, wherein Hon'ble Apex Court observed, inter alia, that principles of res judicata may apply between two stages in the same litigation where the learned trial Court or a higher Court has, at an earlier stage, decided the matter in one way or other. However, in the facts of present case, the said decision would not render any assistance to the petitioners inasmuch as merely by settling the issues, the Court cannot be said to have decided any matter in dispute between the parties, more particularly when the Court finds that while settling the issues the contentions and objections raised as regards the jurisdiction of the Court to try the suit (i.e. subject matter of the subject and/or maintainability of suit on ground of limitation) are not taken into account and the said issues are required to be dealt with and decided. Moreover, when the provision, i.e. provision under Rule 5 of Order XIV.
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48. In this view of the matter, it becomes clear that the learned advocate for the petitioners has failed to make out any case against the order impugned in present case. Learned advocate for the petitioners has also failed to demonstrate that the learned trial Court has committed any error of law or jurisdiction or that the learned trial Court exercised jurisdiction and discretion with illegality or materially irregularity or that the impugned order is perverse.
49. Any ground to interfere with the impugned order and to take different view is not made out. The petition fails and deserves to be rejected and is accordingly hereby rejected.
(K.M.THAKER, J.) Bharat 29