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Petitioner: KHURSHEED ALI VS Respondent: 3rd ADDITIONAL DISTRICT AND SESSIONS JUDGE, KARACHI JUDGMENT
Court Name: Sindh High Court Judge(s): Irfan Saadat Khan, Aziz-ur-Rehman Title:KHURSHEED ALI vs 3rd ADDITIONAL DISTRICT AND SESSIONS JUDGE, KARACHI
JUDGMENT
Reported As: 2018 YLR 1749 Result: Petition dismissed Judgment JUDGMENT AZIZ-UR-REHMAN, J.---By means of this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, filed on 23.09.2017, the Petitioner viz. Khursheed Ali son of Habib-ur-Rehman (late), as being one of the legal heirs of the deceased, Habib-ur-Rehman upon becoming dissatisfied with the consolidated judgment and decree dated 28.05.2016, order dated 15.09.2017, passed by Senior Civil Judge, Karachi South and order dated 22.09.2017, passed by IIIrd Additional District Judge, Karachi, South, have questioned/impugned the same with the following prayers::--- A. To call R&Ps of Civil Suit No,414/201, Civil Suit No,50/2012 and the Civil Revision No,48/2017 and set aside impugned order dated 28.05.2016, set aside order dated 15.07.2017 and order dated 22.09.2017. B. To direct the Respondent No,2 not issue the police aid against the Petitioner till the final decision of this petition. C. To restrain the Respondents Nos, 3 to 5, his agents, subordinates, servants, employees, attorney(s) or any other person on his behalf to not harass, threatened and give mental torture to the Plaintiff, illegally, unlawfully and without due course of law. Further restrain the Defendant to not dispossess illegally to the Plaintiff from the suit property Viz. Plot No,A-41, measuring 240 Square Yards constructed Ground + 2 Storeys in any manner, whatsoever in nature, without due course of law. D. To grant permanent injunction against the Respondents Nos, 3 to 5, thereby restraining them, their agents, servants, colleagues, representatives and/or anybody else acting through them and
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on their behalf to create third party interest in respect of the suit property i,e, Plot No,A-41, measuring 240 Square Yards constructed Ground + 2 Storeys in any manner, whatsoever their nature. [Emphasis supplied] E. Any other relief this Honourable Court deems fit and proper under the facts and circumstances of the case. Also grant the favour to the Petitioner to secure from the hands of the respondents. 2. The facts, in brief of this case are as follows:- 3. The Petitioner is one of the legal heirs of deceased Habib-ur-Rehman son of Mussali Khan who passed away sometime in the year, 2009. The deceased/father of the petitioner, as averred, was the real brother of Respondents Nos, 3 to 5 and, as claimed, was also co-sharer in the immovable property bearing Plot No,A 41, measuring 240 Square Yards Plus construction i,e, Ground + 2 Storeys Building raised thereon in the years. 19961997 [here-in-after referred to as subject property]. 4. Per assertions made in 'Para 4' of the Memo of Petition [In short Mon the aforesaid immovable property ['subject property], was purchased by the grandmother of the petitioner ,rom the savings and income of all her 04 sons only. The 'subject property', however, was purchased and registered in the name of Respondent No,3 viz. IMTIAZ ALI SON OF MUSSALI KHAN. 5. On account of a civil dispute arisen between the four [4] real brothers in respect of the 'ownership' of 'subject property', the Respondent No, 3, herein, finally filed a Civil Suit No, 414 of 2011 against their real brothers Imtiaz Ali Khan son of Mussali Khan v. Nawaz Khan and Mumtaz Khan, 'inter alia' seeking therein, sole ownership of Plot No,A-41, measuring 240 Square Yards Plus 2 Storeys building constructed thereon. Per averments, the Plaintiff/ Respondent No,3 herein, is the absolute/exclusive owner of the 'subject property'. The prayers sought in the aforesaid suit read as follows: - a). To declare the Plaintiff is the lawful allottee of the plot and owner of the building constructed upon it. b). To direct the defendant No-1 and defendant No-2 to vacate the premises and hand over the vacant physical possession of the ground floor and First Floor of the suit property. [Emphasis supplied] c). To give permanent injunctions to the defendants, not to interfere in the possession of the plaintiff thereafter. d). Cost of the suit. Any other relief or reliefs which this Hon'ble Court deem fit and proper. 