Madhya Pradesh High Court
Jameelabi & Ors. vs Abdul Hakim @Faiz Mohammad & Anr. on 7 July, 2026
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FIRST APPEAL NO. 204 OF 1998.
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
FIRST APPEAL NO 204 OF 1998.
JAMEELABI & OTHERS.
Versus
ABDUL HAKIM @ FAIZ MOHAMMAD & ANOTHER.
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Appearance:
Shri Jaideep Sirpurkar-Advocate for the appellants.
Shri Akhilesh Kumar Mishra- Advocate for the respondents.
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(JUDGMENT)
(Reserved on : 15/06/2026)
(Pronounced on: 07/07/2026)The present appeal by the defendants under Section 96 of Code of Civil
Procedure has been filed challenging the judgment and decree dated 27.03.1998
passed by the Trial Court in Civil Suit No.12A/1995 whereby the suit for specific
performance of the respondent-Plaintiff has been decreed.
2. Learned counsel for the appellant has argued that the Trial Court has
gravely erred in decreeing the suit for specific performance because the suit was
filed seeking specific performance of two agreements dated 24.09.1990 and
07.12.1990 executed by the defendants No.1 and 2 respectively. It is contended
that the Property had already been sold to defendants No. 3 and 4/Appellants No.3
and 4 on 06.03.1991 shortly prior to filing of the suit on 14.03.1991.
3. It is argued that the suit was barred by limitation because the plaint
which was initially filed on 14.03.1991 did not have any prayer for specific
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Signed by: ARVIND KUMAR
MISHRA
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FIRST APPEAL NO. 204 OF 1998.
performance of the two agreements. However, an application for amendment in the
plaint was filed on 05.01.1994 which was subsequently allowed by the Trial Court
and upon considering the said application, the relief of specific performance of
agreements was permitted to be incorporated in the plaint. When the said
amendments were filed, before Trial Court then the matter went beyond the
pecuniary jurisdiction of the Trial Court. Hence, the Trial Court returned the plaint
for being presented in appropriate Court on 25.03.1995 which was then presented
before the District court on 06.04.1995. It is therefore argued that even if the date
of filing of the suit is taken to be 14.03.1991 then also, since the plaintiff had
voluntarily omitted the relief to insert the relief of specific performance in the
original plaint, but had only chosen to insert the relief of specific performance later
on, the suit becomes barred by law of limitation because the limitation would be
counted from the date of amendment being permitted, or at the most on the date of
filing of application for amendment in the plaint, but the amendment would not
relate back to the date of filing of the suit. Therefore, it is argued that the suit
became barred by law of limitation and the Trial Court has erroneously held that
this suit was not barred by law of limitation.
4. Learned counsel for appellant has further argued that the readiness
and willingness of the plaintiff has not been properly established because on the
date of filing of the suit the plaintiff was not even in possession of the suit property
but since he has not even prayed the relief of specific performance of the
questioned agreements at the time of filing of the suit, therefore, his lack of
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MISHRA
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FIRST APPEAL NO. 204 OF 1998.
readiness and willingness can be inferred from his act of not seeking the relief of
specific performance initially, but choosing to file application for amendment in
the plaint by seeking to insert the relief of specific performance only on
05.01.1994. Therefore, the plaintiff might have readiness and willingness prior to
filing of the suit by issuing notices but his act of not seeking relief of specific
performance of agreement itself establishes that there was infact no readiness and
willingness on part of the plaintiff to perform his part of the agreement and
therefore there was fatal lack of readiness and willingness on part of the plaintiff
which disentitles the plaintiff to seek a decree of a specific performance.
5. Per contra, learned counsel for the plaintiff has vehemently argued
that the Trial Court has rightly granted a decree for specific performance because
the readiness and willingness has duly been found proved by the Trial Court. The
plaintiff had issued notices to the proposed vendors and the proposed vendors
replied to the notice and in their reply they refused to perform their part of
agreement. Therefore, there was readiness and willingness on part of the plaintiff
to perform his part of the agreement.
