Applicability of Section 100 CPC for Second Appeals in the Punjab and Haryana High Court
Avnish Mittal, Advocate
Punjab & Haryana High Court, Chandigarh
Email Id : email@example.com
Date : 25/05/2020 - Location : Office cum Residence: House No. 115, Sector 16-A, Chandigarh, Phone No. 9872000579
Applicability of Section 100 CPC for Second Appeals in the Punjab and Haryana High CourtA decision of a civil suit culminates into a decree and the party in whose favour suit is decided, becomes the decree holder and the opposite party, against whom the suit is decided becomes the Judgement Debtor. A decree passed by the court of first instance, (popularly called trial court), is subject to appeal under the provisions of section 96 of code of civil procedure, before the first appellate court, and any decision thereof can further be challenged by either of the affected parties by filing a second appeal before the High Court. The Second Appeal challenging the judgement and decree of the first appellate court can be filed before the High Court, under section 100 of the Code of Civil Procedure 1908 (CPC). However, prior to the amendment in the CPC in the year, vide Act 104 of 1976, w.e.f. 1.2.1977, the unamended provisions of Section 100 read as under:
100 (1). Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to a High Court on any of the following grounds, namely:
(a) the decision being contrary to law or to some usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.
(2) An appeal may lie under this Section from an appellate decree passed ex parte.At this stage it would be pertinent to trace the history of judicial administration in the erstwhile State of Punjab. By the Punjab Courts Act, XIX of 1865, inter alia, seven classes of Courts were brought into being in the civil Jurisdiction. Starting from the Court of Tehsildar at the bottom to the Court of the Judicial Commissioner at the top In 1877, the Punjab Courts Act, (XIX OF 1865) AND The Chief Court Act (IV of 1866), were repealed by the Punjab courts Act, (XVII of 1877), which consolidated and re-stated the law inter alia relating to the Chief Court. The Punjab Courts Act, XVIII of 1884, which repealed the Punjab courts Act of 1877, not only touched the question of subordinate courts, their reconstruction, jurisdiction and powers, but also modified and restated the law regarding the constitution, powers and jurisdiction of the Chief Courts as well. Further changes in the subordinate judicial set up were brought by the Punjab Courts Act, 1914; where under four classes of courts were set up, namely, the Court of District Judge, the Court of Additional district Judge, the Court of Subordinate Judge and the Court of Munsif. Later through the Punjab Courts Act, 1918, a landmark, which continued with minor amendment as the court of Munsif was abolished. In addition to these courts, Courts of Small Causes were established under the Provincial Small Causes Courts Act. Section 18 of The Punjab Courts Act, (as amended from time to time), provided for creation of a hierarchy of civil courts in the State of Punjab, as follows:
18. Classes of Courts.- Besides the Courts of Small Causes established under the Provincial Small Cause Courts Act, 1887, and the Courts established under any other enactment for the time being in force, there shall be the following classes of Civil Courts, namely: -
(1) The Court of District Judge;
(2) The Court of Additional District Judge;
(3) The Court of Civil Judge (Senior Division); and
(4) The Court of Civil Judge (Junior Division).This Act further lays down the pecuniary jurisdiction and consequential powers of the aforesaid various courts, including their appellate powers. Whereas, Section 39 provides for a first appeal from an original decree, a Second Appeal from such first appellate decree lies before the High Court, under Section 41 of the Punjab Courts Act, 1918. Section 41 of the Punjab Courts Act 1918 reads as under: -
Second Appeals-(1) An appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court on any of the following grounds, namely:
(a) the decision being contrary to law or to some custom or usage having the force of law;
(b) the decision having failed to determine some material issue of law or custom or usage having the force of law;
(c) a substantial error or defect in the procedure provided by the Code of Civil Procedure 1908 [V of 1908], or by any other law for the time being in force which may possibly have produced error or defect in the decision of the case upon the merits;
