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Shobha Janardhan Masram Vs. Ganpat Gulabrao Thakre - Court Judgment

LegalCrystal Citation
CourtMumbai Nagpur High Court
Decided On
Case NumberWrit Petition No. 3527 of 2010
Judge
AppellantShobha Janardhan Masram
RespondentGanpat Gulabrao Thakre
Excerpt:
.....viii rule 6a - bombay money lenders act, 1946 - transfer of property act, 1882 - section 53a - gram nyayalayas act, 2008 - section 23, item (i)(a) in part i of second schedule - agreement to sale – non-performance of contract – jurisdiction of nyayalaya challenged - an agreement to sale property was executed by defendant in favor of plaintiff, for sale of suit field to plaintiff in which plaintiff paid an amount to defendant at the time of agreement and plaintiff was put in possession of suit field - after obtaining permission from district collector, sale-deed was to be executed by defendant on receiving balance amount from plaintiff, which he failed to do – further, defendant tried to obstruct possession of plaintiff – so, plaintiff filed suit  before..........evidence of the parties was recorded, the civil suit was transferred to the court of nyayadhikari, gram nyayalaya, sewagram which is established under the provisions of gram nyayalayas act, 2008. 6. the learned nyayadhikari, by the judgment dated 30-11-2009, concluded that the plaintiff proved that the agreement to sale was executed by the defendant in favour of the plaintiff on 25-11-1994, that the plaintiff had paid rs.15,000/- to the defendant as earnest money, that the sale-deed was to be executed after the plaintiff obtained written permission from the collector to sell the property. the learned nyayadhikari concluded that the plaintiff failed to prove that he was ready and willing to perform her part of the contract and that the plaintiff was entitled for the decree for specific.....
Judgment:

1. Heard Shri A.C. Dharmadhikari, the learned Advocate for the petitioner and Shri N.S. Deshpande, the learned Advocate for the respondent.

2. The petition is filed by the original plaintiff challenging the judgment and decree passed by the subordinate Court dismissing the claim of the original plaintiff for specific performance of the contract and allowing the counter-claim filed by the original defendant and granting decree in favour of the defendant for possession of the suit field.

3. The plaintiff filed the civil suit contending that an agreement to sale the property was executed by the defendant in favour of the plaintiff on 25-11-1994, by which the defendant agreed to sell the suit field to the plaintiff for Rs.50,000/-, that the plaintiff had paid Rs.15,000/- to the defendant at the time of the agreement and the plaintiff was put in possession of the suit field. The plaintiff pleaded that according to the agreement, the defendant was required to obtain written permission from the Collector to execute the sale-deed and after obtaining the written permission, the sale-deed was to be executed by the defendant on receiving the balance amount from the plaintiff. The plaintiff pleaded that the defendant had not applied for the written permission and the plaintiff had issued notices dated 06-01-1996 (Exhibit 42) and 10-11-1997 (Exhibit 40) which were neither replied nor any action was taken by the defendant in the matter. The plaintiff pleaded that the defendant tried to obstruct the possession of the plaintiff on 10-11-1997 and therefore, a complaint was made to the police. The plaintiff pleaded that the defendant along with his wife entered the suit field on 17-05-2006 and attempted to plough it and therefore, the plaintiff was required to file the civil suit praying for the decree for specific performance of the contract, for perpetual injunction and other ancillary reliefs.

4. The defendant filed the written statement opposing the claim of the plaintiff. The defendant pleaded that the plaintiff indulged in money lending. In 1994, the plaintiff required some money and therefore, he approached the plaintiff and the plaintiff had given the loan and had got executed the agreement as security for the loan. The defendant contended that the plaintiff was not put in possession of the suit field, however the plaintiff was in possession of the suit field in view of the order of temporary injunction which was passed in the civil suit and therefore, the defendant filed the counter-claim praying for the decree for possession of the suit field.

5. The civil suit was filed in the Civil Court, Wardha. After the evidence of the parties was recorded, the civil suit was transferred to the Court of Nyayadhikari, Gram Nyayalaya, Sewagram which is established under the provisions of Gram Nyayalayas Act, 2008.

