{"id":41350,"date":"2009-07-20T00:00:00","date_gmt":"2009-07-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/karthikeyan-vs-r-vasanth-on-20-july-2009"},"modified":"2015-01-06T00:33:49","modified_gmt":"2015-01-05T19:03:49","slug":"karthikeyan-vs-r-vasanth-on-20-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/karthikeyan-vs-r-vasanth-on-20-july-2009","title":{"rendered":"Karthikeyan vs R.Vasanth on 20 July, 2009"},"content":{"rendered":"<div class=\"docsource_main\">Madras High Court<\/div>\n<div class=\"doc_title\">Karthikeyan vs R.Vasanth on 20 July, 2009<\/div>\n<pre>       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED:20\/07\/2009\n\nCORAM\nTHE HONOURABLE MR.JUSTICE G.M.AKBAR ALI\n\nC.M.A.(MD)No.276 of 2009\nand\nC.M.A.(MD)No.277 of 2009\nand\nM.P.(MD)Nos.1 and 2 of 2009 &amp;\nCaveat P.(MD)No.172 of 2009\nin\nC.M.A.(MD)No.276 of 2009\n\nKarthikeyan\t\t\t... Appellant in both the CMAs\n\nVs.\n\n1.R.Vasanth\n\t\t\t\t... \tRespondent in CMA.No.276\/2009<\/pre>\n<p>2.Kannan @ Rajendran<br \/>\n\t\t\t\t&#8230; \tRespondent in both the CMAs<\/p>\n<p>Prayer in C.M.A.No.276 of 2009<\/p>\n<p>Civil Miscellaneous Appeal filed under Order 43<br \/>\nRule 1(d) and Section 104 of CPC., to set aside the fair and decretal order<br \/>\npassed in I.A.No.63 of 2008 in O.S.No.40 of 2005 dated 17.09.2008 on the file of<br \/>\nthe Additional District Court (Fast Track Court), Thoothukudi.\n<\/p>\n<p>Prayer in C.M.A.No.277 of 2009<\/p>\n<p>Civil Miscellaneous Appeal filed under Order 43<br \/>\nRule 1(d) and Section 104 of CPC., to set aside the fair and decretal order<br \/>\npassed in I.A.No.64 of 2008 in O.S.No.48 of 2004 dated 17.09.2008 on the file of<br \/>\nthe Additional District Court (Fast Track Court), Thoothukudi.\n<\/p>\n<p>!For Petitioner   &#8230; Mr.M.Vallinayagam<br \/>\n^For Respondents  &#8230; Mr.V.Perumal for R1 and 2<\/p>\n<p>:COMMON JUDGMENT<br \/>\n\tThese civil miscellaneous appeals are arising out of the common order<br \/>\npassed in I.A.No.63 of 2008 in O.S.No.40 of 2005 and I.A.No.64 of 2008 in<br \/>\nO.S.No.48 of 2004, dated 17.09.2008, on the file of the Additional District<br \/>\nCourt (Fast Track Court), Thoothukudi.\n<\/p>\n<p>\t2.The facts of the case are as under:\n<\/p>\n<p>A suit in O.S.No.40 of 2005 has been filed by Kannan\/1st respondent herein<br \/>\nagainst his father Kannan @ Rajendran and Karthikeyan\/appellant herein before<br \/>\nthe Additional District Court(Fast Track Court), Thoothukudi for declaration of<br \/>\ntitle and for consequential relief of injunction restraining the 1st defendant<br \/>\nnot to alienate the suit property to the 2nd defendant.\n<\/p>\n<p>\t3.For convenience sake the plaintiff in O.S.No.40 of 2005 is referred as<br \/>\nplaintiff and the plaintiff in O.S.No.45 of 2004 who is the 2nd defendant in<br \/>\nO.S.No.40 of 2005 is referred as defendant\/appellant in these appeals.  A suit<br \/>\nin O.S.No.48 of 2004 has been filed by Karthikeyan\/appellant herein against<br \/>\nKannan @ Rajendran\/2nd respondent herein\/1st defendant in O.S.No.40 of 2005<br \/>\nbefore the learned Additional District Judge (Fast Track Court), Thoothukudi,<br \/>\nfor specific performance.\n<\/p>\n<p>\t4.The case of the plaintiff in O.S.No.40 of 2005 is that the suit property<br \/>\nabsolutely belongs to him.  As his father\/first defendant, who had no right in<br \/>\nthe suit property, had entered into a sale agreement with the 2nd defendant, he<br \/>\nhad filed and prayed for a declaration of title and injunction.  This suit was<br \/>\nresisted by the 2nd defendant.\n<\/p>\n<p>\t5.The 2nd defendant, who is the agreement holder, had filed O.S.No.48 of<br \/>\n2004, would state that he had entered into a sale agreement with the father of<br \/>\nthe plaintiff and had paid substantial amount of the sale price and was ready<br \/>\nand willing to perform his part of the contract.  