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2024 DIGILAW 607 (JHR)

Haro Mahto v. Rameshwar Mistry

2024-06-22

SUJIT NARAYAN PRASAD

body2024
JUDGMENT : SUJIT NARAYAN PRASAD, J. Prayer : 1. The instant petition under Article 227 of the Constitution of India is directed against the order dated 27.06.2023 passed in T.S. No.127/2016 by the Court of Sub-Judge-I, Giridih, whereby and whereunder, petition for amendment filed under Order 6 Rule 17 of the CPC in the plaint, has been rejected on the ground that amendment cannot be allowed at the stage of evidence, i.e., after commencement of trial, amendment in plaint is not formal in nature. Facts 2. The brief facts of the case, as per the pleading made in the petition, required to be enumerated reads as under:- 3. It is the case of the petitioners that the petitioners are the plaintiffs in T.S. No.127/2016 and has prayed for the following reliefs:- a) That on adjudication of title of the plaintiffs on the suit scheduled below be declared. b) That the plaintiffs be put in Khas possession of the suit lands by removing the pillars or structures standing thereon through the process of the Court. c) That the costs of the suit and interest thereon pendent lite and till the realization of the same be awarded to the plaintiffs against the defendants. 4. Thereafter, the plaintiffs-petitioners preferred a petition under Order 6 Rule 17 of the CPC vide MCA No.101 of 2023 filed on 09.02.2023 seeking liberty of the learned court below to permit the plaintiffs to carry out necessary amendment which was primarily caused due to inadvertent typographical and clerical error which is formal and will not change the nature of the suit. The plaintiffs-petitioners prayed for carrying out the following amendment:- a) That, in para 11 line 3 about after “35” be deleted in that place “45” be written. b) That, in para “15” on the plaint in line 7 has after “ .04 ” be deleted and in that place “.05” be written. c) That, in schedule of the plaint area “.04” be deleted and in that place “.05” be written. d) That in the schedule of the plaint boundary North-Degan Rana after “Now Plaintiffs” be replaced and in that place “Now Defendants in same plot “be written”. e) That in the schedule of the plaint boundary West-Degan Rana after “Now plaintiff” be replaced and in that place “Now defendants “in same plot” be written. d) That in the schedule of the plaint boundary North-Degan Rana after “Now Plaintiffs” be replaced and in that place “Now Defendants in same plot “be written”. e) That in the schedule of the plaint boundary West-Degan Rana after “Now plaintiff” be replaced and in that place “Now defendants “in same plot” be written. f) That in the schedule of the plaint boundary East “in same plot” be deleted. 5. The defendants-respondents opposed the said amendment petition challenging the maintainability of the same. The learned court below vide order dated 27.06.2023 passed in O.S. No.1376/2019 (T.S. No.127 of 2016) adjudicating the MCA No.101 of 2023 has rejected the same primarily on the ground that the suit is at the stage of evidence on behalf of plaintiffs, i.e., after commencement of trial, amendment in plaint is not formal in nature and it will change the nature and character of suit. 6. It is evident from the plaint the suit has been filed for declaration of title and Khas possession in Title Suit No.127 of 2016. The trial has commenced and the issue was framed and the case is at the stage of evidence. The petition has been filed under Order 6 Rule 17 of the CPC seeking therein the following amendments in the plaint as referred in Annexure-2, for ready reference, the same is being referred as under:- a) That, in para 11 line 3 about after “35” be deleted in that place “45” be written. b) That, in para “15” on the plaint in line 7 has after “.04 ” be deleted and in that place “.05” be written. c) That, in schedule of the plaint area “.04” be deleted and in that place “.05” be written. d) That in the schedule of the plaint boundary North-Degan Rana after “Now Plaintiffs” be replaced and in that place “Now Defendants in same plot “be written”. e) That in the schedule of the plaint boundary West-Degan Rana after “Now plaintiff “ be replaced and in that place “Now defendants “in same plot” be written. f) That in the schedule of the plaint boundary East “in same plot” be deleted. 7. e) That in the schedule of the plaint boundary West-Degan Rana after “Now plaintiff “ be replaced and in that place “Now defendants “in same plot” be written. f) That in the schedule of the plaint boundary East “in same plot” be deleted. 7. The said petition has been objected by filing rejoinder on behalf of the defendants by taking the ground, if such amendment will be allowed, the nature of suit, will be changed, as also, such amendment cannot be allowed after the commencement of the trial and at the stage of evidence. 8. The learned court has rejected the said petition vide order 27.06.2023. 9. The plaintiffs, being aggrieved with the same, is before this Court by filing petition under Article 227 of the Constitution of India. Argument of the Petitioners 10. Mr. R.N. Sahay, learned senior counsel for the petitioners has taken the following ground in assailing the impugned order that:- (i) The nature of amendment which has been sought for, cannot be said to change the nature of the suit, but the learned court without considering the aforesaid aspect of the matter, has rejected the amendment petition that too without assigning any reason as to how, the nature of suit is to be changed by allowing the amendment, which according to him is formal in nature. (ii) The second ground has been taken by the learned court that the amendment cannot be allowed once the trial is commenced but the said reason is contrary to the legal position as provided under Order 6 Rule 17, wherein, even after commencement of the trial, rather, in course of appeal also, the amendment can be allowed if the requirement as provided under Order 6 Rule 17 of the CPC has been followed. 