6. The learned Nyayadhikari, by the judgment dated 30-11-2009, concluded that the plaintiff proved that the agreement to sale was executed by the defendant in favour of the plaintiff on 25-11-1994, that the plaintiff had paid Rs.15,000/- to the defendant as earnest money, that the sale-deed was to be executed after the plaintiff obtained written permission from the Collector to sell the property. The learned Nyayadhikari concluded that the plaintiff failed to prove that he was ready and willing to perform her part of the contract and that the plaintiff was entitled for the decree for specific performance of the contract and for permanent injunction. The learned Nyayadhikari concluded that the defendant failed to prove that the suit transaction was money lending transaction and hit by the provisions of the Bombay Money Lenders Act. The learned Nyayadhikari concluded that the defendant is entitled for possession of the suit field from the plaintiff. The learned Nyayadhikari accordingly dismissed the civil suit filed by the plaintiff and allowed the counter-claim filed by the defendant and directed the plaintiff to handover the possession of the suit field to the defendant.

The plaintiff being aggrieved by the judgment and decree passed by the trial Court filed Regular Civil Appeal No.248/2009. The learned Principal District Judge, by the impugned judgment, concurred with the findings recorded by the learned Nyayadhikari and dismissed the appeal.

The plaintiff being aggrieved in the matter has filed the writ petition.

7. Shri A.C. Dharmadhikari, the learned Advocate for the petitioner has submitted that the judgment and decree passed by the learned Nyayadhikari is without jurisdiction and unsustainable in law. It is submitted that the claim as made by the plaintiff in the civil suit praying for decree for specific performance of the contract and for permanent injunction could not have been entertained by the Gram Nyayalaya. It is submitted that the claim for possession of the suit field made by the defendant in the counter-claim also could not have been entertained by the Gram Nyayalaya. The submission is that the Gram Nyayalaya has jurisdiction to entertain the suits or proceedings of civil nature falling under classes of the disputes specified in Part I of the Second Schedule to the Gram Nyayalayas Act, 2008 and to try all classes of claims and disputes which may be notified by the Central Government under Section 14(1) and by the State Government under Section 14(3) of the Gram Nyayalayas Act, 2008. It is submitted that the claim made by the plaintiff in the civil suit and the claim made by the defendant in the counter-claim does not fall in the classes of disputes specified in Part I of the Second Schedule to the Gram Nyayalayas Act, 2008. Shri A.C. Dharmadhikari, the learned Advocate has made submissions relying on the entries in Part I of the Second Schedule to the Gram Nyayalayas Act, 2008 and has submitted that the entry at Item (i)(a) which reads “right to purchase of property” in Part I of the Second Schedule to the Gram Nyayalayas Act, 2008 has to be read along with the other entries in Part I of the Second Schedule to the Gram Nyayalayas Act, 2008 and accordingly, it has to be construed that the Gram Nyayalaya can entertain the civil disputes in respect of the claim for amenities in the properties and not in respect of the transfer of rights in the properties. To fortify his submission, the learned Advocate has relied on Item (i)(b)(c) of Part I of the Second Schedule to the Gram Nyayalayas Act, 2008 which refer to civil disputes relating to “use of common pasture” and for “regulation and timing of taking water from irrigation channel”. The learned Advocate has relied on the entries in Item (ii)(b)(c) of Part I of the Second Schedule to the Gram Nyayalayas Act, 2008 which refer to property disputes in respect of water channels and right to draw water from a Well or Tube Well. The learned Advocate has submitted that the entry in Item (ii)(a) of Part I of the Second Schedule to the Gram Nyayalayas Act, 2008, though shows that the Gram Nyayalaya can decide the dispute relating to possession, it is restricted in case of farm houses situated in the villages only. The learned Advocate, emphasizing on the entry in Item (ii)(a) of Part I of the Second Schedule to the Gram Nyayalayas Act, 2008, has submitted that the Legislature has consciously conferred the jurisdiction on the Gram Nyayalaya to deal with disputes relating to possession in respect of farm houses situated in the villages only and the jurisdiction to entertain and decide the dispute relating to possession of other properties is not given to the Gram Nyayalayas.