6. Upon service, the Defendants/ Respondents Nos,4 and 5 herein, filed their `written statement'[s] wherein, the claim of 'ownership' of the Plaintiff/Respondent No,3 herein, in respect of the 'subject property' was vehemently and specifically denied. In the 'written statement'[s] filed by the Defendants it was also claimed that the 'subject property' is a 'joint property' of all the four [4] brothers namely: [i]. Imtiaz Khan, [ii]. Nawaz Khan, [iii]. Mumtaz Khan, and [iv]. Habibur Rehman [since deceased], all sons of Mussali Khan. 7. Apart from their 'writtenstatement[s]', the two [2] Defendants in Civil Suit No,414/2011, also opted to file a Civil Suit No,50 of 2012 [Nawaz Khan and Mumtaz Khan v. Imtiaz Khan, Habib-urRehman [since deceased], through his legal L.Rs, i,e, [i] Mst. Fari Zadgai - widow, [ii] Arshad - Son, [iii]. Sonia - Daughter, and [iv]. Romesa-Daughter [minor], through her mother viz. Mst. Fari Zadgai. In Suit No,50/2012, 'inter alia' a declaration was sought, it appears, to the effect and extent that the 'subject property' bearing Plot No,A-41, measuring 240 sq. yds. Plus building constructed thereon, is a Joint property' of the parties and they are thus co-owners of the 'subject property'. 8. Keeping in view the divergent pleas/stand taken by the parties in the above two [2]. Civil Suits, 'consolidated' and 'additional consolidated issues' were framed/settled by the Court on 22.02.2014 and on 01.04.2014 respectively. Besides, the Civil Suit No,414/2011 [old in time], was treated as a leading suit. The 'consolidated' and 'additional consolidated issues'
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'CONSOLIDATED ISSUES' Whether the plaintiff is lawful allottee of the plot and owner of the building, if yes to what extent? Whether the plaintiff is in possession of the suit property? 3. Whether plaintiff is entitled to the relief claimed? 4. What should the decree be? 'ADDITIONAL CONSOLIDATED ISSUES' 1. Whether the plaintiff in leading suit is the sole owner of the suit property or it is a joint property of the parties to the suit and the defendants are co-owners? 2. Whether Agreement dated 26.3.2009 was executed and signed by the parties to the suit and they are bound by its terms and conditions? 3. Whether the building was constructed by the defendant No,1 and on the construction of the building the defendant No,1 spent Rs,16,50,000/- from his own pocket and he is entitled for the said amount with the profit. 9. Thereafter, in 'pro' and 'contra' of the aforesaid 'consolidated' and 'additional consolidated issues', the plaintiff viz. Imtiaz Khan, examined himself as 'Exh.P-1' and also produced various documents including property tax paid receipt/challan for the year, 2009-2010 as 'Exh-P/39' and transfer/mutation 'order as 'Exh-P/41' in his 'examination-in-chief as 'Exh.P-2' to 'Exh.P-43'. Besides, the plaintiff also produced and get examined three [3] more witnesses, namely, [i] Faqeer Hussain son of Mazhar as 'PW-1', [ii] Habib-ur-Rehman son of Jaffer Khan as 'PW-2' and [iii] Shams-uz- Zaman as 'PW-3'. Per record, all the four [4] witnesses were also 'cross-examined' and thereafter, the plaintiffs side of evidence was closed. Upon closing the plaintiffs side of eviderice, Defendant No,1 viz. Nawaz Khan son of Mussali Khan filed his 'affidavit-in-evidence' as ' Exh. D-1 ' Besides, Defendant No,2 viz. Mumtaz Khan son of Mussali Khan and other two [2] witnesses, namely, Qaim Khan son of Sher Khan and Munawar Khan son of Khairullah had filed their 'affidavits-inevidence' and thereon, they were also 'cross-examined'. Upon conclusion of Defendant's evidence, the Defendants' side of evidence was also closed. 10.Later on, when the above two [2] 'consolidated suits' came-up before the 1st Senior Civil Judge, Karachi South, then parties' counsels were heard. The learned 1st Senior Civil Judge, Karachi South, upon hearing of arguments and appreciating of the evidence/ materials available on record, given his 'issue-wise' findings on 28.05.2014 as under: - FINDINGS ISSUE NO. 1 AFFIRMATIVE ISSUE NO. 2 AFFIRMATIVE ISSUE NO. 3 AFFIRMATIVE ISSUE NO. 4 SUIT BEARING NO. 114 OF 2011 STANDS DECREED AS UNDER CONSOLIDATED ADDITIONAL ISSUES ISSUE NO. 1 IN FAVOUR OF PLAINTIFF (IN LEADING SUIT) ISSUE NO. 2 NEGATIVE ISSUE NO. 3 NEGATIVE 11. From the detailed and well-reasoned 'Consolidated Judgment' dated 28.5.2016, the following portion for ready reference and convenience purpose is reproduced herein-below: -