(2) An appeal may lie under this section from an appellate decree passed ex parte.A bare comparison of the above two provisions would clearly show that they were in pari maetria to each other. However, the Appeals in the State of Punjab were always filed under the provisions of The Punjab Courts Act, 1918, being the law-generis, for the creation of Courts and defining their respective jurisdiction. In these circumstances, the Second Appeals also were filed in the Punjab and Haryana High Court under section 41 of the Punjab Courts Act. Vide an Amending Act No. 104 0f 1976, coming in force with effect from 1.2.1977, various amendments in CPC were carried out. Consequently, Section 100, thereof, also went through substantial changes. The Amended Section 100 of CPC provides:
"100. Second appeal.-(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."Thus, under the aforesaid amended provisions of section 100 CPC, the scope of a Second Appeal was confined to a second appeal involving a Substantial Question of Law, and only as per the procedure laid down in the said provision. Apparently, after the amendment of the CPC, there was a huge difference in the scope of interference in a Second Appeal, filed under the provisions of section 41 of the Punjab courts act 1918, and that filed under amended Section 100 of CPC, a question arose as to whether the second appeal in the Punjab and Haryana Court, was to be continued to be filed under the Punjab Courts Act or was now required to be filed under the amended provisions of Section 100 CPC. The said question was referred to a full bench of the Punjab and Haryana High Court in Ganpat v. Smt. Ram Devi and others 1978 AIR (Punjab) 137 FB. It would be advantageous to quote in extenso from the said judgement, as follows: -
"The two significant questions succinctly formulated in the Reference Order, which call for determination by this Full Bench are in the following terms: -
1. Has the amended section 100 of the Code in any way affected the provisions of section 41(1) of the Punjab Courts Act?
2. What interpretation is to be placed on the phrase 'substantial question of law' occurring in amended Section 100 of the Civil Procedure Code?
2. It is evident from the above that the issues aforesaid are pristine legal ones, and, therefore, any reference to the facts of the case is, indeed, unnecessary. It suffices to mention that they arise at the very threshold at the stage of the admission of innumerable Regular Second Appeals in this Court in view of the radical amendments introduced in section 100 by the Civil Procedure (Amendment) Act, 1976.
3. At the very outset it may be pointed out that we would first devote ourselves to question No. 1 because it is plain that if an answer is returned to the said question in the negative, the second question perhaps would hardly arise or in any case would become academic in nature."
"23. From the aforesaid discussion, it is thus evident that on the principle, on the specific language of the statutory provisions involved, and the overwhelming weight of authority, it must be held that the provisions of section 41 of the Punjab Courts Act are in no way affected or curtailed by the amended Section 100 of the Civil Procedure Code. Therefore, in the jurisdiction, to which the Punjab Courts Act extends the admission and adjudication of second appeals would be governed by section 41 of the Act to the exclusion of the general provisions of section 100 of the Code. The answer to the first question is, therefore, returned in the negative.
24. Though we have arrived at the aforesaid inevitable conclusion in view of the existing statutory provisions, we are of the view that in the interests of the uniformity of law on the point, the corresponding provisions of section 41 now might as well be in line with the amended provisions of section 100. It would be obviously wasteful for us to elaborate our reason therefore because this matter has been exhaustively considered and illuminatingly presented by the Law Commission in its fifty-fourth Report. A reference to pages 74 to 93 of the said report is indeed instructive on the point and we entirely agree with the same. Reference may also be made to the statements of objects and reasons for the Civil Procedure Code (Amendment) Bill, 1974 and the notes to clause 39 thereof pertaining to the amendment of section 100 of the Code. This matter was again considered by the Parliamentary Select Committee and it was thereafter that the amendment to section 100 was passed by Parliament and the present section 100 was enacted. It deserves recalling that earlier the provisions of the unamended section 100 and section 41 of the Punjab Courts Act were virtually in pari materia and there appears hardly any reason why it should not continue to be so. We are, therefore, of the view that the matter deserves the consideration of both the State Governments of Punjab and Haryana for such legislative action as they may deem necessary. In the alternative it is also for the Central Government to consider whether the amended section 100 may not hold unrivalled sway all over the country irrespective of any existing local or special statutes to the contrary. Copies of this judgment be forwarded to the three Governments for their consideration.