8. The learned Advocate for the petitioner has submitted that as per the provisions of Section 13(2) of the Gram Nyayalayas Act, 2008, the pecuniary limits of the Gram Nyayalaya are required to be specified by the High Court in consultation with the State Government by notification and in the present case the pecuniary limits of the Gram Nyayalaya are not specified as required by the provisions of Section 13(2) of the Gram Nyayalayas Act, 2008 and therefore, the Gram Nyayalaya could not have entertained and decided the civil suit and the counter-claim. Referring to the provisions of Section 16 of the Gram Nyayalayas Act, 2008, it is submitted that the transfer of the civil suit from the civil Court to the Gram Nyayalaya is not automatic and the transfer of the civil suit has to be made by the District Court and in the present case, it having not been done by the District Court, the transfer of the civil suit to the Gram Nyayalaya is illegal.

9. Shri A.C. Dharmadhikari, the learned Advocate referring to the provisions of Sections 23 and 24 of the Gram Nyayalayas Act, 2008 has submitted that the provisions of the Code of Civil Procedure which are not inconsistent with the provisions of the Gram Nyayalayas Act, 2008, are only applicable to the proceedings before the Gram Nyayalaya and the civil suits or proceedings are required to be disposed by the Gram Nyayalaya by following the procedure as laid down in Section 24 of the Gram Nyayalayas Act, 2008. Referring to the provisions of Section 31 of the Gram Nyayalayas Act, 2008, it is submitted that the proceedings before the Gram Nyayalaya are to be disposed summarily and referring to Section 30 of the Gram Nyayalayas Act, 2008, it is submitted that the provisions of the Indian Evidence Act, 1872 are not applicable to the proceedings before the Gram Nyayalaya. Referring to the provisions of Section 34 of the Gram Nyayalayas Act, 2008, it is submitted that only one appeal is provided against the judgment and decree passed by the Gram Nyayalaya and the judgment and decree passed by the District Court in appeal under Section 34(4) of the Gram Nyayalayas Act, 2008 is not appellable or revisable. It is submitted that because the civil suit and the counter-claim are decided by the Gram Nyayalaya, the petitioner is deprived of the right of second appeal.

10. As far as the merits of the matter are concerned, it is submitted that the subordinate Courts have recorded the findings in favour of the petitioner regarding the genuineness of the agreement to sale and the payment of the amount of earnest money by the petitioner to the respondent and that it was not a money lending transaction. It is submitted that default is on the part of the respondent in obtaining the written permission from the Collector to execute the sale-deed and therefore, the finding recorded by the subordinate Courts that the petitioner was not ready and willing to perform the part of the contract is unsustainable and the petitioner is entitled for decree for specific performance of the contract. It is submitted that the subordinate Courts have committed an error in dismissing the civil suit filed by the petitioner on the ground of limitation. It is submitted that the petitioner had given notices dated 06-01-1996 and 10-11-1997 asking the respondent to obtain the written permission from the Collector to execute the sale-deed and the respondent failed to take steps in the matter and therefore, the cause of action continued in favour of the plaintiff.

The learned Advocate has assailed the judgment and decree passed by the trial Court for possession, on the counter-claim filed by the respondent and has submitted that the petitioner was admittedly put in possession of the suit field by the respondent pursuant to the agreement of sale, on payment of the earnest money and therefore, the possession of the petitioner is protected under Section 53A of the Transfer of Property Act. It is submitted that the default in obtaining the written permission from the Collector to execute the sale-deed is on the part of the respondent and the inaction or waiting on the part of the petitioner in the matter cannot be treated as unwillingness on the part of the petitioner and she cannot be denied the protection under Section 53A of the Transfer of Property Act. The learned Advocate has submitted that the judgment and decree passed by the Gram Nyayalaya being without jurisdiction, it cannot be maintained and the learned District Judge has dismissed the appeal without considering these aspects and therefore, the judgment and decree passed by the subordinate Courts is required to be set aside and the matter has to be remitted to the civil Court for decision.

