Anil Kumar Singh Vs Bhola Mian

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IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL MISCELLANEOUS JURISDICTION No.799 of 2023

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Anil Kumar Singh S/o Late Rama Nandan Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Tarashani Devi, W/o Kanhai Sah, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Gudiya Devi D/o Kanhai Sah, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Sapna Devi, D/o Kanhai Sah, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Kundan Sah, S/o Kanhai Sah, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Nand Kishore Sah, S/o Kanhai Sah, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Deepak Kumar, S/o Kanhai Sah, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Jathi Devi, d/o late Ramdat Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Prarli Devi, d/o Parmananda Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Gopal Singh, S/o Late Ramdat Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Balkunwar Devi, d/o late Ramdat Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Ramavati Devi, w/o late Laljee Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Phuljhari Devi, d/o late Ramjash Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Laljhari Devi, d/o late Ramjash Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Rinku Devi, d/o Laljee Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Deelip Kumar, S/o Late Laljee Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Shri Bhagwan Prasad, S/o Late Ramjash Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Nandji Prasad, S/o Late Ramjash Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Ramayan Singh, s/o Late Ramjash Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Meera Devi, d/o late Ramnandan Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Rani Devi, d/o late Ramnandan Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Indu Devi, d/o late Ramnandan Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Saroj Devi, w/o Late Ramnandan Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Pramila Devi, d/o Late Parmanand Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Urmila Devi, d/o late Parmanand Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Mohan Prasad, S/o Late Parmanand Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Hemchandra Prasad, S/o Late Parmanand Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Shambhu Prasad, S/o Late Parmanand Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Panmati Devi, w/o Late Parmanand Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Awadhkishore Sah, S/o Kanhai Sah, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Mutur Devi, d/o Late Jayotissh Sah, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Deepmala Devi, d/o Late Jayotissh Sah, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Sawminath Sah, s/o Moti Chand Sah, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Shiv Bilari Devi, w/o Jyoti Shah, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Santosh Shah, s/o late Jyoti Shah, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Binod Shah, s/o late Jyoti Shah, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Vikash Shah, S/O Late Jyoti Shah, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Ramnath Shah, S/o Moti Chand Sah, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Raghunath Sah, S/o Moti Chand Sah, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Kabar Lal Singh, S/o Thakur Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Kali Shankar Singh, S/o Ram Lagan Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Basanti Devi, D/O Late Thakur Singh, R/o Village Jhunapur, P.S. Siwan

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town, district Siwan.

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Rajvanti Devi, D/o Late Thakur Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Pooja Devi, D/o Late Thakur Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Kulwanti Devi, D/o Late Thakur Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Baachi Devi, D/o Late Thakur Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Vishwambhar Singh, S/o Thakur Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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Kanwar Lal Singh, S/o Thakur Singh, R/o Village Jhunapur, P.S. Siwan town, district Siwan.

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... ... Petitioner/s

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Versus

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Bhola Mian s/o Late Daudh Mian, r/o village Hasanpura, PS Majharul Nagar, District Siwan, at present r/o village Jhunpur, Siwan, District Siwna.

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Ali Hussain, S/o Kamdar Miyan, R/o village Bindusar, PS Siwan Town, District Siwan.

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Hasiban Khatoon, w/o Ajmullah, R/o village Bindusar, PS Siwan Town, District Siwan.

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Noor Tara, W/o Ramanya Miyan, R/o village Bindusar, PS Siwan Town, District Siwan.

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Chand Babu Ansari, S/o Ramayan Miyan, R/o village Bindusar, PS Siwan Town, District Siwan.

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Khurshid Ansari, S/o Ramayan Miyan, R/o village Bindusar, PS Siwan Town, District Siwan.

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Azeem Ansari, S/o Ramayan Miyan, R/o village Bindusar, PS Siwan Town, District Siwan.

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Mannu Ansari, s/o Ramayan Miyan, R/o village Bindusar, PS Siwan Town, District Siwan.

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Jamila, daughter of Rahman Miyan, R/o village Bindusar, PS Siwan Town, District Siwan.

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Nagma, daughter of Rahman Miyan, R/o village Bindusar, PS Siwan Town, District Siwan.

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Rubi Khatun, daughter of Rahman Miyan, R/o village Bindusar, PS Siwan Town, District Siwan.

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Paras Pandey, S/o Murlidhar Pandey, R/o village Bindusar, PS Siwan Town, District Siwan.

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Shanti Pandey, s/o Murlidhar Pandey, R/o village Bindusar, PS Siwan Town, District Siwan.

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Akhatar Mian, s/o late Majid Mian, R/o village Bindusar, PS Siwan Town,

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District Siwan.

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Aavid Mian, s/o late Majid Mian, R/o village Bindusar, PS Siwan Town, District Siwan.

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Sahjaha Khatoon, d/o late Majid Mian, R/o village Bindusar, PS Siwan Town, District Siwan.

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Jaitun Khatoon, d/o late Majid Mian, R/o village Bindusar, PS Siwan Town, District Siwan.