25. Adverting now to question No. 2, it is obvious that the phrase 'substantial question of law' has been introduced by the amending Act, 1976 in section 100 of the Code. As we have held above, the provisions of this section are now excluded by virtue of the special provision of section 41 of the Punjab Courts Act. Within this jurisdiction, therefore, this question becomes entirely academic in nature. It is the settled practice of the superior Courts not to examine and decide issues which do not directly affect the rights of the litigants before them. We, therefore, decline to go into this question."Thus, it was clearly held that the special legislation in the form of Punjab Courts Act, 1918, shall prevail over the general provisions of Section 100 CPC, and thus the scope of second appeals was subject to the provisions of section 41 of the Punjab courts Act 1918, and as a result the Second Appeals in the High Court of Punjab and Haryana were/are filed and entertained under Section 41 of the Punjab Courts Act, 1918. With the passage of time, the said question yet again arose before the Supreme Court of India in Kulwant Kaur v. Gurdial Singh Mann (dead) by Lrs 2001 AIR (SC) 1273, wherein it was held that:
"10. Needless to record here that prior to the Amendment Act of 1976, through which the amendment to Section 100 was brought in the statute book, the question of Section 100 being inconsistent with Section 41 of the Punjab Act did not arise, since the Punjab Act is in consonance with unamended Section 100 without there being any differentiation and are compatible to each other being pari materia. Since the relevant statutory provisions have already been noticed herein before in this judgment, we need not recapitulate the same, and suffice however, to notice what stands noticed already. The situation, however, stands differently on the incorporation of the amendment to Section 100. With the amendment, the power to entertain a Second Appeal by the High Court stands restricted only on such occasions when the High Court is otherwise satisfied about the involvement of a substantial question of law. The addition of this new concept of substantial question was not available in the Civil Procedure Code prior to the amendment or in the Punjab Act. What however is a substantial question we need not go into the same neither we are called upon to note in extenso the true purport of the expression. The issue stands concluded since the decision in Chunilal's case [Sir Chunilal v. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 Supreme Court 1314] and subsequently in the decision of this Court in Pankaj Bhargava's case [Pankaj Bhargava and another v. Mohinder Nath and another, 1991(1) RCR(Rent) 96 (SC) : 1991(1) SCC 556]. We are concerned with a much narrower issue as to whether the two Acts can be termed to be inconsistent with teach other as stated by the Punjab Full Bench (supra). The learned Advocate for the Respondents responded in the negative by placing reliance upon amended Section 100 and in particular the saving part of Section 100(1) which according to the submission saves the Punjab statute. The same, however, needs to be delved into in some detail. With reference to this submission, i.e. the saving provision, intention of the legislature seems to be that any other law for the time being in force (e.g. Punjab Act) shall stand saved - This in short is the case made out for the respondents. As a matter of fact, the respondents reiterated the reasonings as adopted by the Punjab Full Bench and contended that by reason of the express saving, question of Punjab Act being declared repugnant to the Section 100 does not and cannot arise. The respondents contended that the manifestation in the earlier Section 100 so far as protection of State Law is concerned is still maintained and there is identity with such manifestation in the pre amended and post amended Section 100 of the Civil Procedure Code and in this context reference to Section 4 of the Code under which special or local law even special form of procedural law stands saved. A look at section 4 of the Code would thus be relevant and the same reads as below: -
"4. (1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.
(2) In particular and without prejudice to the generality of the proposition contained in sub-section (1), nothing in this Code shall be deemed to limit to otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land."
"17. Let us examine to what extent Section 4 or language of Section 100 saves the special or local law after coming into force of the aforesaid 1976 amendment. Section 4(1) of the Code records:
"In the absence of any specific provision to the contrary, nothing in the Code shall be deemed to limit or otherwise affect any special or local law now in force...."