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"Thus, the entire claim of the defendant No,1 stood on some vague bills/vouchers/letter heads [Ex- D1 to D-58], whose credibility/ authenticity as evidence can be well ascertained from the fact that the defendant No,1, Muhammad Nawaz himself admitted during cross-examination it is correct that in some of the bills, the name of the shopkeeper and shop is not disclosed', 'it is correct that some of the letterheads produced as exhibits are given to the shopkeepers by the manufacturers for use', 'it is correct that Exhibits 'D-1' to 'D-16' show my entire accounts of construction', it is correct that the accounts book [Ex-D1 to D16] is not signed', 'it is correct that anybody can produce such a copy', it is correct that there is overwriting on some of the cash memos', 'it is correct that writing on the letter head produced by me from Annexure-'D/17' to 'D/58' is mine', and 'it is correct that I worked with Aziz Khan as Manager / Accountant and maintained his record', and 'it is correct that I was responsible for purchase of construction material'. And even otherwise, no prayer for return of Rs,16,50,000/- (Rupees sixteen lakh fifty thousand) purportedly spent by the defendant No,1 on the construction of the suit property/building from his own pocket was made in the prayer clause of plaint in suit bearing No,50 of 2012 filed by the defendants and no relief can be granted in respect of a claim, which is not sought in the prayer clause. Accordingly, this issue is replied in negative." [Emphasis provided] 12. While, answering Issues Nos,1, 2, 3 and 4 in 'AFFIRMATIVE', the leading Suit No,414/2011, filed by Imtiaz Khan [Respondent No,3 herein], was decreed through the impugned 'consolidated judgment' and 'decree' dated 28.05.2016. As far as, Civil Suit No,50/2012, filed by Nawaz Khan and Mumtaz Khan [Respondents Nos,4 and 5 herein] is concerned, in view of 'NEGATIVE FINDINGS' on Issues Nos,2 and 3 under the heading of the 'consolidated additional issues' the same was dismissed, however, with no order as to costs. The operative part of the 'consolidated judgment' dated 28.05.2016 reads as follows:-- "In view of the above reasons and findings, the leading suit bearing No,414 of 2011 filed by the plaintiff, Imtiaz Khan son of Musali Khan stands decreed in favour of the plaintiff against the defendants as per prayer clauses (A), (B) and (C) of the plaint. However, the other suit bearing No,50 of 2012 filed by the defendants, Nawaz Khan son of Musali Khan and Mumtaz Khan son of Musali Khan stands dismissed. [Emphasis supplied] There shall be no order as to costs. Let such decree be prepared within seven days hereof" 13. The Petitioner in view of passing of a Decree in Suit No,414 of 2011 [Imtiaz Ali Khan son of Mussali Khan v. Nawaz Khan and Mumtaz Khan] and of the dismissal of Suit No,50 of 2012 [Nawaz Khan and Mumtaz Khan v. Imtiaz Khan and Habib-ur-Rehman [since, deceased], having been sued through his legal heirs instead of filing appeal against passing of the 'consolidated judgment' and 'decree' dated 28.05.2014, opted to file three [3] applications on 14.07.2017 after more than two [2] years. The prayers sought in the said three [3] applications read as follows: Application under Order I, Rule 10 read with section 151, C.P.C. with a prayer for joining the petitioner as a party in the aforesaid 'consolidated suits'. [ii] Application under Order XXI, Rule 26, C.P.C. filed in Ex. No,08/2016 arising out of consolidated judgment and decree passed on 28.05.2016 for staying the execution proceedings before Ist Senior Civil Judge, Karachi South. [the suit was decreed on 28.05.2016] [iii] Application under section 