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Mehta Radha Kishen Vs. Raj Rani - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 131D of 1963
Judge
Reported inILR1970Delhi152
ActsDelhi Rent Control Act, 1958 - Sections 15(3)
AppellantMehta Radha Kishen
RespondentRaj Rani
Advocates: R.C. Dutt and; G.R. Bhatia, Advs
Cases ReferredLekhi Ram v. Chander Bhan
Excerpt:
.....act 59 of 1958, the landlady filed another application for fixation of standard rent before the rent controller . on 9-10-1961, the parties appeared before the rent controller and stated that standard rent had been fixed by the civil court by order dated 21-8-1961 at rs. 25/- per month and as such no fresh standard rent can be fixed. thereafter, the parties compromised and further stated that the tenant will pay and the landlady will accept rs. 16/127- per month as rent from 1-2-1960 and that rs. 16/12/- is the correct standard rent and that the application before the rent controller be dismissed in view of the statements of the parties. the application was accordingly dismissed by the rent controller on 9-10-1961. subsequently, the respondent filed an application under section 14 of..........for fixation of standard rent against the appellant herein in the court of shri b. l. mago, rent controller, delhi. on 3rd february, 1961, under the provisions of the act of 1958. it was while the said application was pending that appeal which arose out of the application filed in 1957 was allowed and the case was remanded. thus, after 3rd february, 1961, two separate applications for fixation of standard rent between the same parties were pending, one before shri guliani, sub-judge, 1st class, delhi, under the 1952 act and the other before shri b. l. mago, rent controller, delhi, under the act of 1958. (3) on 9th october, 1961, the counsel for the parties before shri b. l. mago made statements in the court. the said statements and the proceedings on that date were recorded in.....
Judgment:

T.V.R. Tatacharji, J.

(1) This Second Appeal has been filed against the order of Shri Pritam Singh Pattar. Rent Control Tribunal, Delhi, dated 20th March, 1963 in Rent Control Appeal No. 68 of 1963 on his file.

(2) The appellant in this Second Appeal is Mehta, Radha Krishna, According, to him, he became a tenant of the Custodian, in 1948 in respect of a portion of the suit primises, and the rent payable by him to the Custodian was Rs. 6.50 nP. The respondent herein. Shrimati Raj Rani, wife of Shri Mehta Puran Chand, Advocate, purchased the entire building in 1957, and the appellant therein became her tenant. Immediately after the purchase, the respondent herein filed an application on 1st September, 1957, in the Court of Shri B. R. Guiliani, Sub-Judge, 1st Class, Delhi, under the Delhi and Ajmer Rent Control Act No. 38 of 1952, for fixation of standard rent against all the tenants in the building including the appellant herein. It appears that the application was dismissed against all the tenants in 1960, and the respondent preferred an appeal to the Court of the Additional District Judge, Delhi. The case was remanded to the Civil Judge in April, 1961, by the Additional District Judge. After the remand Shri Guliani, by an order, dated 21-8-1961, fixed the standard rent for the portion in the occupation of the appellant herein at Rs. 25.00 per month- Subsequent to the filing of the application before Shri Guliani, the Delhi Rent Control Act No. 59 of 1958, was passed, and it came into force on 9th February, 1959. It appears that in view of the passing of the new Act, the respondent herein filed another application for fixation of standard rent against the appellant herein in the Court of Shri B. L. Mago, Rent Controller, Delhi. on 3rd February, 1961, under the provisions of the Act of 1958. It was while the said application was pending that appeal which arose out of the application filed in 1957 was allowed and the case was remanded. Thus, after 3rd February, 1961, two separate applications for fixation of standard rent between the same parties were pending, one before Shri Guliani, Sub-Judge, 1st Class, Delhi, under the 1952 Act and the other before Shri B. L. Mago, Rent Controller, Delhi, under the Act of 1958.

(3) On 9th October, 1961, the counsel for the parties before Shri B. L. Mago made statements in the Court. The said statements and the proceedings on that date were recorded in Urdu and a translation of the same has been filed by the learned counsel for the appellant herein. According to the said translation, Shri Lakshmi Chand Nanda, counsel for the appellant herein who was the respondent before Shri B. L. Mago, made the following statement:-

'IT is evident from the order of the Court mentioned by the petitioner that the standard rent of the house in dispute has been fixed by order, dated 21-8-1961. It has come to our knowledge only today. As such, no fresh standard rent can be fixed. According to law, if that is the standard rent, it shall be the same.'