6. It is further argued that the application for amendment was filed in the
plaint on 05.01.1994 and the amendment would relate back to the date of filing of
the suit because the amendment was allowed by the Trial Court and the order
allowing amendment has not been put to challenge by the defendants at the
relevant point of time by filing any Civil Revision or petition under Article 227 of
the Constitution of India and therefore the order allowing amendment has become
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Signed by: ARVIND KUMAR
MISHRA
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FIRST APPEAL NO. 204 OF 1998.
final between the parties. On these assertions, it is prayed to confirm the decree of
specific performance and dismiss the appeal filed by the appellants.
7. Heard Learned Counsel for the parties at length and perused the
record.
8. In the present case, there are two agreements to sale executed by the
defendants. First is agreement Exhibit P/1, executed by defendant No. 2 in favour
of the plaintiff, which is executed on 24.09.1990. This agreement to sale contains
averments that sale consideration is Rs. 45,000/-. Registered sale deed shall be
executed in Baisakh month of the year 1991, which would translate to about
March/April 1991.
9. The second agreement to sale is Exhibit P/2, which has been executed
on 07.12.1990 by the defendant no. 1 in favour of the plaintiff, in which the agreed
sale consideration is Rs. 35,000/ and out of that an advance of Rs. 2,500/- has been
received in cash and rest of the amount is to be paid up to 07.01.1991 and sale
deed is to be executed by that date.
10. In the aforesaid manner against the two agreements to sale, the total
agreed sale consideration is Rs. 80,000/- out of which a total amount of Rs.
47,500/- has been paid in cash to the proposed vendor as token/advance. The
agreements have duly been proved in trials and this Court does not find any error
in that part of the judgment under challenge whereby the two agreements have
been found to be proved.
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MISHRA
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FIRST APPEAL NO. 204 OF 1998.
11. So far as the exhibit P/2 is concerned, which was to be performed up
to 07/01/1991, a notice dated 07/01/1991 is on record as Exhibit P/3 issued by the
plaintiff to defendant No. 2 which was replied by defendant No. 2 on 14/01/1991
stating that since up to 07/01/1991 the plaintiff did not take any care to get the sale
deed executed, therefore, the property has been sold to the defendants No. 3 and 4.
12. On the strength of the aforesaid documents the trial court has arrived
at conclusion that there was readiness & willingness of the plaintiff because
immediately upon getting knowledge of sale deed having been executed of the suit
properties, immediately thereafter filed suit on 15/1/1991 and therefore the
readiness and willingness of the plaintiff is really proved.
13. This court does not find any error in the aforesaid finding of the trial
court that up to the date of issuance of notice, the plaintiff seems to be ready and
willing to perform his part of the agreement. However, the decree of specific
performance in discretionary cannot be granted only upon proving the readiness
and willingness of the plaintiff up to a particular date, but his overall conduct has
to be seen till the date of filing of the suit.
14. The suit was filed on 15.01.1991, but very strangely the suit was filed
only for permanent injunction seeking protection of possession of the plaintiff on
the suit property, projecting that the plaintiff has entered into possession on the
strength of the agreements. Further he sought to challenge the sale deed dated
06.03.1991 executed in favour of defendants nos.3 and 4 by defendants nos. 1 and
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MISHRA
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2 should be null and void as against the interests of the plaintiffs. No relief of
specific performance was sought.
15. The relief of specific performance was sought to be inserted by filing
an application for amendment on 05.01.1994 and it was vehemently argued by
learned counsel for the appellant before this court that the limitation for filing of
the suit for specific performance would not relate back to the date of initial date of
filing of the suit which was 14.03.1991, but it would not be date of allowing of
amendment which was 25.04.1995.
16. It is not in dispute that when the amendment application was filed on
05.01.1994, then in the same application for amendment along with seeking a
relief of specific performance of agreement, the alternative relief of refund of
advance as well as modification of valuation of court fees was sought in the plaint.