11. The learned Advocate for the petitioner has relied on the following judgments:

i) The Judgment given by this Court in the case of AmbadasKhanderao Hagvane and others .vs. Shaikh Razaq Shaikh Yakub and another reported in 2009(1) Mh.L.J. 471, on the point that the civil suit filed by the petitioner was within limitation and the learned Nyayadhikari has committed an error in dismissing the civil suit on the ground that it is barred by limitation.

ii) The Judgment given by the Hon'ble Supreme Court in the case of Cantonment Board and another .vs. Church of North India reported in (2012) 12 SCC 573, on the point that if the subordinate Court lacks inherent jurisdiction to deal with the matter, then the judgment/order passed by it can be challenged at any stage even in execution or in colateral proceedings.

iii) The Judgment given by the High Court of Punjab and Haryana in the case of JaskaranSingh .vs. Ajit Singh and Others in Civil Revision No.1179 of 2011.

iv) The Judgment given by the High Court of Punjab and Haryana in the case of SurinderPal Singh .vs. District Judge, Kurukshetra and others in Civil Revision No.703 of 2011.

v) The Judgment given by the High Court of Rajasthan at Jaipur Bench in the case of Raghunathand Others .vs. Mangi Lal and Others in Civil Writ Petition No.5002 of 2012.

The judgments at Sr. Nos.(iii), (iv) and (v) are on the issue relating to the jurisdiction of the Gram Nyayalaya to deal with the matters.

12. Shri N.S. Deshpande, the learned Advocate for the respondent has submitted that the petitioner had not raised the objection to the jurisdiction of the Gram Nyayalaya either before the Gram Nyayalaya or in the appeal before the District Court. Relying on the provisions of Section 21(2) of the Code of Civil Procedure, the learned Advocate has submitted that the objection regarding the pecuniary jurisdiction of the Gram Nyayalaya to entertain and decide the civil suit and the counter-claim cannot be considered at this stage inasmuch as the objection was not taken before the Gram Nyayalaya. The learned Advocate for the respondent has referred to the entry in Item (i)(a) of Part I of the Second Schedule to the Gram Nyayalayas Act, 2008 and has submitted that the Gram Nyayalaya has the jurisdiction to entertain and decide the civil disputes relating to “right to purchase of property”. It is submitted that each entry in Item (i)(ii) and (iii) of Part I of Second Schedule to the Gram Nyayalayas Act, 2008 is independent and not connected with the other entries. The learned Advocate for the respondent, relying on the provisions of Article 54 of the Limitation Act, has submitted that the petitioner should have filed the civil suit within three years of the agreement and in any case within three years from 10-11-1997 on which date the petitioner issued notice and on which date according to the petitioner, the respondent tried to dispossess the petitioner. It is submitted that the non-compliance of the notice dated 10-11-1997 and the silence on the part of the respondent amounts to refusal by the respondent to execute the sale-deed and therefore, the civil suit should have been filed within three years from 10-11-1997. It is submitted that admittedly, the respondent had not applied for obtaining the written permission of the Collector to execute the sale-deed and therefore, the petitioner cannot take the spacious plea that he waited for the respondent to apply for the written permission of the Collector in the matter till 2006. In support of the submission on the point of limitation, Shri N.S. Deshpande, the learned Advocate relied on the following judgments :

1) Judgment given in the case of R.K. Parvathraj Gupta .vs. K.C. Jayadeva Reddy reported in 2006(3) Mh.L.J. 1.

2) Judgment given in the case of GunwantbhaiMulchand Shah and others .vs. Anton Ellis Farel and others reported in 2006(3) Mh.L.J. 66.

3) Judgment given in the case of PanchananDhara and others .vs. Monmatha Nath Maity (dead) through LRs. and another reported in 2006(5) Mh.L.J. 209.

4) Judgment given in the case of NakubaiValu Dhokane since deceased through heirs and LR's Shakuntalabai Pandurang Jagtap and others .vs. Bhagwansingh Prakash Chandra reported in 2008(6) Mh.L.J. 105.

5) Judgment given in the case of AhmadsahabAbdul Mulla (2) (dead) by proposed LRs .vs. Bibijan and others reported in 2009(5) Mh.L.J. 117.

The learned Advocate for the respondent, relying on the provisions of Section 9 of the Limitation Act, has submitted that once the time begins to run, any subsequent disability or inability to institute the civil suit or make an application cannot stop it.

It is submitted that the objection raised on behalf of the petitioner about jurisdiction of the Gram Nyayalaya to entertain and decide the civil suit and the counter-claim is hyper technical and in any case it having not been raised before the subordinate Courts, it cannot be considered at this stage. The learned Advocate has relied on the judgment given in the case of Deepak Chaturaji Tabhane..vs.. Sunanda wd/o Laxman Tanmane and others reported in 2010(7) Mh.L.J. 438 in support of the submissions. It is prayed that the writ petition be dismissed with costs.

