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2013 DIGILAW 321 (HP)

Satya Devi Alias Sita Devi v. Rajo Devi

2013-04-17

RAJIV SHARMA

body2013
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree, dated 22.12.2003, passed by the learned Additional District Judge, Hamirpur, District Hamirpur, H.P., in Civil Appeal No. 143/98. 2. 'Key facts' necessary for the adjudication of this Regular Second Appeal, are that the respondents-plaintiffs (hereinafter referred to as "the plaintiffs" for the sake of convenience) have filed the suit for possession by way of demolition of shops and house illegally and un-authorisedly constructed by the appellants-defendants (hereinafter referred to as "the defendants" for the sake of convenience) in respect of the land comprised in Khata No. 48, Khatauni No. 49, Khasra No. 71 min, plot 1, measuring 2 Kanals 11 Marlas, situate in Tika Chuthiar, Tappa Baldhhak, Tehsil Nadaun, District Hamirpur, H.P., as per copy of Jamabandi for the year1988-89, on the averments that the suit land is recorded Shamlat Hasab Rasad Malguzari Taraf Khalsa and in possession of the defendants as trespassers. Further case of the plaintiffs is that during consolidation operation carried out in Tika Chuthiar in the year 1978-79 and prior to consolidation, the father of plaintiff, Mohan Lal (since deceased), Shri Thunia, was in possession of field No. 53/1, measuring 48 Kanals 3 Marlas alongwith other co-sharers and that late Shri Thunia has sold 1/12 share out of field No. 337/53/1, 338/53/1, measuring 4 Kanals to Shri Mohar Singh and his brother Jai Singh for a consideration of Rs. 600/- vide registered sale deed in the year 1959 and mutation No. 182 was sanctioned in favour of Shri Mohar Singh and his brother Jai Singh on 20.09.1970. The defendant Shri Mohar Singh alongwith his brother Jai Singh was allotted Khasra Nos. 72 and 74, measuring 4 Kanals, comprising Khata No. 9, Khatoni No. 9 in Tika Chuthiar in lieu of land purchased by him and defendant Mohar Singh during consolidation got land entered in Khata No. 31, Khatoni No. 34, Khasra No. 71 min, measuring 2 Kanals 4 Marlas corresponding to previous field No. 53/1 in collusion with consolidation staff un-authorisedly and illegally as tenant at will under plaintiffs with entry in rent column as Mashkuk, but in fact, this entry was a paper entry against which the plaintiff Mohan Lal filed a revision petition under Section 54 of the H.P. Consolidation of Holdings Act No. 20 of 1971 before the Director Consolidation of Holdings. The said entry was declared unauthorized and cancelled and the previous entry was restored in favour of the plaintiffs as owners in possession vide order, dated 21.11.1983. Thereafter, the plaintiffs are coming in possession of the same. Defendants have also filed a suit bearing No. 99/84 on 31.05.1984 for declaration and permanent injunction against the plaintiffs titled Mohar Singh etc. v. Mohan Lal etc. before the learned Sub Judge 1st Class (I), Hamirpur. 3. The suit was contested by the defendants. According to the defendants, they were in possession of the suit land for more than 30 years. They have constructed a house and planted fruit bearing trees on the same. According to them, defendant Mohar Singh and his brother purchased land from the father of plaintiff Shri Mohan Lal alongwith share in the Shamlat land and accordingly the mutation was also sanctioned. The defendant No. 1, Mohar Singh has constructed a house and shops and planted a Bagicha and grassy leaves trees over the same. According to them, some land in lieu of his old holdings, was allotted to Sh. Mohar Singh by consolidation authorities in Tika Chuthiar, but whole of the Shamlat land in Village Chuthiar was kept out of consolidation and the defendants continued to be in possession of the Shamlat land and the entries showing plaintiff Mohan Lal in possession were wrong. 4. The replication was filed by the plaintiffs. The issues were framed by the learned Senior Sub Judge, Hamirpur, H.P. on 20.03.1992. He decreed the suit on 1.7.1998. 