Surjeet Singh Vs. Kartar Singh and anr. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - an appeal filed by the appellant against the aforesaid judgment and decree failed and was dismissed by the learned additional district judge, jalandhar vide judgment and decree dated 28-5-1977. still being aggrieved, he has tiled the present appeal. 20,550/- this amount was to be deposited by the respondents through the appellant on receipt of an intimation to that effect from the appellant after he had received a like intimation from the rehabilitation department. 16,440/- for which the appellant was to give an intimation to them in writing well in advance. 1 failed to deposit the amount as agreed and as notified. 1 had failed to perform his part of the contract. 1 had failed to perform his part of the contract. 1 has failed to implement the terms of the agreement, if so, its effect? even the attending circumstances clearly show that the admission made by the appellant that the respondent deposited rs. it however, appears that latter during the course of trial when abundant evidence came on record to demolish his defence, the appellant tried to withdraw from his admission so as to create further obstacles in the way of the success of the suit filed by respondent no. since he failed to aver and prove the aforesaid ingredient his suit ought to have been dismissed. the order finally determining the exact amount to be deposited as the balance price of the plot was passed on 4-7-1972. the appellant, for the reasons best known to him, did not send any intimation to respondent no.1. a suit filed by the plaintiff-respondent no. 1 for specific performance of the agreement dated 12-61966(exhibit y3) was decreed in his favour and against the defendant-appellant by the learned senior sub judge, jalandhar, vide judgment and decree dated 11-6-1976 and a decree for possession of one-half share of the property described as plot no. 954 measuring 7 kanals 7 marlas comprising khasra no. 7411, 19380/7412, 1730/7424, 17301/7420 and 7409 min situated near sewa sadan, neela mahal, jalandhar city, was passed in his favour. the appellant was directed to execute sufficient instrument of transfer in favour of respondent no. 1 and to deliver possession of the said one-half share of the land to respondent no. 1 on payment by the latter of a sum of rs. 7590.92 p. an appeal filed by the appellant against the aforesaid judgment and decree failed and was dismissed by the learned additional district judge, jalandhar vide judgment and decree dated 28-5-1977. still being aggrieved, he has tiled the present appeal.2. the facts in brief as alleged in the plaint are that the appellant purchased the aforesaid plot, which was described to measure 7 kanals 7 marlas, for a sum of rs. 20,550/- in open auction on 7-6-1966 for and on behalf of respondent no. 1 and sunder singh respondent no. 2. the appellant entered into an agreement (exhibit p3) with the respondents on 12-6-1966 to sell the said piece of land in equal share to them for a sum of rs. 21,000. at the time of the auction of the land they deposited through the appellant vide receipt dated 8-6-1966 a sum of rs. 1,000/- with the rehabilitation department. a sum of rs. 500/- was paid to him by the respondents at the time of execution of the agreement as earnest money. a sum of rs. 3,110/- was to be paid to the department in order to make up the one fifth of the auction amount of bs. 20,550/- . this amount was to be deposited by the respondents through the appellant on receipt of an intimation to that effect from the appellant after he had received a like intimation from the rehabilitation department. after acceptance of the bid the respondents were to deposit though the appellant the balance 4/5th of the price i.e. rs. 16,440/- for which the appellant was to give an intimation to them in writing well in advance. the possession of the land was deemed to be that of the respondents. stamp and registration expenses were also to be borne by them. the appellant was to execute a power of attorney in favour of the respondents with an authority to sell and to execute the sale deed in favour of any other person as the respondents so chose. they would be entitled to get any number of sale deeds executed either in their favour or in favour of any other person or persons at their expense. in case of default on the part of the appellant, they had a right to get the agreement for sale specifically enforced through a court of law. they had also the option to claim we sum of rs. 21 000/- as damages besides rs. 21,000/- paid as sale consideration to the appellant i.e. total amounting to rs. 42,000/- . in case of default on the part of the respondents, the appellant had to right to forfeit any amount paid to him or to the government by the respondents.3. in pursuance of the agreement (exhibit p3) the respondents deposited rs. 3,110/- on 14-6-1966 with the rehabilitation department through the appellant vide treasury challan, copy of which is exhibit lcw/1: the appellant in turn executed a power of attorney dated 3-8-1966 in favour of respondent no. 1 and one gulab singh a nominee of respondent no. 2 to whom, it appears, respondent no. 2 had agreed to sell his share of the land. both these attorneys were authorised individually and jointly to sell or dispose of the said land, to take its possession and arrange to conduct all the proceedings in any court or department with regard to the same.4. respondent no. 1 alleged that he was put in possession pursuance of the terms of the agreement and he constructed one pucca room with lintel roof and three other rooms on the land and he continued in peaceful possession of