13. I have examined the material placed by the respective parties on the record of the writ petition.

As far as the challenge raised on behalf of the petitioner to the jurisdiction of the Gram Nyayalaya to entertain and decide the civil suit and the counter-claim, I find that such objection was neither raised before the Gram Nyayalaya nor in the appeal before the District Court.

The submission made on behalf of the petitioner, relying on the provisions of Section 13(2) of the Gram Nyayalayas Act, 2008, that the pecuniary limits of the Gram Nyayalaya have not been specified by the High Court in consultation with the State Government and no such notification is issued, it cannot be entertained in view of the provisions of Section 21(2) of the Code of Civil Procedure. The civil suit came to be transferred from the civil Court to Gram Nyayalaya after recording of the evidence. If the petitioner intended to take objection to the pecuniary limits of the jurisdiction of the Gram Nyayalaya, it was incumbent on the part of the petitioner to raise the objection before the Gram Nyayalaya at that stage. The petitioner failed to take the objection before the Gram Nyayalaya and had not taken objection relating to the pecuniary limits of the Gram Nyayalaya in the appeal before the District Court. In view of the provisions of Section 21(2) of the Code of Civil Procedure, I am not inclined to consider the objection as raised by the petitioner to the pecuniary limits of the Gram Nyayalaya, in the writ petition.

14. As far as the jurisdiction of the Gram Nyayalaya to entertain and decide the civil suit and the counter-claim is concerned, after examining the provisions of the Gram Nyayalayas Act, 2008 and the entries in Part-I of the Second Schedule to the Gram Nyayalayas Act, 2008, I am of the view that the Gram Nyayalaya has the jurisdiction to entertain and decide the civil suit and the counterclaim. The submission that the entry in Item (i)(a) in Part I of the Second Schedule to the Gram Nyayalayas Act, 2008 empowers the Gram Nyayalaya to decide the civil disputes in respect of the rights relating to the amenities in the property, is misconceived. If the submission as made on behalf of the petitioner in this regards is accepted, it would result in misreading the entry “right to purchase of property”. As per normal rule of interpretation, the words used in the statute has to be given their natural meaning and any meaning which restricts the jurisdiction of the Court to deal with the subject matter in respect of which jurisdiction is conferred by the statute, has to be avoided. The entry in Item (i)(a) in Part I of the Second Schedule to the Gram Nyayalayas Act, 2008 is clear and it cannot be given a restrictive meaning as submitted on behalf of the petitioner. In my view, the Gram Nyayalaya has the jurisdiction to entertain and decide the civil suit relating to “right of purchase of property” and consequently the Gram Nyayalaya can entertain and decide the civil suit praying for decree for specific performance of the contract in respect of the property which is situated within its jurisdiction.

15. The contention on behalf of the petitioner that the Gram Nyayalaya has no jurisdiction to entertain and decide the counterclaim and grant decree for possession, cannot be accepted. Section 23 of the Gram Nyayalayas Act, 2008 lays down that the provisions of the Code of Civil Procedure, in so far as they are not inconsistent with the provisions of the Gram Nyayalayas Act, 2008, shall apply to the proceedings before the Gram Nyayalaya and for the purposes of the said provisions of the Code of Civil Procedure, the Gram Nyayalaya shall be deemed to be the civil Court.

The learned Advocate for the petitioner has not been able to point out that the provisions of Order VIII Rule 6A of the Code of Civil Procedure are inconsistent with any provision of the Gram Nyayalayas Act, 2008. Consequently, the provisions of the Order VIII Rule 6A of the Code of Civil Procedure will be applicable to the proceedings before the Gram Nyayalaya and while entertaining the counter-claim under Order VIII Rule 6A of the Code of Civil Procedure, the Gram Nyayalaya shall be deemed to be the civil Court. Accordingly, it has to be held that the Gram Nyayalaya has the jurisdiction to entertain and decide the counter-claim.