However, this suit was filed<br \/>\nagainst the father of the plaintiff and the same was resisted by the sole<br \/>\ndefendant.\n<\/p>\n<p>\t6.Both the suits were taken up together and a joint trial was conducted.<br \/>\nThe evidence was recorded in O.S.No.40 of 2005 and documents were also marked<br \/>\nincluding the sale agreement with further endorsements. The plaintiff was<br \/>\nexamined as P.W.1 and one more witness was also examined as P.W.2.  The 1st<br \/>\ndefendant in O.S.No.40 of 2005, who is also the sole defendant in O.S.No.48 of<br \/>\n2004 was also examined as D.W.1 and was also cross-examined.\n<\/p>\n<p>\t7.After closing the evidence of the plaintiff and also the examination of<br \/>\nthe 1st defendant in O.S.No.40 of 2005 as D.W.1, the 2nd defendant in O.S.No.40<br \/>\nof 2005 and the plaintiff in O.S.No.48 of 2004 have filed an application in<br \/>\nI.A.No.6 of 2008, for appointment of an Advocate Commissioner and the same was<br \/>\ndismissed on 07.02.2008.  The appellant has filed an application in I.A.No.14 of<br \/>\n2008 to  re-open the case as the evidence on the side of the defendant was<br \/>\nclosed and the said application was allowed on 11.02.2008 and the matter was<br \/>\nadjourned from time to time for recording the evidence of the defendant.<br \/>\nFinally, it was posted on 03.04.2008.  Even, on that date also the appellant<br \/>\nherein was not present and hence, the evidence was closed and the matter was<br \/>\nposted for arguments on 08.04.2008.\n<\/p>\n<p>\t8.However, the dismissal of the Commission application in I.A.No.6 of 2008<br \/>\nwas challenged before this Court by filing a Civil Revision Petition and the<br \/>\nsame was allowed and again the evidence was re-opened and the matter was posted<br \/>\nfor defense evidence.  Again, the defendant was called absent on 23.06.2008  and<br \/>\nthe evidence was closed and the suit was posted for arguments on 25.06.2008.  On<br \/>\nthat date also, the defendant did not appear before the court and the counsel<br \/>\nstated &#8220;no instruction&#8221;.  Hence, the court below heard the matter and pronounced<br \/>\na common judgment on 02.07.2008, by allowing the suit in O.S.No.40 of 2005 and<br \/>\ndismissing the suit in O.S.No.48 of 2004.\n<\/p>\n<p>\t9.The 2nd defendant, who is the agreement-holder had filed two petitions<br \/>\nchallenging the judgment and decree in O.S.No.40 of 2005 and O.S.No.48 of 2004,<br \/>\non the file of the Additional District Court(Fast Track Court), Thoothukudi,<br \/>\nunder Order 9 Rule 13 of C.P.C. to set aside the ex-parte decree and to re-open<br \/>\nthe case.  The case of the appellant is that he could not appear before the<br \/>\ncourt below when the matter was posted for evidence and  therefore, he has not<br \/>\nadduced any evidence and hence, the court below had passed an ex-parte decree.\n<\/p>\n<p>\t10.These two petitions were resisted by the plaintiff\/respondent.  After<br \/>\nelaborate enquiry, the trial court has held that the court had proceeded under<br \/>\nOrder 17 Rule 2 of C.P.C. as a substantial portion of evidence had already been<br \/>\nrecorded and therefore, the decree passed on 02.07.2008 is a decree on merits<br \/>\nand not an ex-parte decree.  Aggrieved by the above finding of the trial court,<br \/>\nthe defendant in O.S.No.40 of 2005, who is the plaintiff in O.S.No.48 of 2005,<br \/>\nhas preferred these Civil Miscellaneous Appeals on the ground that the decree<br \/>\npassed on 02.07.2008 is an ex-parte decree and not a decree on merits.