(4) Shri Puran Chand, the counsel for the respondent herein, who was the petitioner before Shri B. L. Mago made the following statement:-

'RS.25.00 has been fixed as the standard rent vide order dated 21-8-61.'

AFTERrecording the above statements, Shri B. L. Mago, made a note as follows :-

'ATthis stage, the parties have compromised. Let their statements be recorded.'

(5) Then, the statement of Shri Lakshmi Chand Nanda, counsel for the tenant i.e. the appellant herein who was the respondent before Shri B. L. Mago was recorded as follows :-

'THErespondent will pay Rs. 16/12.00 p.m. as rent from 1-2-1960. The petition be dismissed. The petitioner be given a voucher for the amount deposited. The parties be left to bear their own costs, Rs. 16/12.00 is the correct standard rent.'

(6) Landlady i.e. the respondent herein who was the petitioner before Shri B. L. Mago, was then recorded as follows :-

'I have heard the statement of the counsel for the respondent. It is accepted by me. The petition be dismissed. The parties be left to bear their own costs. Rs. 16/12.00 p.m. is the correct standard rent.'

(7) Shri B. L. Mago then passed an order as under:-

'ASper statements, the present petition be dismissed. The parties are to bear their own costs.

ANNOUNCED

9-10-61

SD..00B. L. MAGO. R.C.'

(8) Subsequently, the respondent herein filed an application under section 14 of the Delhi Rent Control Act for ejectment of the appellant herein on the grounds of bona fide requirement, non-payment of arrears of rent, sub-letting and acquisition of a house by the tenant-appellant. The tenant-appellant admitted the tenancy, but contended, inter alia, that he was paying Rs. 6.50 nP per month as rent to the Custodian from whom the respondent herein purchased the house. He also controverter the grounds on which ejectment was prayed for. In the said proceedings for ejectment, the respondent herein filed an application on 2nd August, 1962, under section 15(2) of the Delhi Rent Control Act, praying that the appellant-tenant may be ordered to deposit the arrears of rent from 1st December, 1958, up to date at the rate of Rs. 25.00 per month. The appellant herein contested the said application and pleaded that as per the statements made by the counsel for the parties before Shri B. L. Mago on 9th October, 1961, the parties had agreed that rent was to be paid from 1st February, 1960, at the rate of Rs. 16/12.00 per month, and that the said rent would be the standard rent. He further pleaded that rent prior to the said date i.e., 1st February 1960, was liable to be adjusted Rs. 6.50 nP per month which was the rent that was being paid by him to the Custodian. He also pleaded that he had paid or deposited certain amounts towards arrears of rent. After hearing the learned counsel for the parties, Shri Sudarshan Aggarwal, 2nd Additional Rent Controller, Delhi, passed an order on 29th November, 1960 in which he observed that he was unable to appreciate as to why the counsel for the landlady had agreed to the standard rent being fixed at Rs. 16/12.00 per month when according to her contention, the standard rent had already been fixed by the civil court at Rs. 25.00 per month. After making the said observation, Shri Aggarwal concluded his order as under:-

'INany case, the respondent's liability to pay rent from 1-2-1960 onwards is clearly established and as such without prejudice to the petitioner's claim for more rent, I make an order directing the respondent to deposit the arrears of rent from 1-2-1960 up to date at the rate of Rs. 16/12.00 per month within one month and future rent at the same rate, month by month, by the 15th of each following month. This is without prejudice to the petitioner's claim for rent of certain prior period which will be decided after taking evidence on the date already fixed.'

(9) Against the said order, the respondent herein preferred an appeal, Rent Control Appeal No. 68 of 1963 to the Court of Shri Pritam Singh Pattar, Rent Control Tribunal Delhi. By an order, dated 20th March 1963, Shri Pritam Singh allowed the -appeal and directed the appellant herein to deposit Rs. 330-25 nP as arrears of rent due up to 28th February, 1963, and future rent at the rate of Rs. 25.00 per month. In his order, the learned 'Tribunal, after referring to the facts of the case and the contention of the parties, observed as under :-

'WITHOUTbeing taken to have expressed any opinion on the merits of the case, I think the learned Additional Rent Controller should have ordered the deposit of rent at the rate of Rs. 25.00 per month.'