the same till 4-11-1972. he further alleged that there was a dispute between the appellant and the rehabilitation department regarding measure merit of the correct area of the plot in dispute. therefore, the balance price of the land amounting to rs. 16,440/- could not be deposited. appeals and revisions were filed on behalf of the appellant with the rehabilitation authorities. ultimately, the financial commissioner (taxation), punjab, exercising the powers of the central government under section 33 of the displaced persons (compensation and rehabilitation) act, 1954 vide order dated 22-3-1972 allowed the appellant to pay proportionate price after deducting the actual shortage of the land.5. respondent no. 1 alleged that respondent no. 2 colludod with the appellant in order to defeat his rights. he requested the appellant through a registered notice dated 29-5-1972 through his counsel to inform him of the actual amount to be deposited writ the government though the appellant. he, however, did not receive this notice and got the same returned with a false and incorrect report. another notice sent was likewise returned. ultimately, he sent a letter to the appellant by registered post on 1-7-1972, which was received by him on 3-7-1972, but did not. reply to the same. on 4-11-1972 the appellant came to the property in dispute accompanied by a score of gundas fully armed and also with the help of the police started demolishing the building of respondent no. 1 and took forcible possession of the property. the appellant proclaimed that he had obtained the sale deed after depositing the balance price with the rehabilitation department. all this was done by the appellant in a mala fide manner with the ulterior motive to deprive respondent no. 1 of his legal tight of ownership of the property. since sunder singh, respondent no. 2, had colluded with the appellant and did not join respondent no. l, the suit was filed by the latter alone; impleading respondent no. 2 as defendant no. 2. he claimed his right to one-half share of the property and sought a decree for specific performance of the agreement (exhibit p3) on payment of half of the amount of consideration, besides stamp and registration expenses etc. and for possession of one-half share of the land.6. the appellant in his written statement did not deny the terms of the agreement (exhibit p3). he denied that rs. 1,000/- were paid on 8-61996. he, however, did not deny the averment that rs. 3,110/- were deposited by the respondent through him with the department and that he executed a power of attorney in favour of respondent no. 1 and gulab singh. he denied that respondent no. 1 was ever put in possession or that he raised any construction on the land in dispute. he asserted that the respondents did not deposit rs. 16,440/- in spite of repeated notices by him to respondent no. 1 after the decision of the financial commissioner. he stated that he himself deposited the amount after executing an agreement in favour of jaswinder paul singh as respondent no. 1 failed to deposit the amount as agreed and as notified. he further stated that the sale deed had not yet been obtained from the government. he also averred that respondent no. 1 had failed to perform his part of the contract. his expression of willingness to perform the contract now was too late. he denied having received any notice from respondent no. 1. he asserted that respondent no. 1 had failed to perform his part of the contract. he never tendered money to him in time. replication was filed on behalf of respondent no. 1 as setting the allegations made in the plaint and denying what had been stated to the contrary in the written statement.7. on the basis of the pleadings of the parties the learned trial court framed the following issues:-'1. whether defendant no. 1 entered into an agreement with the plaintiff and defendant no. 2 for the sale of the land in suit on the terms mentioned in para 2 of the plaint? 2. whether defendant no. 1 has failed to implement the terms of the agreement, if so, its effect? 3. whether the plaintiff has been willing and ready to perform his part of the contract? 4. whether defendant no. l has been ready and willing to perform his part of the contract? 5. relief. 5-a. whether the plaintiff has locus standi to sue? 5-b. whether the plaintiff is barred by his act and conduct to sue? 5-c. whether the suit is premature as alleged in para 4 of the preliminary objection of the written statement?'after receiving evidence the learned trial court decided issues nos. 1 to 4 and 5-a in favour of the plaintiff-respondent no. 1 and against. the appellant and issues no. sb and 5-c against the appellant and in favour of the plaintiff-respondent no. 1. resultantly, the suit was decreed. on appeal the learned additional district judge affirmed the decree. of the trial court, which has given rise to this second appeal.8. i have heard the learned counsel for the parties. the first submission of the learned counsel for the appellant is that para 3 of the plaint which contains an averment to the effect that the respondent deposited a sum of rs. 3,110/- with the 'rehabilitation department through the appellant was wrongly not denied by him in the corresponding para of the written statement. he made an application for amendment of the written statement so as to deny this assertion in the plaint, but. the same was dismissed by the courts below on the ground that the averment had since been admitted by the appellant in his written statement and he could not withdraw from the said admission. the learned counsel relied upon panchdeo narain srivastava v. jyoti sahay, air 1983 sc 462, to contend that an