17. The trial court without allowing the application returned the plaint on
25.03.1995 which was then filed before the district court on 06.04.1995 and
thereafter the district court allowed the said application which was captioned as
I.A. No. 6, only on 25.04.1995 and then the suit was converted into a suit for
specific performance.
18. It is settled in law that the relief of specific performance has to be
prayed at the outset and once the relief of specific performance is not sought in the
suit at the very outset, then it would not relate back to the date of initial filing of
the suit.
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Signed by: ARVIND KUMAR
MISHRA
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FIRST APPEAL NO. 204 OF 1998.
19. In the case of Vishwambhar v. Laxminarayan, (2001) 6 SCC 163, it
has been held as under:-
“9. On a fair reading of the plaint, it is clear that the main fulcrum on
which the case of the plaintiffs was balanced was that the alienations made by their
mother-guardian Laxmibai were void and therefore, liable to be ignored since they
were not supported by legal necessity and without permission of the competent
court. On that basis, the claim was made that the alienations did not affect the
interest of the plaintiffs in the suit property. The prayers in the plaint were inter alia
to set aside the sale deeds dated 14-11-1967 and 24-10-1974, recover possession of
the properties sold from the respective purchasers, partition of the properties
carving out separate possession of the share from the suit properties of the
plaintiffs and deliver the same to them. As noted earlier, the trial court as well as
the first appellate court accepted the case of the plaintiffs that the alienations in
dispute were not supported by legal necessity. They also held that no prior
permission of the court was taken for the said alienations. The question is, in such
circumstances, are the alienations void or voidable? In Section 8(2) of the Hindu
Minority and Guardianship Act, 1956, it is laid down, inter alia, that the natural
guardian shall not, without previous permission of the court, transfer by sale any
part of the immoveable property of the minor. In sub-section (3) of the said section,
it is specifically provided that any disposal of immoveable property by a natural
guardian, in contravention of sub-section (2) is voidable at the instance of the
minor or any person claiming under him. There is, therefore, little scope for doubt
that the alienations made by Laxmibai which are under challenge in the suit were
voidable at the instance of the plaintiffs and the plaintiffs were required to get the
alienations set aside if they wanted to avoid the transfers and regain the properties
from the purchasers. As noted earlier in the plaint as it stood before the amendment
the prayer for setting aside the sale deeds was not there, such a prayer appears to
have been introduced by amendment during hearing of the suit and the trial court
considered the amended prayer and decided the suit on that basis. If in law the
plaintiffs were required to have the sale deeds set aside before making any claim in
respect of the properties sold, then a suit without such a prayer was of no avail to
the plaintiffs. In all probability, realising this difficulty the plaintiffs filed the
application for amendment of the plaint seeking to introduce the prayer for setting
aside the sale deeds. Unfortunately, the realisation came too late. Concededly,
Plaintiff 2 Digamber attained majority on 5-8-1975 and Vishwambhar, Plaintiff 1
attained majority on 20-7-1978. Though the suit was filed on 30-11-1980 the prayer
seeking setting aside of the sale deeds was made in December 1985. Article 60 of
the Limitation Act prescribes a period of three years for setting aside a transfer of
property made by the guardian of a ward, by the ward who has attained majority
and the period is to be computed from the date when the ward attains majority.
Since the limitation started running from the dates when the plaintiffs attained
majority the prescribed period had elapsed by the date of presentation of the plaint
so far as Digamber is concerned. Therefore, the trial court rightly dismissed the
suit filed by Digamber. The judgment of the trial court dismissing the suit was not
challenged by him. Even assuming that as the suit filed by one of the plaintiffs was
within time the entire suit could not be dismissed on the ground of limitation, in the
absence of challenge against the dismissal of the suit filed by Digamber the first
appellate court could not have interfered with that part of the decision of the trial
court. Regarding the suit filed by Vishwambhar, it was filed within the prescribed
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MISHRA
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FIRST APPEAL NO. 204 OF 1998.
period of limitation but without the prayer for setting aside the sale deeds. Since
the claim for recovery of possession of the properties alienated could not have been
made without setting aside the sale deeds the suit as initially filed was not
maintainable. By the date the defect was rectified (December 1985) by introducing
such a prayer by amendment of the plaint the prescribed period of limitation for
seeking such a relief had elapsed. In the circumstances, the amendment of the plaint
could not come to the rescue of the plaintiff.”