18. By this, special or local laws are protected and thus not to be effective in the absence of any specific provision to the contrary. In other words, special or local laws would be functional till any specific provision to the contrary stand engrafted. Since Section 100 Civil Procedure Code unamended was in pari materia with Section 41 of the Punjab Act, there was no conflict and Section 41 continued in its field unaffected. This is reinforced by the language of unamended Section 100 C.P. Code viz:
"Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force...."
19. Thus the wording of this Section 100 qualified Section 41 Punjab Act to be the "other law for the time being in force," as its Section 41 expressly provided second appeal as Section 100 provides. So, thus for Section 41 of Punjab Act held its field.
20. Now we proceed to examine Section 97(1) of the Amending Act and the amendment of Section 100 Civil Procedure Code by the said 1976 Act. Through this amendment right to Second Appeal further restricted only to lie whether, "the case involves a substantial question of law." This introduction definitely is in conflict with Section 41 of the Punjab Act which was pari materia with unamended Section 100 Civil Procedure Code. Thus, so long there was no specific proviso to the contrary in this Code Section 4 Civil Procedure Code saved special or local law. But after it comes in conflict Section 4 Civil Procedure Code would not save, on the contrary its language implied would makes such special or local law applicable. We may examine now the submission for the respondent based on language of Section 100(1) Civil Procedure Code even after the said amendment. The reliance is on the following words:
"...Save as otherwise expressly provided... by any other law for the time being in force....."
These words existed even prior to the amendment and is unaffected by the amendment. Thus, so far it could legitimately be submitted that, reading this part of the Section in isolation it saves the local law. But his has to be read with Section 97(1) of the Amending Act, which reads;
"any amendment made, or any provision inserted in the principal Act by a State Legislature before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provision of the principal Ac as amended by this Act, stands repealed." (Noticed again for convenience).
21. This clearly reveals true intent of the legislature viz., any provision of the State Legislature existing prior to the amending Act which becomes in consistence to this amending Act is in consonance with both sub-clause (1) and proviso to sub-clause (2) of Article 254 of the Constitution of India. Thus, language of Section 97(1) of the Amending Act clearly spells out that any local law inconsistent goes but what is not in consistence, it could be said the local (law) would still continue to occupy its field.
22. But so far, the present case Section 41 of the Punjab Act, it is expressly in conflict with the amending law, viz., Section 100 amended which would be deemed to have been repealed. Thus, we have no hesitation to hold the law declared by the Full Bench of the High Court in the case of Ganpat (supra) cannot be sustained and is overruled."Thus, it is apparent that the Supreme Court expressly overruled the ratio laid down by Punjab and Haryana High Court in Ganpat's case (supra). As a consequence of this judgement, the second appeal could only be entertained and interfered by the Punjab and Haryana High Court, if it fell under the limited parameters of section 100 CPC. In the meantime, the High Court, with a view to impart real justice, continued to define liberally the phrase "Substantial Question of Law". Many a judicial decision were rendered wherein a conclusion arrived at on the basis of misreading and non reading of evidence, and even perversity was also held as one of the substantial questions of law. But as matter of fact, the real scope of interference in a second appeal in the light of provisions of Section 100 CPVC remained very limited. The issue with regard to the ratio in Kulwant Kaur's case supra was again analysed by the Constitutional Bench of the Supreme Court in Pankajakshi (Dead) v. Chandrika (SC) (Constitution Bench) 2016 (2) RCR (Civil) 245 whereby the question dealt by the Supreme Court was: -
"9. That apart, the question whether in an appeal arising out of an order passed by the High Court to which section 98(2) of the CPC applies, this Court can in exercise of its power under Article 136 of the Constitution direct the matter to be placed before a third Judge to resolve the conflict arising from two differing judgments, has not been examined either in P.V.Hemalatha's or Tej Kaur's case. We, therefore, consider it appropriate to refer to a larger Bench for consideration and an authoritative pronouncement the following two questions:
(1) Whether Section 23 of the Travancore-Cochin Act remains unaffected by the repealing provisions of Section 9 of the Kerala High Court Act. If so, whether Section 23 is in the nature of a special provision vis-a-vis section 98(2) of CPC.