(10) He then pointed out that admittedly rent was due from 1st July, 1957, but thereafter some payments were made, that Shri Baldev Raj Guliani, had fixed the standard rent with effect from 1st January, 1957, and that the case of the tenant, however, was that he was paying rent to the Custodian at the rate of Rs. 6.50 paise per month and for two years he was to hold the property on the same terms and conditions. The Tribunal then went on to calculate the arrears due as follows:-The total rent from 1st January, 1957, up to 31st December, 1958, at the rate of Rs. 6.50 Paise per month was Rs. 156.00; the rent from 1st January, 1959, to 31st December, 1962, at the rate of Rs. 35.00 per month was Rs. 1,200.00; the rent from 1st January, 1963, to 28th February, 1963, was Rs. 50.00. Thus, the total rent due to the land lady at the rate mentioned above for the period 1st January, 1957, to 28th February. 1963, was Rs. 140.00. It was admitted that the tenant had paid Rs. 440.00 to the landlady and that he deposited two sums of Rs. 567.50 Paise and Rs. 50.25 Paise in Court on different occasions. The total amount thus paid or deposited was Rs. 1,057.75 Paise. Deducting the same from the arrears due the balance of rent due to the landlady on 28th February, 1963, came to Rs. 330.25 Paise. In the result, the Tribunal directed the tenant (appellant herein) to deposit Rs. 330.25 Paise being arrears of rent due up to 28th February, 1963, and future rent at the rate of Rs. 25.00 per month within one month from the date of the order in the Court of the Additional Rent Controller, and also future rent at the same rate month by month by the 15th of each following month. The Tribunal thus modified the order of the Additional Rent Controller to the extent mentioned above. It is against the said order that the present Second Appeal has been filed by the tenant, Mehta Radha Kishan.

(11) Shri R. C. Datta learned counsel for the appellant, contended that the respondent landlady had voluntarily agreed to receive Rs. 16/12.00 per month as rent, and had thus agreed to accept a rent lesser than the standard rent of Rs. 25.00 fixed by Shri Guliani that the said agreement was binding on the parties, and th5t the learned Rent Control Tribunal erred in fixing the interim Rent at Rs. 25.00 per month.

(12) As regards this contention. Shri G. R. Bhatia, the learned counsel for the respondent contended that since standard rent was fixed by Shri Guliani for the portion of the premises in the occupation of the appellant, the same would govern the parties that standard rent has to be fixed by the Court in accordance with the provisions in the Act, and any fixation of standard rent according to the compromise between the parties is invalid and not binding on the parties, and that the Tribunal was, thereforee, justified in directing the appellant to deposit interim rent at the rate of Rs. 25.00 per month which was the standard rent fixed by Shri Guliani in respect of the portion of the premises in question. He referred to the decisions in K. L. Bansal v. Kaushlia Devi, Lxiv (1962) P.L.R. 1091, Chuni Lal v. Sewa Singh, reported as a Short Note in Lxiix (1966) P.L.R. Bahadur Singh v. Muni Subrat^) Short Notes of Cases, page 27, Bhada 1969 R.C.R. 151 , Kaushaliya Devi v.K. L. Bansal, 1969 R.C.R. 703 (^ and N. M. Chawla v. J. S. Sethi, 1969 R.C.R. 861. () The first of the decisions mentioned above was by a Division Bench consisting of Bedi and P. C. Pandit, JJ. who in dealing with a case under section 13 of the Delhi & Ajmer Rent Control Act No. 38 of 1952, held that-

'BEFOREa valid decree for ejectment is passed against a tenant the satisfaction of the Court as to the existence of one or the other grounds mentioned in section 13 of the Delhi & Ajmer Rent Control Act, 1952. is essential', and that- 'ANejectment decree passed only on the statements of parties without the Rent Controller satisfying himself on merits, is contrary to the statutory provisions of the Act and is a nullity.'