20. In the case of Van Vibhag Karamchari Griha Nirman Sahkari
Sanstha Maryadit v. Ramesh Chander, (2010) 14 SCC 596 reported, it has
been held as under:-
“24. In the present case, the factual situation is totally different and the
appellants have not filed any suit for specific performance against the first
respondent within the period of limitation. In this context, the provision of Article
54 of the Limitation Act is very relevant. The period of limitation prescribed in
Article 54 for filing a suit for specific performance is three years from the date fixed
for the performance, or if no such date is fixed, when the plaintiff has notice that
performance is refused.
25. Here admittedly, no date has been fixed for performance in the
agreement for sale entered between the parties in 1976. But definitely by its notice
dated 3-2-1991, the first respondent has clearly made its intentions clear about
refusing the performance of the agreement and cancelled the agreement.
26. The appellant, on noticing the same, filed a suit on 11-2-1991 but he did
not include the plea of specific performance. The appellant wanted to defend this
action by referring to two facts (i) there was an acquisition proceeding over the
said land under the Land Acquisition Act, and (ii) in view of the provisions of the
Ceiling Act, the appellant could not have made the prayer for specific performance.
27. The aforesaid purported justification of the appellant is not tenable in
law. If the alleged statutory bar referred to by the appellant stood in its way to file a
suit for specific performance, the same would also be a bar to the suit which it had
filed claiming declaration of title and injunction. In fact, a suit for specific
performance could have been easily filed subject to the provision of Section 20 of
the Ceiling Act.
31. Though the appellant has not subsequently filed a second suit, as to
bring his case squarely within the bar of Order 2 Rule 2, but the broad principles of
Order 2 Rule 2, which are also based on public policy, are attracted in the facts of
this case.
32. Even though the prayer for amendment to include the relief of specific
performance was made about 11 years after the filing of the suit, and the same was
allowed after 12 years of the filing of the suit, such an amendment in the facts of the
case cannot relate back to the date of filing of the original plaint, in view of the
clear bar under Article 54 of the Limitation Act. Here in this case, the inclusion of
the plea of specific performance by way of amendment virtually alters the character
of the suit, and its pecuniary jurisdiction had gone up and the plaint had to be
transferred to a different court. This Court held
in Vishwambhar v. Laxminarayan [(2001) 6 SCC 163] , if as a result of allowing
the amendment, the basis of the suit is changed, such amendment even thoughSignature Not Verified
Signed by: ARVIND KUMAR
MISHRA
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FIRST APPEAL NO. 204 OF 1998.
allowed, cannot relate back to the date of filing the suit to cure the defect of
limitation (SCC at pp. 168-69, para 9). Those principles are applicable to the
present case.”
21. In the case of K. Raheja Constructions Ltd. v. Alliance Ministries,
1995 Supp (3) SCC 17, the Hon’ble Supreme Court has held it as under:-
“4. It is seen that the permission for alienation is not a condition precedent
to file the suit for specific performance. The decree of specific performance will
always be subject to the condition to the grant of the permission by the competent
authority. The petitioners having expressly admitted that the respondents have
refused to abide by the terms of the contract, they should have asked for the relief
for specific performance in the original suit itself. Having allowed the period of
seven years to elapse from the date of filing of the suit, and the period of limitation
being three years under Article 54 of the Schedule to the Limitation Act, 1963, any
amendment on the grounds set out, would defeat the valuable right of limitation
accruing to the respondent.”