12(2) C.P.C. read with section 151, C.P.C. for setting aside / recalling the 'consolidated judgment' and 'decree' passed in Civil Suit No,414 of 2011 [Imtiaz Ali Khan son of Mussali Khan v. Nawaz Khan and Mumtaz Khan] and Civil Suit No,50 of 2012 [Nawaz Khan and Mumtaz Khan v. Imtiaz Khan, Habib-ur-Rehman (since deceased)], through his L.Rs, which 'consolidated judgment' and 'decree' according to Petitioner's version was obtained by their uncles namely [i]. Imtiaz Khan, [ii]. Nawaz Khan and [iii]. Mumtaz Khan through playing 'fraud', 'misrepresentation', 'suppression' and 'concealment ,of real facts' in respect of title, possession of
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the petitioner's share, who as claimed, is one of the legal heirs of petitioner's deceased father viz. Habib-ur-Rehman. 14. At this juncture, it is significant to note, that all the legal heirs of the deceased Habib-ur- Rehman, per record, are/were Defendants in one of the two [2] 'consolidated suits' i,e, Suit No,50/2012, as Defendants No,2[ajlb][c] and [dl. The petitioner herein, however, alleges that in Suit No,50/2012 filed by their two [2] uncles against his third uncle viz. Imtiaz Khan son of Mussali Khan and all the legal heirs of deceased's father of the Petitioner viz. Habib-ur-Rehman, the petitioner's name, was wrongly mentioned, as Arshad instead of Khurshid Ali. The consolidated 'Judgment' and 'Decree' on this score alone, is liable to be set aside along with other impugned orders. The Petitioner and/or the other legal heirs of Habib-ur-Rehman [late] who were parties to Civil Suit No,50 of 2012, however, did not file any appeal against the consolidated 'Judgment' and 'Decree' passed on 28.05.2016, the same, as such, attained FINALITY. 15.For appreciating the stand of the Petitioner, we would like to reproduce herein 'Para 6' of the 'affidavit' in support of the application under Section 12(2), C.P.C. read with section 151, C.P.C., as under-:- "6. That I say that in Civil Suit No,50 / 2012 my name is wrongly mentioned as Arshad, and I have been mentioned as a legal heir of the deceased Habib ur Rehman/ defendant No, 2 by the plaintiffs of the above said suit and the defendant No,1 namely Imtiaz Khan son of Musalli Khan filed fake, forged and false Vakalatnama, Power of Attorney, Written Statement as well as Statement on Oath of legal heirs' and widow of the deceased defendant No, 2 on my behalf which is neither in my knowledge nor I have ever signed the Vakalatnama, Written Statement, Statement on Oath and/or the so-called Power of Attorney." [Emphasis supplied] 16.Apart from the above, non-issuance of any notices/summons have also been alleged. For and in view of these assertions, the petitioner is alleging 'fraud' and 'misrepresentation' on the part of plaintiff and Defendants' uncles [Respondents Nos,3 and 4 herein] in the aforesaid two civil suits. On 15.07.2017, when the petitioner's application under Order I, Rule 10, C.P.C., filed in the long ago decreed Suit No,414 of 2011 when, came-up before the learned Senior Civil Judge-I, Karachi then, the following order was passed:-- "Heard the learned counsel for the proposed intervenor and perused the case record. Although the applicant, Khurshid Ali son has sought to be joined as an intervener, claiming himself to be the co- sharer and in possession of a portion of the subject-property, he has not annexed any documentary proof of either his possession or ownership of the suit-property along with this application. and his claim is based on mere vague verbal assertions, which do not merit any consideration. As far as the record of the case is concerned, the consolidated civil suit bearing No,414 of 2011 was decreed in favour of the plaintiff/DH on 28.05.2016 on merits after being thoroughly contested by the defendants and a decree, acknowledging /. endorsing ownership of the D/H with consequential relief of possession as well permanent injunction was passed against the defendants/JD,. whose consolidated Civil Suit bearing No, 50 of 2012 was simultaneously dismissed through consolidated judgment, which has now attained finality after expiry of appeal period. Subsequently, civil execution bearing No,08 of 