11. Learned Senior Counsel for the petitioners, based upon the aforesaid ground, has submitted that the impugned order, therefore, suffers from an error, hence, the same may be quashed and set aside. Argument of the Respondents 12. Mr. Arjun Narayan Deo, learned counsel has put his appearance on behalf of respondents-defendants on being called upon by issuing notice upon the respondents, vide order dated 16.02.2024. 13. Mr. Deo, learned counsel has submitted that there is no error in the impugned order. Argument of the Respondents 12. Mr. Arjun Narayan Deo, learned counsel has put his appearance on behalf of respondents-defendants on being called upon by issuing notice upon the respondents, vide order dated 16.02.2024. 13. Mr. Deo, learned counsel has submitted that there is no error in the impugned order. He has taken the ground that the amendment which has been sought for, cannot be said to be formal in nature, rather, the same will change the nature of the suit and if after taking into consideration the aforesaid aspect of the matter, the amendment petition filed under Order 6 Rule 17 of the CPC has not been allowed, the same cannot be said to suffer from error. 14. He has further taken the ground that after commencement of the trial, the amendment cannot be allowed, since, the nature of amendment itself reflects that inadvertence committed on the part of the plaintiffs. 15. Mr. Deo, learned counsel for the respondents, on the basis of the aforesaid ground, has submitted that the impugned order may not be interfered with, since, the same does not suffer from an error. Analysis 16. This Court has heard the learned counsel for the parties and gone across the finding recorded by the learned trial Court in the impugned order. 17. This Court, before proceeding to examine the legality and propriety of the impugned order, needs to refer herein the provision of Order 6 Rule 17 of the CPC, which reads as under:- [17. Amendment of pleadings.-The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.] 18. It is evident from the aforesaid provision that the provision of amendment as was originally inserted after amendment in the CPC contains that there cannot be any amendment after the commencement of the trial and if the nature of the suit is going to be changed. 19. It is evident from the aforesaid provision that the provision of amendment as was originally inserted after amendment in the CPC contains that there cannot be any amendment after the commencement of the trial and if the nature of the suit is going to be changed. 19. The issue of having no amendment has been taken care of subsequently by inserting proviso to the Order 6 Rule 17 of the CPC, wherein, the word “due diligence” has been inserted making requirement that amendment can also be allowed at any stage of the proceeding even at the stage of appeal, if the party concerned is seeking to incorporate any amendment either in the plaint or the written statement, the party concerned is to show due diligence. 20. The principle of amendment has been considered in so many judgments of the Hon’ble Apex Court, reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in the case of J.J. Lal Pvt. Ltd. and Ors. vs. M.R. Murali and Anr., (2002) 3 SCC 98 , paragraphs-12 and 13 of the said judgment reads as under: “12. We may straightaway refer to a decision of this Court in Majati Subbarao v. P.V.K. Krishna Rao [ (1989) 4 SCC 732 ] which was a case under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. Eviction petition was filed on the ground of bona fide requirement of the landlord. In the written statement, the tenant denied the title of landlord which was sought to be made a ground for eviction submitting that such denial made out a ground for eviction under Section 10(2)(vi) of the Andhra Act. This Court, rejecting the argument that the denial of title must be anterior to the proceedings for eviction, held that even a denial of a landlord's title by the tenant in the written statement in an eviction petition under the Rent Act furnishes a ground for eviction and can be relied upon in the very proceedings in which the written statement containing the denial has been filed. The reasoning which appealed to this Court was that to insist that a denial of title in the written statement cannot be taken advantage of in that suit but can be taken advantage of only in a subsequent suit to be filed by the landlord, would only lead to unnecessary multiplicity of legal proceedings as the landlord would be obliged to file a second suit for ejectment of the tenant on the ground of forfeiture entailed by the tenant's denial of character as a tenant in the written statement. The submission of the learned counsel for the tenant was that in any event the landlord had failed to apply for amendment of his plaint and incorporate the ground of denial of title therein as he was bound to do in order to get relief on that ground which had arisen after the eviction petition was filed. This Court held : (SCC p. 738, para 6) “We agree that normally this would have been so but, in the present case, we find that the trial court, namely, the Rent Controller, framed an issue as to whether the tenant's denial of the landlord's