22. In the case of Atma Ram v. Charanjit Singh, (2020) 3 SCC 311, it
has been held as under:-
“7. As a matter of fact, if the suit was actually one for specific performance,
the petitioner ought to have at least valued the suit on the basis of the sale
consideration mentioned in the agreement. But he did not. If the suit was only for
mandatory injunction (which it actually was), the only recourse open to the
petitioner was to seek an amendment under Order 6 Rule 17 CPC. If such an
application had been filed, it would have either been dismissed on the ground of
limitation (K. Raheja Constructions Ltd. v. Alliance Ministries [K. Raheja
Constructions Ltd. v. Alliance Ministries, 1995 Supp (3) SCC 17] ) or even if
allowed, the prayer for specific performance, inserted by way of amendment, would
not have been, as a matter of course, taken as relating back to the date of the plaint
(Tarlok Singh v. Vijay Kumar Sabharwal [Tarlok Singh v. Vijay Kumar Sabharwal,
(1996) 8 SCC 367] , Van Vibhag Karamchari Griha Nirman Sahkari Sanstha
Maryadit v. Ramesh Chander [Van Vibhag Karamchari Griha Nirman Sahkari
Sanstha Maryadit v. Ramesh Chander, (2010) 14 SCC 596 : (2012) 1 SCC (Civ)
777] ). Therefore, a short-cut was found by the petitioner-plaintiff to retain the
plaint as such, but to seek permission to pay deficit court fee, as though what was
filed in the first instance was actually a suit for specific performance. Such a
dubious approach should not be allowed especially in a suit for specific
performance, as the relief of specific performance is discretionary under Section 20
of the Specific Relief Act, 1963.”
23. From the aforesaid Proposition of law as held by the Hon’ble Apex
Court it is clear that the suit would not relate back to the date of filing of the suit
for the relief of specific performance, but the date would be the date when
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FIRST APPEAL NO. 204 OF 1998.
amendment is sought. In Tarlok Singh v. Vijay Kumar Sabharwal, (1996) 8 SCC
367, it has been held that the relief shall relate back to the date the application is
allowed. Later, in Sampath Kumar v. Ayyakannu, (2002) 7 SCC, a different view
was taken that where an amendment is not expressly directed to relate back to the
date of filing of the plaint, it would relate back to the date of filing of the
amendment application. If the date of filing of the amendment application is taken
as the relevant date, it is 05.01.1994. It must therefore be examined whether the
suit was barred by limitation on that date.
24. So far as the agreement exhibit P/1 is concerned, the date fixed for
performance of the agreement was Baisakh of 1991, that means March/April 1991
and therefore the amendment was sought within 3 years.
25. So far as the agreement exhibit P/2 is concerned, the date fixed for
performance was 7-1-1991 and the amendment has been sought on 5-1-1994 which
is also within 3 years of accrual of cause of action and therefore calculating the
limitation up to the date of filing of application for amendment in suit comes to be
within limitation of 3 years in terms of Article 54 of Limitation Act, 1966. This
Court therefore does not accept the argument of the learned counsel for the
appellant that the suit was barred by limitation because the amendment of specific
performance was sought in the suit on 5-1-1994 and 3 years had not elapsed from
accrual of cause of action on the said date.
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MISHRA
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FIRST APPEAL NO. 204 OF 1998.
26. However, it is to be seen that whether in view of peculiar facts and
circumstances of the case the discretionary and equitable relief of specific
performance can be granted.
27. It is settled in law that the relief of specific performance is
discretionary and equitable. Readiness and willingness has to be shown continuous
up to the date of filing of the suit which is also settled legal proposition and so far
as the relief of specific performance is concerned the date of filing of suit, even if
taken to be 5-1-1994 which was the date of filing application for amendment,
no readiness and willingness has been shown from March 1991 till January 1994
when the application for amendment was filed.