admission made by a party can be withdrawn and explained away. therefore, it cannot be said that by amendment an admission of fact can not be withdrawn. he also placed reliance on haridas ai1das thadani v. godrej rustom kermani, (1984)1 scc 668: (air 1983 sc 319), to contend that the court should be extremely liberal in granting prayer for the amendment of pleadings unless serious injustice or irreparable loss is caused to the other side.9. there is no dispute with the above proposition of law. it has, however, to be seen whether in the context of the facts brought on the record, the appellant had any scope to successfully withdraw from the admission so made by him. during the course of his statement in court on d.w. 3 the appellant specifically stated that the written statement had been drafted at his instance. whatever is stated therein is correct. he further stated that para 3 of the written statement is correct. after this statement on oath, hardly any scope was left for withdrawing the admission made in para 3 of the written statement. even the attending circumstances clearly show that the admission made by the appellant that the respondent deposited rs. 3,110/- through him with the rehabilitation department is correct. there is a. specific clause in the agreement (exhibit y3) that on payment of the balance amount of 1/5th installment i.e. rs. 3,110/- by the respondents which the appellant shall deposit with the rehabilitation department, he shall execute a power of attorney in their favour or any other person of their choice. the amount of rs. 3,110/- was deposited on 14th june, 1966. a power of attorney was executed by the appellant in favour of respondent no. 1 and gulab singh on 3-8-1966. besides in the notice dated 30-7-1972, allegedly sent by the appellant to respondent no. under registered cover (exhibit d.w. 2/1), he nowhere complains that the respondents did not pay the amount of rs. 3,110/- as stipulated in the agreement. on the other hand, after accounting for the said amount, he requires respondent no. 1 to pay the balance amount of rs. 7,590.92 as 1/2 share of the balance of 4/5th of the amount to he deposited with the rehabilitation department as determined by the financial commissioner. gulab singh has appeared in the witness-box as p. w.7. he has specifically stated in examination-in-chief that the amount of rs. 3,110/- was got deposited in the bank by the respondents and the general power of attorney (exhibit p7) was executed by the appellant in favour of respondent no. 1 and gulab singh. in cross-examination the appellant did not question this statement of gulab singh. all that was elicited from him was that rs. 4,110/- were paid by the respondents(which includes rs. 1,000/- paid to the appellant as per agreement), but he did not remember the date of the deposit. he accompanied the appellant and the respondents. ha candidly stated that no other amount was deposited by them. it is also to be noted that in the notice, allegedly sent by registered cover (d.w. 2/1), the appellant has mentioned that in case the balance amount was not paid, the amount already deposited by the respondents shall stand forfeited, and that this would cause loss not only to respondent no. 1 but also to his partner i.e. sunder singh respondent no. 2. during the course of his statement, which was recorded by the local commissioner, respondent no. 1 categorically stated that the amount of rs. 3,110/- was deposited by the respondents in the name of the appellant and that the original treasury challan was furnished to the rehabilitation department. he produced copy of the said challan exhibit l.c.w./1. all these facts leave no scope for doubt that the amount of rs. 3,110/- was deposited by the respondents through the appellant in terms of the agreement. the averment was correctly made to this effect in the plaint and correctly not denied in his written statement by the appellant. it however, appears that latter during the course of trial when abundant evidence came on record to demolish his defence, the appellant tried to withdraw from his admission so as to create further obstacles in the way of the success of the suit filed by respondent no. 1. this decidedly could not be allowed. in my view therefore, the courts, below rightly dismissed his application for amendment.10. learned counsel for the appellant then contended that respondent no. i was not ready and willing to perform his part of the contract relying on dhanna singh v. malkiat singh, 19t33 plr 275, he submitted that he was required to plead and prove that he had money at his disposal to pay the sale consideration. the word 'willing' contained in section 16 of the specific relief act (for short 'the act') implies that the plaintiff was inclined to do what was required. it was incumbent on him further to plead that he tendered the money to the appellant on a particular date and demanded transfer of the property by an instrument. since he failed to aver and prove the aforesaid ingredient his suit ought to have been dismissed.11. i have considered that submission. law has to be applied to a case in the facts obtaining therein. as i have already observed above, a sum of rs. 3,110/- was paid by the respondents which was deposited by the appellant with the rehabilitation department on 14-6-1966. thereafter the appellant executed the general power of attorney (exhibit p7). there is enough documentary evidence on the recorded that later on a dispute arose because at site on actual measurements the area of the plot was found short by 10 marlas the attorneys of the appellant therefore, filed petitions with the rehabilitation department for its re measurement