5. The defendants preferred an appeal before the learned Additional District Judge, Hamirpur, H.P. It would be apt at this stage to note that defendant Mohar Singh, who was arrayed as defendant No. 1 in Civil Suit No.96-1 of 1991, died during the pendency of 1st Appeal and his legal representatives were brought on record. Learned Additional District Judge dismissed the appeal on 22.12.2003. Hence, this Regular Second Appeal. 6. This Regular Second Appeal was admitted on the following substantial questions of law on 13.04.2004: "1. Whether the suit for possession, as filed by the plaintiff, was maintainable against the defendant who is cosharer in the land? 2. Whether the first appellate court erred in rejecting the application of the defendant for additional evidence"? 7. Plaintiff No. 1, Mohan Lal, as arrayed in Civil Suit No. 96-1 of 1991, died during the pendency of this appeal. Whether the suit for possession, as filed by the plaintiff, was maintainable against the defendant who is cosharer in the land? 2. Whether the first appellate court erred in rejecting the application of the defendant for additional evidence"? 7. Plaintiff No. 1, Mohan Lal, as arrayed in Civil Suit No. 96-1 of 1991, died during the pendency of this appeal. Accordingly, his legal representatives were brought on record on 09.04.2013. 8. Now, as far as second substantial question of law is concerned, the defendants have moved an application under Order 41, Rule 27 of the Code of Civil Procedure for placing on record copy of order, dated 21.11.1983, passed by the Director, Consolidation of Holdings, H.P. Shimla under Section 54 of the H.P. Consolidation of Holdings Act, 1971. The application was rejected by the learned District Judge on 17.12.1999 by passing a reasoned order. Learned District Judge has rightly come to the conclusion while dismissing the application that the parties cannot be permitted to fill up lacunae in the case. The document, dated 21.11.1983, was in existence at the time when the suit was filed. The application under Order 41, Rule 27 of the Code of Civil Procedure has been filed only in the year 1999. The order passed by the learned District Judge is in conformity with law. 9. It is settled law by now that party guilty of remissness in not producing evidence in trial court, cannot be allowed to produce it in appellate court. There must be satisfactory reasons for non-production of the evidence in trial court seeking production thereof in appellate court. Their Lordships of the Hon'ble Supreme Court in a recent judgment in Union of India v. Ibrahim Uddin and another, (2012) 8 SCC 148 have held as under: "36. The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41, Rule 27 CPC enables the Appellate Court to take additional evidence in exceptional circumstances. The Appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, provision does not apply, when on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment. The Appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, provision does not apply, when on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself. (Vide: K. Venkataramiah v. A. Seetharama Reddy & Ors., AIR 1963 SC 1526 ; The Municipal Corporation of Greater Bombay v. Lala Pancham & Ors., AIR 1965 SC 1008 ; Soonda Ram & Anr. v. Rameshwaralal & Anr., AIR 1975 SC 479 ; and Syed Abdul Khader v. Rami Reddy & Ors., AIR 1979 SC 553 ). 37. The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide: Haji Mohammed Ishaq Wd. S. K. Mohammed & Ors. v. Mohamed Iqbal and Mohamed Ali and Co., AIR 1978 SC 798 ). 38. Under Order 41, Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. [Vide: Lala Pancham & Ors. (supra) ]. 39. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. [Vide: Lala Pancham & Ors. (supra) ]. 39. It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the non-production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide: State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912 ; and S. Rajagopal v. C.M. Armugam & Ors., AIR 1969 SC 101 ). 40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal. 41. The words "for any other substantial cause" must be read with the word "requires" in the beginning of sentence, so that it is only where, for any other substantial cause, the Appellate Court requires additional evidence, that this rule will apply, e.g., when evidence has been taken by the lower Court so imperfectly that the Appellate Court cannot pass a satisfactory judgment. 