28. Even in cases where the suit is filed just before expiry of period of
limitation then it is a sufficient ground to decline equitable relief of specific
performance for purchase of immovable property as held by the Hon’ble Supreme
Court in case of U.N. Krishnamurthy v. A.M. Krishnamurthy, (2023) 11 SCC
775 as under:-
“39. As argued by Mr Venugopal, the fact that the suit had been filed after
three years, just before expiry of the period of limitation, was also a ground to
decline the respondent-plaintiff the equitable relief of specific performance for
purchase of immovable property. Mr Venugopal’s argument finds support from the
judgments of this Court in P.R. Deb & Associates v. Sunanda Roy [P.R. Deb &
Associates v. Sunanda Roy, (1996) 4 SCC 423] ; K.S. Vidyanadam v. Vairavan [K.S.
Vidyanadam v. Vairavan, (1997) 3 SCC 1] ; Manjunath
Anandappa v. Tammanasa [Manjunath Anandappa v. Tammanasa, (2003) 10 SCC
390] ; Azhar Sultana v. B. Rajamani [Azhar Sultana v. B. Rajamani, (2009) 17 SCC
27 : (2011) 1 SCC (Civ) 761] ; Saradamani Kandappan v. S.
Rajalakshmi [Saradamani Kandappan v. S. Rajalakshmi, (2011) 12 SCC 18 :
(2012) 2 SCC (Civ) 104] .
49. In Bhavyanath v. K.V. Balan [Bhavyanath v. K.V. Balan, (2020) 11 SCC
790] cited by Mr Raju to contend that the respondent-plaintiff was entitled to relief
of specific performance and the courts had rightly granted such relief, the plaintiff
had filed the suit for specific performance three days after the last day for
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FIRST APPEAL NO. 204 OF 1998.
execution of the sale deed. In this case however, the respondent-plaintiff waited for
nearly 3 years and filed the suit for specific performance just before expiry of the
limitation period. Furthermore, in Bhavyanath v. K.V. Balan [Bhavyanath v. K.V.
Balan, (2020) 11 SCC 790] the plaintiff had adduced cogent evidence to prove his
readiness and willingness to discharge his part of the contract and to prove that he
had sufficient funds to discharge his obligation. No such evidence has been
adduced by the respondent-plaintiff in this case either to show his readiness or to
prove that sufficient funds were available with him to enable him to discharge his
part of contract. Therefore, Bhavyanath v. K.V. Balan [Bhavyanath v. K.V. Balan,
(2020) 11 SCC 790] is of no assistance to the respondent-plaintiff.”
29. Moreover, in the amendment application alternative plea was made
for refund of consideration amount and when such a plea is made, then also grant
of relief of specific performance becomes discretionary, as held by the Hon’ble
Supreme Court in S. Rangaraju Naidu v. S. Thiruvarakkarasu, AIR 1995 SC
1769 and Kanshi Ram v. Om Prakash Jawal, AIR 1996 SC 2150.
30. In view of the aforesaid, though this Court holds that the suit for
specific performance was within the limitation period, but this Court does not
deem it appropriate to confirm decree to the extent of granting the relief of specific
performance.
31. Therefore, the impugned decree passed by the trial court is modified
in the following terms:-
(i) The sale deeds executed in respect of land situated in survey
Nos. 365/9, 365/3 and 366/2 total area 1.947 in favor of defendant nos. 3
and 4 would be valid and binding as against the plaintiff.
(ii) The plaintiff is not entitled to decree for specific performance,
but he is entitled to get refund of token/advance amount of Rs. 47,500/-
from the defendant Nos. 1 and 2 which would be with interest at the rate
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FIRST APPEAL NO. 204 OF 1998.
of 9% per annum from the date of filing application for amendment,
i.e. 05.01.1994 till date of actual realization.
32. In the above terms, the appeal is partly allowed and disposed of.
(VIVEK JAIN)
JUDGE
MISHRA
Signature Not Verified
Signed by: ARVIND KUMAR
MISHRA
Signing time: 08-07-2026
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