title to the schedule property including the said premises was bona fide. The parties went to trial on this clear issue and the appellant had full knowledge of the ground alleged against him. It was open to him to have objected to the framing of this issue on the ground that it was not alleged in the eviction petition that the appellant had denied the title of the respondent and that the denial of title was bona fide. If he had done that the respondent could have well applied for an amendment of the eviction petition to incorporate that ground. Having failed to raise that contention at that stage it is not open now to the appellant to say that the eviction decree could not be passed against him as the ground of denial of title was not pleaded in the eviction petition.” (emphasis supplied) 13. Recently in Om Prakash Gupta v. Ranbir B. Goyal [ (2002) 2 SCC 256 ] while dealing with power of the court to take note of subsequent events and then to grant, deny or modify the relief sought for in the plaint, this Court has held : (See pp. 262-63, paras 11-12) “11. Recently in Om Prakash Gupta v. Ranbir B. Goyal [ (2002) 2 SCC 256 ] while dealing with power of the court to take note of subsequent events and then to grant, deny or modify the relief sought for in the plaint, this Court has held : (See pp. 262-63, paras 11-12) “11. The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied : (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. 12. Such subsequent event may be one purely of law or founded on facts. In the former case, the court may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6 Rule 17 CPC. Such subsequent event, the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties.” 21. The Hon'ble Apex Court in Rajkumar Gurawara vs. S.K. Sarwagi and Company Private Limited and Anr., (2008) 14 SCC 364 has laid down the conditions of the amendment as under paragraph-18 which reads as under: “18. The Hon'ble Apex Court in Rajkumar Gurawara vs. S.K. Sarwagi and Company Private Limited and Anr., (2008) 14 SCC 364 has laid down the conditions of the amendment as under paragraph-18 which reads as under: “18. Further, it is relevant to point out that in the original suit, the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and damages from the second defendant. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order 6 Rule 17 but even on merits his claim is liable to be rejected. All these relevant aspects have been duly considered by the High Court and rightly set aside the order dated 10-3-2004 of the Additional District Judge.” 22. The same view has been reiterated in the judgment rendered by the Hon'ble Apex Court in Revajeetu Builders and Developers vs. Narayanaswamy and sons and Ors., (2009) 10 SCC 84 . Relevant paragraph -63 reads as under: “63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.” 23. Thus, it is evident that the Hon'ble Apex Court has laid down the conditions of amendment: (i) when the nature of the suit is not changed; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when defeats the law of limitation, if fresh suit of amendment plaint would be passed; (iv) when there is a general rule it would be rejected but to avoid multiplicity it can be allowed. 24. This Court is now proceeding to examine the factual aspect as involved in the case so as to appreciate the reason assigned by the learned trial court by rejecting the petition filed Order 6 Rule 17 of the CPC, as available in the impugned order dated 27.06.2023. 25. The first reason has been given that there cannot be amendment after the commencement of trial, which according to the considered view of this Court, is absolutely incorrect finding, since, the learned court while assigning the said reason, has not taken into consideration the proviso to the Order 6 Rule 17 of the CPC, wherein, it has been provided that the amendment can be allowed at any stage, subject to showing due diligence by the party concerned. 26. The second ground has been taken that the amendment which has been sought for will change the nature of the suit. 27. This Court has further found from the impugned order that while assigning the reason that the nature of suit will change, if such amendment will be allowed, but how, the nature of suit will be changed, there is no reason to that effect. 28. There is no dispute about settled legal position that if the nature of suit will be changed, the amendment cannot be allowed. But the concerned court before whom such petition was filed, it was incumbent upon such Court to pass an order by specifying the reason that how the nature of suit will be changed, if the amendment will be allowed to be incorporated in the plaint. The said reason is lacking in the impugned order. 29. But the concerned court before whom such petition was filed, it was incumbent upon such Court to pass an order by specifying the reason that how the nature of suit will be changed, if the amendment will be allowed to be incorporated in the plaint. The said reason is lacking in the impugned order. 