\n<\/p>\n<p>\t11.The only legal point to be considered in these appeals are whether the<br \/>\njudgment and decree dated 02.07.2008 is passed a decree on merits under Order 17<br \/>\nRule 2 or an ex-parte decree?\n<\/p>\n<p>\t12.The learned counsel for the appellant would submit that the court below<br \/>\nis wrong in holding that the substantial evidence on the part of the defendant<br \/>\nwas adduced, whereas, the defendant was not even examined before the Court and<br \/>\neven though he had shown genuine and sufficient reasons for his non-appearance<br \/>\non 25.06.2008 and the court had simply closed the evidence and therefore, it<br \/>\ncould be treated only as ex-parte decree and for that the learned counsel for<br \/>\nthe appellant relied upon the following judgments:-\n<\/p>\n<p>AIR 2003 SC 3527 (B.Janakiramaiah Chetty Vs. A.K.Parthasarathi and others) and<br \/>\n2005(4) CTC 451 (T.Kalyanasundaram Vs. M.S.Arumuganayakar).\n<\/p>\n<p>\t13.The learned counsel for the respondent would submit in spite of several<br \/>\nopportunities given to the defendant to adduce evidence, the defendant had<br \/>\nfailed to appear before the court below and the court below has rightly closed<br \/>\nthe evidence and heard the arguments and delivered the judgment. Therefore, the<br \/>\nlearned counsel would submit that the court below has passed the judgment and<br \/>\ndecree only on merits and it is not an ex-parte decree.\n<\/p>\n<p>\t14.Before deciding this issue, it is pertinent to note that the<br \/>\nconsequences of events.  Earlier a suit in O.S.No.48 of 2004 has been filed by<br \/>\nthe defendant, who is the appellant herein against the sole defendant for<br \/>\nspecific performance of the sale agreement.  A suit in O.S.No.40 of 2005 has<br \/>\nbeen filed for declaration of title and injunction by the son of the executant<br \/>\nof the sale agreement.  However, both the suits were tried together and evidence<br \/>\nwas adduced and witnesses were examined and documents were also marked.  The<br \/>\nfirst defendant in O.S.No.40 of 2005, who is the sole defendant in O.S.No.48 of<br \/>\n2004 was also examined as D.W.1 and he was also  cross-examined.  It is also<br \/>\npertinent to note that he was cross-examined by the agreement-holder and the<br \/>\nsale agreement with endorsements were also marked.  The plaintiff&#8217;s evidence was<br \/>\nclosed on 18.12.2007 and thereafter, the defendant filed an application for<br \/>\nappointment of an Advocate Commissioner, which was dismissed on 07.02.2008 and<br \/>\nthe defendant&#8217;s side evidence was also closed and afterwards, an application to<br \/>\nre-open the case was filed, which was allowed on 11.02.2008.  Finally, the<br \/>\nmatter was adjourned for several times for adducing the defendant&#8217;s side<br \/>\nevidence and posted finally on 03.04.2008.  As he has not come forward to adduce<br \/>\nevidence, the evidence was closed and the matter was posted for arguments on<br \/>\n08.04.2008.\n<\/p>\n<p>\t15.Since the Commission application was allowed by this Court in revision,<br \/>\nthe defendant filed an application to re-open the evidence,  which was also<br \/>\nallowed on 23.06.2008, for adducing evidence and again it was also closed for<br \/>\nthe non-appearance of the defendant and the matter was posted for arguments on<br \/>\n25.06.2008.  On that date, the learned counsel for the defendant endorsed &#8220;no<br \/>\ninstruction&#8221; and the matter was heard and judgment was delivered on 02.07.2008.<br \/>\nThis shows that the court below had given ample opportunities to the defendant<br \/>\nto adduce his evidence.  However, it is to be seen that whether the court below<br \/>\nhad proceeded under Order 17 Rule 2 or passed an ex-parte decree?\n<\/p>\n<p>\tOrder 17 Rule 2 reads as follows:\n<\/p>\n<p>&#8220;(2)Procedure if parties fail to appear on day fixed.  