16. The submissions made on behalf of the petitioner that the proceedings before the Gram Nyayalaya are to be decided summarily and the right of second appeal is not provided against the judgment and decree passed by the District Court in an appeal arising out of the judgment and decree passed by the Gram Nyayalaya, are inconsequential in the facts of the present case. The petitioner has not challenged the virus of the Act in the writ petition. In view of my conclusions that the Gram Nyayalaya has the jurisdiction to entertain and decide the civil suit and the counter-claim, the rights of the petitioner and the respondent will be governed by the provisions of the Gram Nyayalayas Act, 2008. It is the established principle of law that the right of appeal is not an inherent and natural right and it is a statutory right. It cannot be said that the Gram Nyayalaya could not have entertained and decided the civil suit and the counter-claim only because the Gram Nyayalayas Act, 2008 does not provide for the Second Appeal.

17. The subordinate Courts have concurrently held that the civil suit filed by the petitioner is barred by limitation. In paragraph No.4 of the plaint, the petitioner pleaded that she had requested the respondent on many occasions to obtain the written permission of the Collector to execute the sale-deed, however the respondent gave evasive replies. It is pleaded that the petitioner had sent legal notices dated 06-01-1996 and 10-11-1997 but still the respondent failed to comply with the requirements of the notices. It is pleaded that the respondent entered the suit field on 10-11-1997 and had given threats to the petitioner and therefore, complaint was made to the police on 10-11-1997 in the matter. Considering the pleadings of the petitioner, the findings recorded by the District Court on the point of limitation that the inaction on the part of the defendant in seeking permission of the Collector to execute the sale-deed inspite of the notice dated 10-11-1997 and to execute the sale-deed on 17-11-1997 amounted to refusal by the defendant, cannot be said to be illegal or suffering from any infirmity. The civil suit filed by the petitioner being time barred, it is rightly dismissed.

18. The petitioner was put in possession of the suit field pursuant to the agreement of sale. The subordinate Courts have recorded the finding concurrently that the default is on the part of the petitioner to perform her part of contract. Section 53A of the Transfer of Property Act protects the possession of the party who has been put in possession of the property in part performance of the contract and continues in possession of the property and has done some act in furtherance of the contract and the purchaser has performed or is willing to perform his part of the contract. In view of the findings recorded by the subordinate Courts that the petitioner has failed to perform her part of the contract, the petitioner is not entitled to protect her possession under Section 53A of the Transfer of Property Act. Therefore, the decree for possession granted by the subordinate Courts allowing the counter-claim of the respondent is proper and does not require any interference.

19. The judgments relied upon by the learned Advocate for the petitioner in the cases of AmbadasKhanderao Hagvane and others, JaskaranSingh, Surinder Pal Singh and Raghunath and Others, are on the facts of the respective cases and they do not assist the petitioner. In view of the findings recorded by me on the point of limitation and the maintainability of the civil suit before the Gram Nyayalaya, the submissions made on behalf of the petitioner relying on the above referred judgments, cannot be accepted. The judgment given by the Hon'ble Supreme Court in the case of Cantonment Board and Another deals with the established proposition of law that the validity of the judgment/order passed by the Court which lacks inherent jurisdiction to deal with the subject matter. In the present case, I have held that the Gram Nyayalaya had the jurisdiction to entertain and decide the civil suit and the cross-objection and I have considered the submissions made by the learned Advocate for the petitioner regarding the challenges raised in the writ petition, therefore, the reliance on the above referred judgments is inconsequential.

20. The petitioner had filed the appeal challenging the judgment and decree passed by the Gram Nyayalaya before the District Court and the prayer made by the petitioner in the memorandum of appeal is as follows :

“It is therefore most humbly prayed that this Hon'ble Court be pleased to call for the record from the learned Lower Court in R.C.S. No.125/06 (Smt. Shobha – Versus Ganpat) decided on 30-11-2009 by Nyayadhikari, Gram Nyayalaya, Wardha, Presided over by Shri R.N. Mehare and to allow the said appeal and quash and set aside the judgment and decree of the Trial Court by dismissing the Counter-claim of the respondent/defendant.”

The petitioner had not challenged the judgment and decree passed by the Gram Nyayalaya dismissing the civil suit filed by the petitioner. In my view, the petitioner having not challenged the judgment and decree passed by the Gram Nyayalaya dismissing the Regular Civil Suit No.125/2006, the petitioner cannot challenge the legality and validity of the judgment and decree passed by the Gram Nyayalaya dismissing her civil suit, in this writ petition.

21. In view of the above, the writ petition is dismissed with costs quantified at Rs.5,000/-, to be paid by the petitioner to the respondent within two months from today.

22. Rule is discharged accordingly.


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