2016 was also filed by the DH and allowed after hearing and application for issuance of writ of possession was also filed, which is fixed today for orders. At this stage, filing of any such application by a person without any documentary proof of his locus standi appears to be simply an attempt to delay the proceedings in execution and depriving the plaintiff/DH of the fruits of the judgment/decree. Consequently, the application in hand stands dismissed." [Underlining is ours] 17. Apart from the above, two [2] more applications under Order XXI, Rule 26, C.P.C. for stay of the Execution Application and the application under section 12(2), C.P.C. read with section 151, C.P.C., alleging therein'fraud', 'misrepresentation', 'suppression' and 'concealment of real facts' were also
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found meritless/without any substance, as such, the same were dismissed vide order dated 14.07.2017 and 15.07.2017 respectively. The Petitioner, thus again feeling himself 'aggrieved' and dis- satisfied' opted to file a Civil Revision Application bearing No,48 of 2017 [Khurshid Ali son of Habibur-Rehman [late] v. Imtiaz Ali, Nawaz Khan and Mumtaz Khan [who were/are the real brothers of the Petitioner's deceased father and uncles of the Petitioner], wherein, the Petitioner challenged/impugned not only the 'consolidated judgment' and 'decree' dated 28.05.2016, but also impugned the other three [3] orders, whereby, the Petitioner's applications under Order XXI Rule 26, C.P.C., under Order I Rule 10, C.P.C. and the application under section 12(2), C.P.C. read with Section 151, C.P.C. were dismissed. 18.Along with the said Revision Application, it appears, an application under Order XXXIX, rules 1 and 2 C.P.C. read with section 151, C.P.C., was also filed. On 05.08.2017, when, the said 'REVISION APPLICATION' No,48 of 2017 [Khurshid Ali son of Habib-urRehman v. [i]. Imtiaz Khan, [ii]. Nawaz Khan and [iii]. Mumtaz Khan along with the 'INJUNCTION APPLICATION' came-up before the Court, then the following order was passed:-- "By this order I intend to grant interim injunction against the Respondents thereby restraining them, their agents, servants, friends, companions, colleagues, persons, representative, workers, attorneys and / or anybody else acting on their behalf or in their name from illegally not to threat, harassm ent and police aid, in any manner without due course of law and or creating third party interest in the same in any manner whatsoever in nature till next date of this Court. Therefore, if this temporary suspension is not granted in the favour of the Appellant it would cause him irreparable loss. Put off to 16.08.17." 19.Subsequently, on 22.09.2017, when again the Civil Revision Application filed under section 115, of C.P.C. came-up before the learned IIIrd Additional District Judge, Karachi South, then upon hearing the arguments of parties' counsel in 'pro' and 'contra' on the Civil Revision Application No,48 of 2017 [Khurshid Ali son of Habib-ur-Rehman (late) v. Imtiaz Ali, Nawaz Khan and Mumtaz Khan], was pleased to dismiss the same and resultantly, the stay order/interim injunction granted on 05.08.2017, was vacated. Being relevant for convenience purpose the 'operative part' of order dated 22.09.2017, passed in C.R No,48 of 2017 is reproduced herein-below: - "Order could be revised under this section in cases involving illegal assumption,non-exercise or irregular exercise of jurisdiction. It cannot be invoked against the conclusion of law and fact, which do not in any way affect the jurisdiction of the Court, matter, however, erroneous, wrong or perverse, the decision might be either on a question of fact or law, unless the decision involves a matter of jurisdiction. An erroneous conclusion of law or fact is liable to be corrected in appeal but revision will not be competent on such a ground, unless in arriving at such conclusion an error of law has been committed. Neither any aspect has been put forward or highlighted or is seeming available so as to attract or entail provision of section 115, C.P.C., therefore, the same could not come into play in the present case." [Underlining is ours] In the light of above mentioned, discussion, I am of the concrete view that the three impugned orders passed by the Trial Court were decided on merits and the revision application is hereby dismissed. Consequently, an application for the appointment of Nazir and application Under Sections 3 and 4 of Contempt of Court Act or also being disposed of without any order as this Court has no jurisdiction to decide the same, while deciding a revision application. The stay granted earlier by this Court is hereby vacated." [Emphasis supplied]. 