Where, on any day to<br \/>\nwhich the hearing of the suit is adjourned, the parties or any of them fail to<br \/>\nappear, the Court may proceed to dispose of the suit in one of the modes<br \/>\ndirected in that behalf of Order IX or make such order as it thinks fit.\n<\/p>\n<p>Explanation: Where the evidence of a substantial portion of the evidence of any<br \/>\nparty has already been recorded and such party fails to appear on any day to<br \/>\nwhich the hearing of the suit is adjourned, the Court may, in its discretion,<br \/>\nproceed with the case as if such party were present.\n<\/p>\n<p>(3)Court may proceed notwithstanding either party fails to produce evidence<br \/>\netc.-Where any party to a suit to whom time has been granted fails to produce<br \/>\nhis evidence, or to cause the attendance of his witnesses, or to perform any<br \/>\nother act necessary to the further progress of the suit, for which, time has<br \/>\nbeen allowed, the Court may, notwithstanding such default.-\n<\/p>\n<p>\t(a)if the parties are present proceed to decide the suit forthwith; or\n<\/p>\n<p>\t(b)if the parties are, or any of them is, absent, proceed under rule 2.&#8221;\n<\/p>\n<p>\t16.In a judgment reported in AIR 2003 SC 3527, the Apex Court has held as<br \/>\nfollows:-\n<\/p>\n<p>\t&#8220;8.In order to determine whether the remedy under Order IX is lost or not<br \/>\nwhat is necessary to be seen is whether in the first instance the Court had<br \/>\nresorted to the Explanation of Rule 2.\n<\/p>\n<p>\t9.The Explanation permits the Court in its discretion to proceed with a<br \/>\ncase where substantial portion of evidence of any party has already been<br \/>\nrecorded and such party fails to appear on any day to which the hearing of the<br \/>\nsuit is adjourned.  As the provision itself shows, discretionary power given to<br \/>\nthe Court to be exercised in a given circumstances.  For application of the<br \/>\nprovision, the Court has to satisfy itself that (a)substantial portion of the<br \/>\nevidence of any party has been already recorded: (b)such party has failed to<br \/>\nappear on any day and (c)the day is one to which the hearing of the suit is<br \/>\nadjourned.  Rule 2 permits the Court to adopt any of the modes provided in Order<br \/>\nIX or to make such order as he thinks fit when on any day to which the hearing<br \/>\nof the suit is adjourned, the parties or any of them fail to appear.  The<br \/>\nExplanation is in the nature of an exception to the general power given under<br \/>\nthe rule, conferring discretion on the court to act under the specified<br \/>\ncircumstance i.e.where evidence or a substantial portion of evidence of any<br \/>\nparty has been already recorded and such party fails to appear on the date to<br \/>\nwhich hearing of the suit has been adjourned.  If such is the factual situation,<br \/>\nthe Court may in its discretion deem as if such party was present.&#8221;\n<\/p>\n<p>\t17.In yet another judgment of the Division Bench of this Court reported in<br \/>\n2005(4) CTC 451, it has held as follows:\n<\/p>\n<p>&#8220;6.The Honourable Supreme Court of India in the judgment referred to earlier<br \/>\nwhile interpreting Order 17 Rules 2 and 3 had laid down the Law as hereunder:<br \/>\n\t&#8220;In Rule 2, the expression used is &#8220;make such order as it deems fit&#8221;, as<br \/>\nan alternative to adopting one of the modes directed in that behalf by Order 9.<br \/>\nUnder Order 17, Rule 3(b) only course open to the Court is to proceed under rule<br \/>\n2, when a party is absent.  Explanation thereto gives a discretion to the Court<br \/>\nto proceed under Rule 3 even if a party is absent.  