(13) This case went up in appeal to the Supreme Court and the decision of the Supreme Court is the fourth of the cases mentioned above. The Supreme Court affirmed the decision of the Division Bench and held that the case was covered by an earlier decision of the Supreme Court in Bahadur Singh's case (supra). Bahadur Singh's case also was a case under section 13(1) of the Delhi and Ajmer Rent Control Act, 1952. In that case. the Supreme Court held that a decree or order could be passed only on one of the grounds mentioned in section 13 of the Act. and that section 13 prohibits the Court from passing a decree or order for recovery of possession of any premises infavor of a landlord against a tenant except in such a suit or proceeding and unless the Court was satisfied that a ground of eviction existed. In that case, the lower Court passed a decree according to an Award under section 17 of the Arbitration Act, 1940, in a proceeding to which the landlord was not a party without satisfying itself that a ground of eviction existed. The Supreme Court held that on the plain wording of section 13(1), the Court was forbidden to pass the decree, and that decree was a nullity and could not be enforced in execution. The decision in Chuni Lal's case was given by R. P. Khosia and P. D. Sharma, JJ. The learned Judges, dealing with an application for fixation of fair rent under section 4 of the East Punjab Urban Rent Restriction Act No. 3 of 1949. held that in an application at the instance of a tenant, the Controller has to hold an enquiry, the nature of which is not prescribed 'and is left to his option, and in fixing the basic rent and then the fair rent, a number of considerations enumerated in section 4 of the East Punjab Urban Rent Restriction Act have to be taken into account, and that the determination of the fair rent upon a compromise only would short circuit the entire procedure enjoined and defeat the purpose of the .enactment. In support of then-conclusion, the learned Judges relied upon the decision of the Division Bench in Lekhi Ram v. Chander Bhan, Lxiv (1962) P.L.R. 197. In Lekhi Ram's case, Falshaw, J. (as he then was) held that in an application for fixation of fair rent under section 4 of the East Punjab Urban Rent Restriction Act No. 3 of 1949. the fair rent cannot be fixed by an agreement between the parties. but must be fixed by the Rent Controller and the Appellate Authority on a consideration of the evidence on the record, and that it was the duty of the Rent Controller to weigh the material independently and not merely to accept the statements of the parties.

(14) In N. M. Chawla's case (supra), the Supreme Court had occasion to deal with the provisions in the Delhi Rent Control Act, 1958. Referring to the provisions relating to the fixation of standard rent, the Supreme Court observed at page 868 as follows:-

'WEare unable to agree that standard rent of a given tenement is by the virtue of section 6 of the Act a fixed quantity, and the liability for payment of a tenant is circumscribed thereby even if the standard rent is not fixed by order of the Controller. Under the scheme of the Act standard rent of a given tenement is that amount only which the Controller determines. Until the standard rent is fixed by the Controller, a contract between the landlord and the tenant determines the liability of the tenant to payment. That is clear from the terms of section 9 of the Act. That section clearly indicates that the Controller kalone has the power to fix the standard rent, and it cannot be determined out of Court. An attempt by the parties to determine by agreement the standard rent out of Court is not binding. But section 12 in an application for fixation of standard rent of premises, the Controller may give retrospective operation to his adjudication for a period not exceeding one year before the date of the application. The scheme of the Act is entirely inconsistent with standard rent being determined other-wise than by order of the Controller. In our view. the prohibition against recovery of rent in excess of the standard rent applies only from the date on which the standard rent is determined by order of the Controller and not before that date.'