and for determining the proportionate balance amount payable 'by them on the basis of the area actually found at the site. this matter was still being pursued when the appellant canceled the power of attorney (exhibit p-7) by a cancellation deed dated 24-5-1971(exhibit d. w.3/1). this amply shows that the appellant tried to wriggle out of the agreement (exhibit p-3). he appears to have done so as the market price of the plot had risen considerably. this is clear from the following observations made by the chief settlement commissioner in his order dated l5-11-1971(exhibit p.w. l3/1):--'it appears that due to the rise in the prices of land, surjit singh has tried to come forward again to pursue this case. evidently, there is. nothing wrong in following. up the case by shri gulab singh, general attorney, and even the cancellation of power of attorney can be of no consequence, because it is contrary to the conditions laid down in the power of attorney itself. the question of legality of revocation of this power of attorney is a matter to be decided by the civil court and no further comments need to be offered on this point.'it appears that after this point of time the appellant has been playing a game of hide and seek. he wanted to escape from tae obligation under the agreement (exhibit p3), but at the same time he was out to complete legal formalities on paper which should disentitled respondent no. 1 from securing relief of the specific performance of this agreement, if he brought the cause to the court. he issued a notice dated 24-5-1971(exhibit d-6) requiring the respondent to pay his share of the balance amount, so that the same could be deposited with the department and after obtaining the sale certificate, a sale deed for one half share of the plot could be executed by him in favour of respondent no. 1. it is further clear that till then the exact amount payable as the balance price of the plot on reduction of 9 marlas of land, which was found short on measurement of the plot, had not yet been determined by the department. respondent no. 1 addressed reply dated 29-5-1972(exhibit p-l) through this counsel to the appellant, wherein respondent no. 1 categorically stated that the was ready and willing to perform his part of the contract that according to the decision of the financial commissioner the appellant had to deposit the amount of the plot after he was intimated of the price etc. by the rehabilitation department; so whenever the appellant gets an intimation from the department for the deposit of the amount assessed, he should inform respondent no. 1 immediately so that he may deposit the amount within time and the sale deed is got' executed and registered in his favour; respondent no. 1 will accompany the appellant on receipt of his letter so that the amount may be deposited in the government treasury or state bank of india, whenever the amount is required to' be deposited. the order finally determining the exact amount to be deposited as the balance price of the plot was passed on 4-7-1972. the appellant, for the reasons best known to him, did not send any intimation to respondent no. i. he has no doubt brought on the record a registered cover (exhibit d.w. 2/1) sent by post to respondent no. 1 on 30th july, 1972, purported to have contoured notice to him of the same day, the receipt of which was allegedly refused by the appellant as per endorsement exhibit d. w.2/2 by labh singh postman (d. w.2). i am one with the learned trial court that sending of this notice by the appellant was only a facade to cover the formality and create a defence in his favour in case of suit for specifi performance filed by respondent no. 1. the agreement (exhibit p3) contains a specific provision that immediately on receipt of intimation from the rehabilitation department for depositing 4/5th of the amount of the price, the appellant shall inform lis respondents. then is no explanation on the record why no intimation in writing was sent in terms of the agreement for a period of 25 days. it is also to be noted that the amount was required to be deposited. with the rehabilitation department on or before 4-8-1972. by sending the notice by registered past on 30th july; 1972 the appellant was not affording opportunity to respondent no. 1 consistent with the terms of the agreement to pay the balance amount for being deposited with the department. in fact, it appears that a report of refusal was got maneuvered by the appellant from labh singh postman (d.w. 2). learned counsel for the appellant pointed out that the learned additional district judge has wrongly mentioned in his judgment that the exact balance amount payable, as determined by the department was not specified by the appellant in the notice dated 30th july; 1972. on perusal of the notice i find that the amount has been mentioned, but this does not comply with the condition of the agreement because the notice purports to have been sent at the eleventh hour and a refusal of the same has been got maneuvered. no reliance can, therefore, be placed by the appellant on the same.12. it has to be noted that sunder singh respondent no. 2 has been colluding with the appellant. he apparently resiled from the agreement that he had entered into with gulab singh, as a result of which power of attorney (exhibit p7) was executed by the appellant in favour of respondent no. 1 and gulab singh. while appearing in the witness box on behalf of the appellant as d. w. l, sunder singh went whole hog against respondent no. 1. he stated that he and respondent no. 1. did not pay the amount of rs. 3, 110/- for being deposited with the rehabilitation department and which deposit is evidenced