29. The law is well settled that in absence of any reason, the order cannot be said to be an order in the eye of law on the basis of the principle that the reason is the soul of the order and in absence of any reason, the order will be said to be not only suffer from an error but in absolute violation of principle of natural justice, reference in this regard may be made to the judgment rendered by the Hon’ble Apex Court in the case of Raj Kishore Jha Vrs. State of Bihar & Ors., reported in (2003) 11 SCC 519 , wherein, it has been held at paragraph-19 as under:- “… … …Reason is the heartbeat of every conclusion. Without the same, it becomes lifeless. … …” 30. Likewise, the Hon’ble Apex Court in the case of Kranti Associates (P) Ltd. & Anr. Vrs. Masood Ahmed Khan & Ors., reported in (2010) 9 SCC 496, wherein, at paragraph 47, it has been held as under:- “47. Summarising the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior courts. (e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or “rubber-stamp reasons” is not to be equated with a valid decision-making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor [(1987) 100 Harvard Law Review 731-37].) (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain [(1994) 19 EHRR 553] EHRR, at 562 para 29 and Anya v. University of Oxford [2001 EWCA Civ 405 (CA)] , wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, “adequate and intelligent reasons must be given for judicial decisions”. (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “due process”. 31. This Court, considering the aforesaid legal position and based upon the factual aspect as also the fact that the reason which has been assigned is not supported by any reason, hence, the impugned order needs to be interfered with. 32. But, before passing an order, it needs to refer herein the scope of Article 227 of the Constitution of India. 33. It is the settled position of law that the jurisdiction of the court exercising the jurisdiction, as conferred under Article 227 of the Constitution of India, is very least and the same can only be exercised if there is manifest error or the jurisdictional error, reference in this regard may be made to the judgment rendered by the Hon’ble Supreme Court in the case of Shalini Shyam Shetty Vrs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 wherein, the Hon’ble Supreme Court has laid down the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Hon’ble Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee, reported in AIR 1951 Calcutta 193, wherein, it has been laid down that Article 227 of the Constitution of India does not vest the High Court with limit less power which may be exercised at the court’s discretion to remove the hardship of particular decisions. The power of superintendence confers power of a known and well recognized character and should be exercised on those judicial principles which give it its character. In general words, the High Court’s power of superintendence is a power to keep the subordinate courts within the bounds of the authority, to see that they do what their duty requires and that they do it in a legal manner. i. The power of superintendence is not to be exercised unless there has been; (a) An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or (b) gross abuse of jurisdiction; or (c) an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals. ii. i. The power of superintendence is not to be exercised unless there has been; (a) An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or (b) gross abuse of jurisdiction; or (c) an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals. ii. Further, in the aforesaid judgment the Hon’ble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala Vrs. Phiroz N. Bhatena, reported in (1991) 3 SCC 141 , wherein it has been laid down that in exercise of jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the court or tribunal has come to. iii. The Hon’ble Apex Court has made it clear that except to this limited extent the High court has no jurisdiction to interfere with the finding of facts. iv. Further, the judgment rendered by the Hon’ble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice. v. It has been laid down at paragraph 47 of the aforesaid judgment that the jurisdiction under Article 227 is not original nor is it appellable. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Article 226 and 227 are separate and distinct and operate in different fields. Another distinction between these two jurisdictions is that under Article 226 the High Court normal annuls or quashes an order or proceedings but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. vi. It has further been laid down regarding the powers to be exercised by the High Court under Article 227 of the Constitution of India. vi. It has further been laid down regarding the powers to be exercised by the High Court under Article 227 of the Constitution of India. The High Court, in exercise of its jurisdiction of superintendence, can interfere in order only to keep the tribunals and courts subordinate to it within the bounds of its authority, in order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested with them and by not declining to exercise the jurisdiction which is vested in them. Apart from that, High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. vii. In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. 34. It is evident from the aforesaid judgments that the Court exercising the power under Article 227 of the Constitution of India is to see the error apparent on the face of the order and if any error is found on the face of it, the order impugned is to be interfered with in exercise of power conferred under Article 227 of the Constitution of India. 35. Here, in the facts of the case, particularly the impugned order, this Court, therefore, is of the view that in absence of reason, the impugned order suffers from an error. 36. Accordingly, the impugned order dated 27.06.2023 passed in T.S. No.127 of 2016 is hereby quashed and set aside. 37. The matter is remitted before the concerned court to pass order afresh in accordance with law. 38. With the aforesaid observation/direction, the instant petition stands disposed of.