(2) Whether this Court can under Articles 136 and 142 of the Constitution direct in any appropriate case a reference to a third judge to resolve the conflict arising between two judges of the High Court hearing an appeal, on a question of fact."
3. The 3-Judge Bench in turn referred the matter to a 5-Judge Bench as follows: -
"In the reference order, the 2-Judge Bench has doubted the correctness of the decision of this Court in P.V. Hemalatha v. Kattamkandi Puthiya Maliackal Saheeda and Anr. Since the decision has been given by a 3-Judge Bench in P.V. Hemalatha, we are of the view that correctness of the decision in P.V. Hemalatha has to be considered by a Bench of 5 Judges.
2. The matter is, accordingly, referred to a Bench of 5 Judges.
3. The matter may be placed before the Chief Justice for appropriate administrative order in this regard"
"24. Shri Viswanathan also relied upon a Division Bench judgment of this Court in Kulwant Kaur and Others v. Gurdial Singh Mann (dead) by LRS and Others, 2001(2) R.C.R.(Civil) 277 : (2001) 4 SCC 262, to submit that this decision is an authority for the proposition that there is no need to expressly refer to a local law when the legislative intent to repeal local laws inconsistent with the Code of Civil Procedure is otherwise clear.........................................."
"25. We are afraid that this judgment does not state the law correctly on both propositions. First and foremost, when section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 speaks of any amendment made or any provision inserted in the principal Act by virtue of a State Legislature or a High Court, the said Section refers only to amendments made and/or provisions inserted in the Code of Civil Procedure itself and not elsewhere. This is clear from the expression "principal Act" occurring in Section 97(1). What Section 97(1) really does is to state that where a State Legislature makes an amendment in the Code of Civil Procedure, which amendment will apply only within the four corners of the State, being made under Entry 13 of List III of the 7th Schedule to the Constitution of India, such amendment shall stand repealed if it is inconsistent with the provisions of the principal Act as amended by the Parliamentary enactment contained in the 1976 amendment to the Code of Civil Procedure. This is further made clear by the reference in Section 97(1) to a High Court. The expression "any provision inserted in the principal Act" by a High Court has reference to Section 122 of the Code of Civil Procedure by which High Courts may make rules regulating their own procedure, and the procedure of civil courts subject to their superintendence, and may by such rules annul, alter, or add to any of the rules contained in the first schedule to the Code of Civil Procedure................"
26. Thus, Kulwant Kaur's decision on the application of section 97(1) of the Code of Civil Procedure Amendment Act, is not correct in law." (Emphasis Supplied by the writer)Thus, the present situation remains that after the Constitutional Bench overruled the judgement in Kulwant Kaur's Case, the position in the Punjab and Haryana High Court was restored back to the law laid down in Ganpat's Full Bench Supra. It was held in Jal Singh and another v. Chunni Lal and others 2019 (1) RCR (Civil) 210 that:
"No doubt, this Court, on earlier occasions had been framing the substantial questions of law while deciding the appeals but in view of the ratio decidendi culled out by five learned Judges of the Hon'ble Supreme Court in Pankajakshi (dead) through LRs and others v. Chandrika and others 2016(2) R.C.R.(Civil) 245 : AIR 2016 SC 1213, wherein the proposition arose as to whether in view of the provisions of section 97(1) CPC, provisions of Section 41 of the Punjab Courts Act, 1918 would apply or the appeal i.e. RSA would be filed under section 100 of Code of Civil Procedure and decision thereof could be without framing the substantial questions of law. The Constitutional Bench of Hon'ble Supreme Court held that the decision in Kulwant Kaur and others v. Gurdial Singh Mann (dead) by LRs and others 2001(2) R.C.R.(Civil) 277 : 2001(4) SCC 262 on applicability of section 97(1) of CPC is not a correct law, in essence, the provisions of Section 41 of the Punjab Courts Act, 1918 had been restored back."That in the meantime, many conflicting judgements were passed whereby certain matters were remanded back by the Supreme Court on account of non-framing of substantial questions of law. However, in Kirodi (Since Deceased) through his Lr. v. Ram Parkash & Ors. 2019 (3) RCR (Civil) 168, clarifying the position in Punjab and Haryana High Court, in the light of the Constitutional Bench judgement, it was held by the Supreme Court:
"6. We are elucidating the position which emerges from the Constitution Bench Judgment to put the controversy at rest.