But such a course can be<br \/>\nadopted only when the absentee party has already led evidence on a substantial<br \/>\npart thereof.  If the position is not so, the Court has no option but to proceed<br \/>\nas provided in Rule 2. Rule 2 and 3 operate in different and distinct sets of<br \/>\ncircumstances.  Rule 2 applies when an adjournment has been generally granted<br \/>\nand not for any special purpose.  On the other hand, Rule 3 operates where the<br \/>\nadjournment has been given for one of the purposes mentioned in the Rule.  While<br \/>\nRule 2 speaks of disposal of the suit in one of the specified modes, Rule 3<br \/>\nempowers the Court to decide the suit forthwith.  The basic distinction between<br \/>\nthe two Rules, however, is that in the former, any party has failed to appear at<br \/>\nthe hearing, while in the latter the party though present has committed any one<br \/>\nor more of the enumerated defaults.  Combined effect of the Explanation to Rule<br \/>\n2 and Rule 3 is that a discretion has been conferred on the Court.  The power<br \/>\nconferred is permissive and not mandatory.  The Explanation is in the nature of<br \/>\na deeming provision, when under given circumstances, the absentee party is<br \/>\ndeemed to be present.\n<\/p>\n<p>The crucial expression in the Explanation is &#8220;where the evidence or a<br \/>\nsubstantial portion of the evidence of a party&#8221;.  There is a positive purpose in<br \/>\nthis legislative expression.  It obviously means that the evidence on record is<br \/>\nsufficient to substantiate the absentee party&#8217;s stand and for disposal of the<br \/>\nsuit.  The absentee party is deemed to be present for this obvious purpose.  The<br \/>\nCourt while acting under the Explanation may proceed with the case if that prima<br \/>\nfacie is the position.  The Court has to be satisfied on the facts of each case<br \/>\nabout this requisite aspect.  It would be also imperative for the Court to<br \/>\nrecord its satisfaction in that perspective.  It cannot be said that the<br \/>\nrequirement of substantial portion of the evidence or the evidence having been<br \/>\nled for applying the Explanation is without any purpose.  If the evidence on<br \/>\nrecord is sufficient for disposal of the suit, there is no need for adjourning<br \/>\nthe suit or deferring the decision.  This clearly has imprints of an ex parte<br \/>\nadjudication and not of a decision on merits.  There is not even any indication<br \/>\nas to what evidence was evaluated and\/or whether the merits were tested.&#8221;<br \/>\nFrom the above, it is clear that Law laid down by the Supreme Court in the above<br \/>\nreferred to judgment is binding on us.&#8221;\n<\/p>\n<p>This is a case where P.W.1 to 5 have been examined in chief and the defendant<br \/>\ndid not cross-examine the witnesses, the plaintiff&#8217;s side witness was closed and<br \/>\nthe suit stood adjourned for defense.  Even thereafter, the defendant did not<br \/>\ntake part and the decree was passed.\n<\/p>\n<p>\t18.In a decision in  (Janakiramaiah Chetty Vs. Parthasarathi) reported in<br \/>\n2003(2)CTC 242, the Supreme Court has laid down the scope of Order 17 Rule 2 as<br \/>\n&#8220;The Trial Court in this case had no jurisdiction to pass a decree on merits and<br \/>\nit ought to have disposed of the suit only in terms of Order 17 Rule 2 without<br \/>\nthe aid of the Explanation to the said sub rule.  In the light of our decision,<br \/>\nnamely, the decree dated 13.10.2003 would only be an ex parte decree and not a<br \/>\ndecree on merits, we have no other go except to hold that the application under<br \/>\nOrder 9 Rule 13 filed by the defendant is maintainable.