by the copy of the treasury challan l.c.w. 1 dated 14-6-1966. he admitted that he had been attending all the hearings during the proceedings in the suit in the trial court. still he chose to be proceeded against ex parte and did not file his written statement as defendant to the suit. he conveniently stated that he gave up his portion of the sale transaction. no reliance can obviously be placed on his statement.13. the facts thus make it clear that the appellant tried to keep respondent no. 1 in dark did not give him the opportunity to perform his part of the contract by making payment of one-half of the balance amount of the price of the plot and instead himself deposited the amount on 4-8-1972 and secured the sale certificate from the department (ext. p.w. 9/l). it was only more than three months later when the respondent came to know about it and be promptly filed the instant suit for specific performance on 18-11-1972 without losing any time. the contention of the learned counsel for the appellant the respondent. no. 1. has neither pleaded nor proved that he had sufficient financial resources with him or that he had tendered the amount of consideration to the appellant, is without substance. there was no opportunity made available to respondent no. 1 to tender the amount of consideration to the appellant., besides the appellant in his written statement, while denying that respondent no. 1 was ready and willing in the past to perform his part of the contract, stated that his willingness now to do so was of' no consequence. in view of this averment, i find that it was not necessary for respondent no. 1 to prove that he had sufficient financial resources to pay the balance amount of consideration of his share. therefore, i reject this contention.14. it has then been contended by the learned counsel that the land which was the subject-matter of the agreement (ext. p-3) consists of various khasra numbers. no decree for specific performance of half share of the land comprising these khasra numbers could be passed for the reason that the land did not constitute one piece. he, therefore, submits that the agreement had been rendered vague on sunder singh respondent no. 2 giving up his right under the agreement. therefore, decree for specific performance for one-half share in favour of respondent no. 1 could not be granted. to support this submission he relied on william graham v: krishna chandra dev, air 1925 pc 45; abdul aziz v. m. abdul sammad, air 1937 mad 596 and bhagwan singh v. mohammad iftikhar ali khan, (1982) 84 pun lr 668. he also inferred to s. 9 of the specific relief act, 1963(for short the 'act') which lays down that except as otherwise provided in the act, where any relief is claimed in respect of a contract, the person against whom the relief is claimed may plead by way of defence any ground which is available to him under any law relating to contracts. then referring to s. 29 of the contract act, 1872, he contended that where the agreement is vague for uncertainty, it is void, and thus submitted that a void agreement could not be specifically enforced. i find that a great deal of stress has unnecessarily been laid on this aspect by the learned counsel for the appellant. agreement ext p-3 makes it clear that the land comprising of the different khasra numbers mentioned therein, constitutes one plot of land. the certificate of sale (ext p.w. 9/1) also makes it clear that this plot of land consisting of as many as five khasra numbers is one piece and is mentioned in the schedule as plot no. 954. in fact, at no stage, either before the institution of the suit or during the proceedings in the courts below, did the appellant ever raise a contention that the land, which is the subject-matter of the. agreement to sell (ext. p-3), is not one plot or cannot be divided into two equal parts. i have no doubt in my mind that there is absolutely no ambiguity or vagueness which might render the agreement to sell (ex. p-3) qua one-half share of the land to be apportioned in favour of respondent no. 1 as being incapable of specific performance. i, therefore, reject this submission.15. the last contention raised by the learned counsel for the appellant is that under s. 20 of the act the grant of relief of specific performance is discretionary. he further submitted that the land in dispute has, after passage of more than 20 years, become extremely valuable and the consideration for the same as specified in the agreement to sell (ext. r3) is ridiculously low. if the agreement is specifically enforced, it would cause great hardship to the appellant therefore, relying on cl (b) of sub-s. (2) of s. 20 of the act, he submitted that relief of specific performance should not be granted to respondent no. 1. i do not find any force in this submission explanation 1 to s. 20(2) of the act makes it clear that mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) a hardship within the meaning of cl, (b). in the present case no doubt the agreement was entered into on 11-6-1966, but the amount of 4/5th of the consideration was parted with and deposited with the rehabilitation department only on 4-8-1972 the present suit for specific performance of the agreement was instituted by respondent no. 1 on 18-11-1972. the mere fact that the regular second appeal brought by the appellant himself is being finally disposed of more than 14 years subsequent thereto, is no ground for' him to seek protection of s. 20 of the act. i, therefore, reject this submission also.16. as a consequence, i find no force in this appeal, which is dismissed with costs. the judgments and decrees of the courts below are affirmed.17. appeal dismissed.