(15) It is true that the above decisions have laid down that standard rent has to be fixed by the Controller in accordance with the provisions of the Act and not on the basis of a compromise arrived at by the parties. But, in my opinion, the learned counsel for respondent cannot derive any support from the said propositions. In the present case, Shri Guliani fixed the standard rent for the portion of the premises in occupation of the appellant-tenant at Rs. 25.00 p.m. Shortly thereafter, in the proceedings before Shri B. L. Mago, the parties, through their counsel, made statements before Shri B. L. Mago which have already been set out above. The counsel for the tenant first made a statement that the standard fent of the portion in occupation of the tenant was fixed (by Shri Guliani) by an order, dated 21st August. 1961, and that as such no fresh standard rent could be fixed. The counsel for the landlady also made a similar statement that Rs. 25.00 was fixed as standard rent by the order, dated 21st August 1961. At that stage, the parties entered into a compromise and in pursuance of the same made statements before Shri B. L. Mago. The counsel for the tenant stated that the tenant will pay Rs. 16/12.00 per month as rent from 1st January, 1960, and that the petition for fixation of standard rent filed by the landlady may be dismissed. He 'added that Rs. 16/12.00 was the correct standard rent. The counsel for the landlady accepted the said statement and stated that the petition should be dismissed. He too added that Rs. 16/12.00 per month was correct standard rent. Shri B. L. Mago thereupon passed an order dismissing the petition as per the statements of the counsel. Thus, Shri B. L. Mago, did not fix any standard rent by his order. He merely dismissed the application filed by the landlady for fixation of the standard rent. The parties while being Conscious that in view of the standard rent having already been fixed by Shri Guliani at Rs. 25.00 per month no fresh standard rent could be fixed again, agreed between themselves to reduce the amount to Rs. 16/12.00. They, no doubt. referred to the said amount of Rs. 16/12.00 as the standard rent, but it is clear from the decisions mentioned above that their calling the amount as standard rent would not legally make the said amount the standard rent. It was for Shri B. L. Mago to fix the standard rent in accordance with the provisions of the Act. However, he did not fix any standard rent but herely dismissed the application. Thus, the position is that the standard rent for the portion of the premises in question was fixed by Shri Guliani at Rs. 25.00 per month, and the parties subsequently agreed that the rent payable by the appellant-tenant was Rs. 16/12.00 per month. The question for determination is as to which of the amounts is to be taken into consideration by the Rent Controller for fixing the interim rent under section 15(3) of the Act.

(16) In the present case, the respondent-landlady filed an application under section 15(2) of the Act praying that the appellanttenant may be ordered to deposit arrears of rent from 1st December, 1958, up to the date of her application at the rate of Rs. 25.00 per month. The appellant-tenant contested the application pleading that by virtue of the agreement entered into between the parties on 9th October, 1961, in the course of the proceedings before Shri B. L. Mago, the rent to be deposited was Rs. 16/12.00 per month and not Rs. 25.00. It has to be noted that the main application filed by the landlord was for eviction of the appellant- tenant on four grounds, namely, non-payment of arrears of rent, bona fide personal requirement, subletting and acquisition of a house by the tenant. Section 15(1) of the Act provides that in a proceeding, for eviction on the ground specified in clause (a) of the proviso to sub-section (i) of section 14, i.e. non-payment of the arrears of rent legally recoverable from the tenant, the Controller should make an order directing the tenant to pay to the landlady or deposit with the Controller an amount calculated at the rate of rent at which it was last paid for a period specified in the sub-section, and also to continue to pay or deposit the amount month by month at the aforesaid rate. Section 115(2) provides that if in the proceeding for eviction on any ground other than that referred to in sub-section (1) of section 15. the tenant contests the claim for eviction, the landlady may make an application to the Controller for an order directing the tenant to pay to the landlady the amount of rent legally recoverable from the tenant. Then, sub-section (3) of section 15 provides as follows:-

'IF,in any proceeding referred to in sub-section (1) or sub-section (2), there is any dispute as to the amount of rent payable by the tenant, the Controller shall, within 15 days of the date of the first hearing of the proceeding, fix an interim rent in relation to the premises to be paid or deposited in accordance with the provisions of sub-section (1) or sub-section (2) as the case may be, until the standard rent in relation thereto is fixed having regard to the provisions of this Act, and the amount of arrears, if any, calculated on the basis of the standard rent shall be paid or deposited by the tenant within one month of the date on which the standard rent is fixed, or such further time as the Controller may allow in this behalf.'

(17) Referring to the words 'dispute as to the amount of rent payable by the tenant', in sub-section (3) of section 15, the Supreme Court held in N. M. Chawla's case (supra) at page 869, that they meant the dispute about the contratual rent payable and not the standard rent payable. The Supreme Court observed in this connection as follows:-

'COUNSELfor Chawla contended that the expression 'dispute as to the amount of rent payable by the tenant' in sub-section (3) of section 15 means a dispute raised by the tenant as to the 'standard rent payable'. We are unable to agree. The dispute referred to in section 15(3) is a dispute about contractual rent payable.'