20.The Petitioner herein once again feeling 'dis-satisfied' and 'aggrieved', has approached this Court through the instant Constitutional Petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, inter alia, for setting aside the impugned 'consolidated judgment' and 'decree' dated 28.05.2016, Orders dated 15.07.2017 and 22.07.2017, passed by the Courts below. On
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03.10.2017, while, granting the urgent application parties were directed to 'maintain status-quo' till 31.10.2017 for which date notices had already been ordered to be issued to the Respondents as well as Addl. A.G. Sindh, as per Order dated 27.09.2017. 21.On 14.11.2017, when the above writ petition came-up before us then, we heard Mr. Muhammad Nasim Shad, learned counsel for the Petitioner, Syed Miran Muhammad Shah, learned Addl. A.G. Sindh for Respondents Nos,1 and 2, Mr. Muhammad Arif Khan, learned counsel for Respondent No,3 and Respondents Nos,4 and 5 in person and also gone through the available record with their assistance. 22.Learned Counsel for the Petitioner forcefully contended that not only the impugned consolidated judgment and decree passed on 28.05.2016, by the learned Trial Court whereby, leading Civil Suit No,414 of 2011 was decreed and Suit No, 50 of 2012 was dismissed are liable to be set-aside on the ground of 'fraud', 'misrepresentation', 'suppression' and 'concealment of facts' but also Orders both dated 15.07.2017 whereby, the two [2] applications under Order I, Rule 10, C.P.C. and under section 12(2), C.P.C. read with Section 151, C.P.C. respectively were dismissed by the learned trial Court i,e, learned Senior Civil Judge-I, Karachi, South and Order dated 22.09.2017 passed by the learned IIIrd Addl. District Judge, Karachi South whereby, the Civil Revision Application No,48 of 2017, filed by the Petitioner herein, were dismissed. 23.Per learned counsel , though all the legal heirs of deceased Habib-ur-Rehman were joined in Civil Suit No,50 of 2012 as Defendants No,2(a)(b)(c)(d) but name of Petitioner as claimed was wrongly mentioned, as Arshad instead of Khursheed Ali in the said Civil Suit No,50 of 2012. Per Petitioner's version the mentioning of incorrect/wrong name amounts to 'fraud' and 'misrepresentation', on the part of Plaintiffs [Respondents Nos,4 and 5 herein]. Needless to say, Suit No,50 of 2012 was filed by Nawaz Khan and Mumtaz Khan against Imtiaz Khan and Habib- urRehman [since, deceased] through his legal L.Rs,]. The said Suit No,50 of 2012 though has been dismissed through the consolidated 'Judgment' and 'Decree' dated 28.05.2016, perhaps at the whims of Respondents Nos,4 and 5 herein. Apart from the above, the Plaintiff viz. Imtiaz Khan [Respondent No,3 herein], according to Petitioner has/had also committed 'fraud' 'misrepresentation'. 'suppression' and 'concealment of real facts' as the said Plaintiff in Suit No,414 of 2011 has failed to join the LRs of the deceased Habib-ur-Rehman. The passing of consolidated 'Judgment' and 'Decree' dated 28.05.2016, against Nawaz Khan and Mumtaz Khan in terms of Prayer Clauses ['A] [B] and [.C.] in Suit No,414 of 2012 [Imtiaz Khan v. Nawaz Khan and Mumtaz Khan] is thus liable to be set-aside. 24.Conversely, Mr. Muhammad Arif Khan, learned counsel for Respondent No,3 viz. Imtiaz Ali vehemently argued that the instant 'Writ Petition' as 'framed' and `filed' in the year, 2017, against the consolidated 'Judgment' and 'Decree' dated 28.05.2016 and other 'impugned orders' of 15.07.2017 and 22.09.2017, besides, being 'mis-conceived., 'mis-leading and devoid of any merits. Per learned counsel, the…
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