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... ... Respondent/s

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====================================================== Appearance : For the Petitioner/s : Mr.Chandra Kant, Advocate Mr. Navin Kumar, Advocate For the Respondent/s : Mr.Ajay Kumar Pandey, Advocate Mr. Arbind Kumar Singh, Advocate Ms. Shyama Rani, Advocate

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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA ORAL JUDGMENT

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Date : 08-04-2025

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Heard learned counsel for the parties and I intend to dispose of the petition at the stage of admission itself.

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2.The petitioners are aggrieved by the order dated 13.01.2023 passed by learned Munsif 1^st , Siwan in Title Suit No. 335 of 1991, whereby and whereunder the learned trial court has rejected the application dated 24.10.2019 filed on behalf of the petitioners for amendment in the written statement.

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Learned counsel for the petitioners submits that the petitioners are defendants and respondent no. 1 is the plaintiff before the learned trial court. In paragraph 26 of the written statement there is mention of one gift deed dated 01.09.1993 but the said gift deed was executed on 01.09.1973. The petitioners moved amendment petition for correction of the

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typographical error which was rejected by the learned trial court. Learned counsel further submits that though the amendment petition was moved at the time of evidence of defendants, the same would not cause any prejudice to the other side as only the date of the gift deed is sought to be amended and it is apparent from bare perusal of the record that in place of ‘73’, ‘93’ has been mentioned in paragraph 26 of the written statement. Apart from that no other change is being made in the written statement. Thus, the learned counsel submits that the impugned order may be set aside.

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Learned counsel appearing on behalf of respondent no. 1 submits that the amendment petition dated 24.10.2019 was the 3^rd petition, whereby and whereunder the petitioners sought amendment in the written statement with regard to the date of the gift deed. Earlier two petitions were not pressed and dismissed. Therefore, the petitioners have been grossly negligent in seeking amendment at the stage when the trial has already commenced. Learned counsel submits that the impugned order has been passed after due consideration of the fact and does not suffer from any infirmity.

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Having regard to the rival submission of the parties and on perusal of the record, I find that though the amendment

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has been moved after commencement of trial, the amendment is related to only correction in the date of the gift deed which appears to be a typographical error. The intent of Order 6 Rule 17 of the Code of Civil Procedure (in short ‘the Code’) is to determinr the real controversy between the parties and all the amendments could be allowed for this purpose. However, proviso to Order 6 Rule 17 of the Code provides amendment shall not be allowed after commencement of trial unless due diligence is shown by the party seeking amendment for not bringing the amendment before commencement of trial. But, the Hon’ble Supreme Court in the case of Life Insurance Corporation of India v. Sanjeev Builders (P) Ltd. , reported in 2022 SCC OnLine SC 1128 in paragraph 70 held as under:-

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“70. Our final conclusions may be summed up thus:

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(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.

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(ii) All amendments are to be allowed which are necessary for determining the real

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question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC.(iii) The prayer for amendment is to be allowed

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(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

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(ii) to avoid multiplicity of proceedings, provided

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(a) the amendment does not result in injustice to the other side,

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(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and

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(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

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(iv) A prayer for amendment is generally required to be allowed unless

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(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a

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relevant factor for consideration,

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(ii) the amendment changes the nature of the suit,

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(iii) the prayer for amendment is malafide, or

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(iv) by the amendment, the other side loses a valid defence.

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(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. (vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

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(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

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(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

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(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

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(x) Where the amendment changes the nature of the suit or the cause of action, so as to set

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up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi, 2022 SCC OnLine Del 1897)”.

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So a liberal approach could be adopted if the amendment is for effective and proper adjudication of the controversy between the parties to avoid multiplicity of proceeding,

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provided it does not result in injustice to the other side. Here the amendment sought is most formal and merely typographical error.

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So far as the contention of learned counsel for the respondent no. 1 that the earlier applications have been rejected is concerned, admittedly those applications were not pressed and no orders have been passed on merit. But the perusal of those two applications also make it clear that the petitioners have been negligent all along.

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Therefore, without further discussion, I am of the opinion that the learned trial court erred on this point and rejected the amendment application and the same cannot be sustained hence, the impugned order dated 13.01.2023 is set aside. The amendment application dated 24.10.2019 is allowed subject to payment of cost of Rs.5,000/- to be paid at the time of hearing before the learned trial court. Accordingly, the present petition stands allowed.

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Since it is a suit of 1991 and a number of administrative directions have been issued to the court concerned to dispose of the old matters on priority basis, the learned trial court is directed to dispose of Title Suit No. 335 of 1991 within six months from the date of receipt/production of a

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copy of this order as the parties undertake before this Court that they will not seek unnecessary adjournment and cooperate in disposal of the suit.

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(Arun Kumar Jha, J)

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DKS/-

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AFR/NAFR	NAFR
CAV DATE	NA
Uploading Date	17.04.2025
Transmission Date	NA

Anil Kumar Singh v. Bhola Mian

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Anil Kumar Singh v. Bhola Mian

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