42. Whenever the appellate Court admits additional evidence it should record its reasons for doing so. (Sub-rule 2). It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. 42. Whenever the appellate Court admits additional evidence it should record its reasons for doing so. (Sub-rule 2). It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason of this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the Court of further appeal to see, if the discretion under this rule has been properly exercised by the Court below. The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory, if the reception of such evidence can be justified under the rule. 43. The reasons need not be recorded in a separate order provided they are embodied in the judgment of the appellate Court. A mere reference to the peculiar circumstances of the case, or mere statement that the evidence is necessary to pronounce judgment, or that the additional evidence is required to be admitted in the interests of justice, or that there is no reason to reject the prayer for the admission of the additional evidence, is not enough compliance with the requirement as to recording of reasons. 44. It is a settled legal proposition that not only administrative order, but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice - delivery system, to make it known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the principles of natural justice. The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected. (Vide: State of Orissa v. Dhaniram Luhar, AIR 2004 SC 1794 ; State of Uttaranchal & Anr. v. Sunil Kumar Singh Negi, AIR 2008 SC 2026 ; The Secretary & Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity & Ors., AIR 2010 SC 1285 ; and Sant Lal Gupta & Ors. v. Modern Cooperative Group Housing Society Limited & Ors., (2010) 13 SCC 336 ). 45. In The Land Acquisition Officer, City Improvement Trust Board, Bangalore v. H. Narayanaiah etc. etc., AIR 976 SC 2403, while dealing with the issue, a three judge Bench of his Court held as under: "We are of the opinion that the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it an opportunity should have been given to the appellant to rebut any inference arising from its insistence by leading other evidence." (Emphasis added). A similar view has been reiterated by this Court in Basayya I. Mathad v. Rudrayya S. Mathad and Ors., AIR 2008 SC 1108 . 46. A Constitution Bench of this Court in K. Venkataramiah (Supra), while dealing with the same issue held: "It is very much to be desired that the courts of appeal should not overlook the provisions of clause (2) of the Rule and should record their reasons for admitting additional evidence.. The omission to record reason must, therefore, be treated as a serious defect. Even so, we are unable to persuade ourselves that this provision is mandatory." (Emphasis added) In the said case, the court after examining the record of the case came to the conclusion that the appeal was heard for a long time and the application for taking additional evidence on record was filed during the final hearing of the appeal. Even so, we are unable to persuade ourselves that this provision is mandatory." (Emphasis added) In the said case, the court after examining the record of the case came to the conclusion that the appeal was heard for a long time and the application for taking additional evidence on record was filed during the final hearing of the appeal. In such a factsituation, the order allowing such application did not vitiate for want of reasons. 47. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record such application may be allowed. 48. To sum up on the issue, it may be held that application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite condition incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage. Stage of Consideration : 38. An application under Order 41, Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. However, the application should not be moved at a belated stage. Stage of Consideration : 38. An application under Order 41, Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the Appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the Appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court. (Vide: Arjan Singh v. Kartar Singh & Ors., AIR 1951 SC 193 ; and Natha Singh & Ors. v. The Financial Commissioner, Taxation, Punjab & Ors., AIR 1976 SC 1053 )." 