7. It is no doubt true that by virtue of section 97 of the Code of Civil Procedure (Amendment) Act, 1976 (hereinafter referred to as the 'Amendment Act') and section 100 of the Code of Civil Procedure, 1976 (hereinafter referred to as the 'Code') was amended requiring the second appeal to mandatorily contain a substantial question of law considering the same.
8. It was initially held in Kulwant Kaur & Ors. v. Gurdial Singh Mann (Dead) by Lrs. Ors., 2001(2) R.C.R.(Civil) 277 : (2001) 4 SCC 262 case that Section 100 of the Code would take precedence over Section 41 of the Punjab Courts Act, 1918 (hereinafter referred to as the 'Punjab Act') which conspicuously does not require the framing of such a substantial question of law. It was held that Section 41 of the Punjab Courts Act being repugnant to the amended provisions of Section 100 of the Code and Section 97 of the Amendment Act containing a saving clause, Section 41 of the Punjab Act would no longer hold the field and substantial question of law will be required to be framed. Section 41 of the Punjab Courts Act reads as under:
"Section 41 - Second Appeals
(1) An appeal shall lie to the High court from every decree passed in appeal by any Court subordinate to the High Court on any of the following grounds, namely:
(a) the decision being contrary to law or to some custom or usage having the force of law:
(b) the decision having failed to determine some material issue of law or custom or usage having the force of law:
(c) a substantial error or defect in the procedure provided by the Code of Civil Procedure 1908 [V of 1908], or by any other law for the time being in force which may possibly have produced error or defect in the decision of the case upon the merits:
1 [Explanation - A question relating to the existence or validity of a custom or usage shall be deemed to be a question of law within the meaning of this section:]
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) [Repealed by Section 2B of Punjab Act 6 of 1941]
9. A Constitution Bench of this Court however in Pankajakshi (Dead) through L.Rs. & Ors. (supra) opined that Section 97 of the Amendment Act prohibited amendments made in the principal Act which were repugnant to the same and, therefore, if any state amendment to the Code was enacted by the state legislature or a rule was made by the High Court of State in respect of the provisions of the Code which ran counter to the Code, it would be hit by the provisions of the savings clause of the Amendment Act. The caveat, however, was that the legislation in question being the Punjab Act is a pre-Constitution Act and hence is not a legislation hit by the provisions of Article 254 of the Constitution of India which holds state enactments to be repugnant to the enactments when they run counter to the laws enacted by the centre through the concurrent list. The legislation was saved by Article 372(1) of the Constitution of India being a pre-Constitutional enactment which was to continue in to be force until altered or repealed or amended by a competent legislature. No such repeal took place, hence, the legislation continues to operate.
10. The effect of the judgment of the Constitution Bench is that insofar as the State of Punjab is concerned, a second appeal does not require formulation of a substantial question of law since the Punjab Act would be applicable for the State. Hence, Section 100 of the Code would not hold the field having supervening effect."The cumulative effect of the all these judgements by the Supreme Court re-establishes the same genesis of law, as it was prior to the amendment of 1977 in CPC, and thus the ratio of law as laid down by Ganpat's Full Bench Supra, still holds good, and a Second Appeal in the Punjab and Haryana High Court is to be filed under the provisions of Section 41 of the Punjab Courts Act 1918, as the said provision exists.
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