(18) SUB-SECTION (2) of section 15 also refers to 'the amount of rent legally recoverable from the tenant'. The question, thereforee, is what was the amount of rent legally recoverable from the tenant in the present case. Shri Bhatia contended that the amount recoverable from the appellant-tenant was the standard rent fixed by Shri Guliani and not the rate of rent agreed to between the parties subsequently between themselves. He referred to the provisions in section 4, 5 and 48 of the Act and argued that the Act prohibits the landlord to claim or receive any rent other than the standard rent. This contention is not tenable. Section 4(1) of the Act provides that the tenant is not liable to pay to his landlord any amount in excess of the standard rent of the premises. Section 4(2) provides that any agreement for the payment of rent in excess of the standard rent shall be construed as if it were an agreement for the payment of the standard rent only. Section 5(1) provides that subject to the provisions of the Act no person shall claim or receive any rent in excess of the standard rent, notwithstanding any agreement to the contrary. The other provisions of section 5 are not relevant for the purposes of the present case. Section 48 imposes certain penalties for a contravention of any of the provisions in section 5. Thus, the Act merely prohibits the landlord to claim or receive any rent in excess of the standard rent. It does not prohibit or prevent the landlord from voluntarily accepting a rent lesser than the standard rent. In fact, the provisions of the Act were mainly intended for the protection of the interests of the tenant. If in a particular case, the landlord is willing to show a concession to a tenant and agrees to receive a rent lesser than the standard rent, the agreement to that effect between the landlord and the tenant would not contravene any of the provisions in the Act, and would be quite valid and binding on the parties. In the present case, after the standard rent was fixed by Shri Guliani, the respondent-landlady entered into an agreement with the tenant to receive a lesser rent of Rs. 161121- per month. It is not the case of the respondent that the said agreement was vitiated by any fraud or undue influence. In the circumstances, the agreement has to be held to be binding on the parties. thereforee, the Rent-Controller was justified in fixing the interim rent of Rs. 161121- per month, and the fixation of Rs. 25.00 per month as interim rent by the learned Rent Control Tribunal was not in accordance with the provisions of the Act.

(19) As already stated, the Rent Control Tribunal fixed the arrears of rent at Rs. 156.00 for the period 1st January 1957 up to 31st December, 1958, at the rate of Rs. 6.50 Paise per month, Rs. 1200 for the period from 1st January, 1959, to 31st December, 1962, at Rs. 25.00 per month, and Rs. 50.00 for the period from 1st January, 1963, to 28th February, 1963. The amount for the period 1st January, 1957, to 31st December, 1958, has not been disputed by the landlady by filling an appeal against the order of the Rent Control Tribunal. As regards the other two amounts, they have to be re-calculated at the rate of Rs. 16/12.00 per month. The said amounts will be Rs. 804.00 and Rs. 33.50 Paise. Thus, the total rent due to the landlady at the aforesaid rates from 1st January, 1957, to 28th February, 1963, comes Lo Rs. 156.00 plus Rs. 804.00 plus Rs. 33.50 Paise i.e. Rs. 993.50 Paise. The amounts admittedly paid or deposited by the tenant were Rs. 440, Rs. 567.50 Paise and Rs. 50.25 Paise, making a total of Rs. 1057.75 Paise. He thus deposited or paid Rs. 64.25 Paise more and, thereforee, there is no necessity for him to deposit any amount towards arrears up to 28th February, 1963 and the excess amount of Rs. 64.25 Paise is to be adjusted towards subsequent months. The rent due to the landlady from 1st March, 1963, to 31st December, 1969, at Rs. 16/12.00 per month comes to Rs. 1,373.50 Paise, and deducting the aforesaid sum of Rs. 64.25 Paise, the balance due comes to Rs. 1,309.25 Paise.

(20) For the foregoing reasons, the Second Appeal is allowed, and the order of the Rent Control Tribunal, Delhi, is modified as follows. The appellant-tenant need not deposit any moment towards arrears of rent up to 28th February, 1963, but he should deposit Rs. 1,309.25 Paise as arrears of rent for the period from 1st March, 1963, to 31st December, 1969, at the rate of Rs. 16/12.00 per month, within two months from this date in the Court of the Additional Rent Controller, Delhi, and continue to deposit future rent at the same rate month by month by the 15th of each following month. The parties are directed to appear before the Additional Rent Controller on 15th January, 1970. The parties shall bear their own costs in this Second Appeal.


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