10. Now, the Court will advert to the 1st substantial question of law. It has come in the statement of PW-1, Shri Purshotam Chand that the defendants are residents of Village Bamlehar, which is at a distance of 1 km. from the suit land. Defendant Mohar Singh has purchased land measuring 4 Kanals from Shri Runia in the year 1958-59. The consolidation operation took place in the area. Khasra Nos. 72 and 74, measuring 4 Kanals were allotted to the defendants. The defendants have no concern and connection with the suit land, but the defendant No. 1, in connivance with the consolidation staff, got himself entered as tenant at will and then they had to file an appeal before the Director of Consolidation, which was allowed and the entries made in favour of the defendants were cancelled. The defendants have also filed a suit in 1984, which was decreed in their favour in the year 1987. They preferred an appeal, in which it was decided that the defendant could be ejected in due course of law. The defendants have also filed a suit in 1984, which was decreed in their favour in the year 1987. They preferred an appeal, in which it was decided that the defendant could be ejected in due course of law. It is in these circumstances that they filed a suit for possession. PW-2 Shri Baldev and PW-3 Sh. Garib Dass have corroborated the statement of PW-1. 11. The plaintiffs have also proved on record the copy of Jamabandi for the year 1983-84, Ex.-P1, copy of Jamabandi for the year 1983-84, Ex.-P2, copies of Jamabandi for the year 1978- 79, Ex.-P3 and Ex.-P4, copy of Jamabandi for the year 1988-89 Ex.-P5, copy of Khasra Girdwari from Kharif 1989 to Kharif 1990 Ex.-P6, copy of order of Sub Judge 1st Class (I), Hamirpur Ex.-P7, copy of decree sheet Ex.-P8, copy of order passed by this Court, dated 29.06.1994 in RSA No. 81 of 1989 Ex.-P9, copy of decree sheet Ex.-P10, copy of order of District Judge, dated 09.11.1994 Ex.-P11 and copy of list of Tikadarans of Tika Chuthiar Ex.-PA. 12. DW-1, Mohar Singh has deposed that he alongwith Nikku owns the land in Tika Chuthiar which they have purchased. He also deposed that he and Nikku Ram have constructed houses 36/37 years back. They have also planted Bagicha. The plaintiffs have never stopped them when they have raised construction and orchard. According to him, Tika Chuthiar and Bamblehar are adjoining to each other. Shri Dharam Singh Local Commissioner has visited the spot and demarcated the suit land in the presence of the parties and 2 Kanals 11 Marlas of land was found in their possession. DW-2, Shri Rajinder Kumar has deposed that he remained posted as Patwari from the year 1983 to 1994. The list of Tikadarans Ex.-PA was prepared by him. 13. DW-3, Shri Kishori Lal has deposed that about 35 years back, Mohar Singh purchased 4 Kanals of land from Thunia, but he did not know who was in possession of the suit land. DW-4, Shri Roop Singh, Retired Naib Tehsildar has stated that Dharam Singh, Naib Tehsildar (Election) was his brother. He was well conversant with his handwriting. He has seen the Local Commissioner report filed in Civil Suit No. 408/83, titled Mohan Lal v. Mohar Singh, which was decided on 19.05.1984. He identified the signatures of his brother on Local Commissioner's report and Tatima prepared vide Ex.-DW4/A and Ex. He was well conversant with his handwriting. He has seen the Local Commissioner report filed in Civil Suit No. 408/83, titled Mohan Lal v. Mohar Singh, which was decided on 19.05.1984. He identified the signatures of his brother on Local Commissioner's report and Tatima prepared vide Ex.-DW4/A and Ex. DW-4/B. 14. DW-4A, Shri Parkash Chand has brought the file of Civil Suit No. 99/84, titled Mohar Singh v. Mohan Lal. He has proved the copy of statement Ex.-DW-4/A, copy of statement of Mohan Lal, Ex.-DW-4/B and the copy of statement of Tulsi Ram Ex. DW-4/B. 15. The defendants have also proved on record the copy of Jamabandi for the year 1988-89 of Khasra No. 327 Ex-DA, copy of Jamabandi for the year 1988-89 of Khasra No. 440/382, Ex.