&#8221;\n<\/p>\n<p>\t19.In the light of the above referred rulings of the Supreme Court, it is<br \/>\nnecessary to see whether the trial Court satisfied itself that:\n<\/p>\n<p>a)a substantial portion of evidence of any party has already been adduced and\n<\/p>\n<p>b)the said party failed to appear on any day to which the hearing of the suit is<br \/>\nadjourned<br \/>\nIf the above points are answered affirmatively, then the Court may proceed with<br \/>\nthe case as if such party was present.\n<\/p>\n<p>Therefore, whenever the court proceeds under Order 17 Rule 2 of C.P.C.,the above<br \/>\nsaid conditions are to be looked into by the trial Court.\n<\/p>\n<p>\t20.In the instant case, the suits are one for declaration of title and for<br \/>\nconsequential relief of injunction and the other suit is for specific<br \/>\nperformance of a contract and the appellant had adduced substantial portion of<br \/>\nevidence by cross-examining the plaintiff and the executant of the sale<br \/>\nagreement and he had failed to appear on the day to which the hearing of the<br \/>\nsuit was adjourned and the court had proceeded with the case, as if such party<br \/>\nwas present.\n<\/p>\n<p>\t21.Therefore, in order to determine whether the judgment and decree was<br \/>\npassed under Order 17 Rule 2 as a decree on merit or an ex-parte decree, it is<br \/>\nessential to satisfy the above two conditions viz., whether a)a substantial<br \/>\nportion of evidence of any party has already been adduced and b)whether said<br \/>\nparty failed to appear on any day to which the hearing of the suit is adjourned.\n<\/p>\n<p>\t22.Whenever, the Court proceeds under Order 17 Rule 2 and 3 of C.P.C., the<br \/>\ntrial court should satisfy itself on the above said two conditions.  It is also<br \/>\nadvisable that the court may record its reason for proceeding under Order 17<br \/>\nRule 2 or 3 whichever is applicable to avoid misconception by the parties.\n<\/p>\n<p>\t23.As per the records, it is clear that the case was posted on 23.06.2008,<br \/>\nfor further evidence of the defendant and since he has not appeared and the<br \/>\nevidence was again closed and the case was posted on 25.06.2008 for arguments.<br \/>\nOn that day also, the learned counsel for the defendant reported &#8220;no<br \/>\ninstruction&#8221; and after hearing the arguments, the judgment was delivered on<br \/>\n02.07.2008.  Therefore, it is a decree on merits and not a decree on ex-parte.<br \/>\nThe court below had rightly dismissed the applications filed under Order 9 Rule<br \/>\n13, therefore, I have no reason to interfere.\n<\/p>\n<p>\t24.In view of the above, the common judgment and decree, dated 02.07.2008<br \/>\nin I.A.No.63 of 2008 in O.S.No.40 of 2005 and I.A.No.64 of 2008 in O.S.No.48 of<br \/>\n2004 are confirmed. Hence, the Civil Miscellaneous Appeals fail and the same are<br \/>\ndismissed.\n<\/p>\n<p>nbj<\/p>\n<p>To<\/p>\n<p>The Additional District Court<br \/>\n(Fast Track Court),<br \/>\nThoothukudi.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Madras High Court Karthikeyan vs R.Vasanth on 20 July, 2009 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:20\/07\/2009 CORAM THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI C.M.A.(MD)No.276 of 2009 and C.M.A.(MD)No.277 of 2009 and M.P.(MD)Nos.1 and 2 of 2009 &amp; Caveat P.(MD)No.172 of 2009 in C.M.A.(MD)No.276 of 2009 Karthikeyan &#8230; Appellant in both the CMAs Vs. [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-41350","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Karthikeyan vs R.Vasanth on 20 July, 2009 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/karthikeyan-vs-r-vasanth-on-20-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Karthikeyan vs R.Vasanth on 20 July, 2009 - Free Judgements of Supreme Court &amp; 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