-DB, copy of Jamabandi for the year 1983-84 Ex.-DC, copy of Jamabandi for the year 1954-55 Ex. DD, copy of mutation No. 182 Ex.-DE, copy of mutation No. 179 Ex.-DF and copy of sale deed Ex.-DG. 16. What emerges from the facts enumerated hereinabove is that Mohar Singh has purchased 4 Kanals land out of Khasra Nos. 337/53/1, 338/53/1 from the father of Shri Mohan Lal, namely, Shri Thunia in the year 1959. The mutation to this effect was also sanctioned on 20.09.1970. The defendants have got land entered in Khata No. 31, Khatoni No. 34, Khasra No. 71 min, measuring 2 Kanals 4 Marlas corresponding to previous field No. 53/1 min in collusion with consolidation staff un-authorisedly and illegally as tenant at will under plaintiffs with entry in rent column as Mashkuk. This entry was assailed by the plaintiffs by filing a revision petition under Section 54 of the H.P. Consolidation of Holdings Act No. 20 of 1971. The revision petition was accepted by the Director, Consolidation of Holdings, H.P. vide order, dated 21.11.1983 and the previous entry showing the plaintiffs as owners in possession was restored. 17. It is evident from the copy of Jamabandi for the year 1983-84 Ex.-DC that Khasra Nos. 72 and 74, measuring 4 Kanals were owned by Mohar Singh, which were allotted to him vide mutation No. 304. However, vide rapat No. 317, dated 05.04.1984, passed in sequel to order, dated 21.11.1983, the entry of Mohar Singh as tenant at will was ordered to be deleted. In Jamabandi for the year 1983-84, Ex.-P2, the plaintiffs are recorded in possession of Khasra No. 71. However, vide rapat No. 317, dated 05.04.1984, passed in sequel to order, dated 21.11.1983, the entry of Mohar Singh as tenant at will was ordered to be deleted. In Jamabandi for the year 1983-84, Ex.-P2, the plaintiffs are recorded in possession of Khasra No. 71. However, in copy of Jamabandi for the year 1988-89, the entry of defendants effected in the column of possession of Khasra No. 71, measuring 2 Kanals 11 Marlas without any basis and foundation. There is a note in red ink in the column of remarks that entry in favour of Shri Mohar Singh, defendant No. 1 as tenant at will has been cancelled by the order of the Director of Consolidation of Holdings vide rapat No. 317, dated 05.04.1984. The defendants have not led any tangible evidence to prove how they came in possession of the suit land. The defendant No. 1 and his brother Jai Singh have purchased 4 Kanals of land for a consideration of Rs. 600/- vide registered sale deed Ex.-DG out of Khasra Nos. 337/53/1 and 338/53/1. The suit land was never sold to the defendants. It is also not established from the sale deed and mutation that land comprised in Khasra No. 71, measuring 2 Kanals 11 Marlas was part of Shamlat land, which came in the share of Thunia, father of plaintiff No. 1, Shri Mohan Lal. The defendants have never purchased the suit land, as argued by them. If they had purchased Shamlat land, the same would have been reflected, as noticed above, in sale deed or mutation. The suit has been filed by the plaintiffs claiming possession of Khasra No. 71 min, plot 1, measuring 2 Kanals 11 Marlas, which was never sold to the defendants by the father of plaintiffs No. 1, Shri Mohan Lal. In view of this, it cannot be held that the suit was not maintainable against the defendants. The Courts below have correctly appreciated Ex.-DG and mutation Ex.-DE and Ex.-PA i.e., Fard Malkan as well. In Ex.-DG, only Khata No. 10 min, Khatauni No. 16, Khasra Nos. 337 min/53 and 338 min/53 are mentioned. There is no reference of Khasra No. 71 min, measuring 2 Kanals 4 Marlas. Both the substantial questions of law are answered accordingly. 18. The Courts below have correctly appreciated Ex.-DG and mutation Ex.-DE and Ex.-PA i.e., Fard Malkan as well. In Ex.-DG, only Khata No. 10 min, Khatauni No. 16, Khasra Nos. 337 min/53 and 338 min/53 are mentioned. There is no reference of Khasra No. 71 min, measuring 2 Kanals 4 Marlas. Both the substantial questions of law are answered accordingly. 18. Accordingly, in view of the observations and analysis made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending application(s), if any. No costs.