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irfanur-rashid Khan Vs. Rizwanur-rashid Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 723 of 1983
Judge
Reported inAIR1985All271
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 6, Rule 17
Appellantirfanur-rashid Khan
RespondentRizwanur-rashid Khan and ors.
Appellant AdvocateB.D. Mandhya, ;Vinod Sinha and ;Sharad Mandhyan, Advs.
Respondent AdvocateG.P. Mathur, Adv.
DispositionRevision allowed
Excerpt:
.....filed against the order - held, maintainable. - - the hearing of the suit was adjourned from time to time till 20-10-1983 on which date the defence of the applicant was struck off for his alleged failure to incorporate amendment in his written statement and pay the costs within the time allowed. he further argued that even assuming for the sake of argument the applicant had failed to incorporate amendment in the written statement and pay cost to the opposite party within time his defence could not be struck off. in my opinion, the court below acted illegally and with material irregularity in striking off the defence of the applicant on the ground that he failed to incorporate the amendment in his written statement and pay cost within the period granted for that purpose. even..........for declaration that he is the owner of firm m/s. oriental potteries. the applicant filed a written statement denying the claim of the opposite party no. 1 that he was the owner of the firm m/s. oriental potteries. subsequently, the applicant moved an application for amendment of his written statement which was allowed on 12-1-1983 on payment of rs. 30/- as costs. the applicant was granted 15 days' time for incorporating the amendment in his written statement and pay costs. the hearing of the suit was adjourned from time to time till 20-10-1983 on which date the defence of the applicant was struck off for his alleged failure to incorporate amendment in his written statement and pay the costs within the time allowed.3. i have heard the learned counsel for the parties and have.....
Judgment:
ORDER

J.N. Dubey, J.

1. This revision under section 115 C.P.C. is directed against the order dated 20-10-1983 of the Civil Judge, Bulandshahr striking off the defence of the appellant.

2. The opposite party No. 1 filed suit No. 142 of 1975 in the Court of Civil Judge, Bulandshahr for declaration that he is the owner of Firm M/s. Oriental Potteries. The applicant filed a written statement denying the claim of the opposite party No. 1 that he was the owner of the firm M/s. Oriental Potteries. Subsequently, the applicant moved an application for amendment of his written statement which was allowed on 12-1-1983 on payment of Rs. 30/- as costs. The applicant was granted 15 days' time for incorporating the amendment in his written statement and pay costs. The hearing of the suit was adjourned from time to time till 20-10-1983 on which date the defence of the applicant was struck off for his alleged failure to incorporate amendment in his written statement and pay the costs within the time allowed.

3. I have heard the learned counsel for the parties and have perused the record.

4. It has been urged by the learned counsel for the applicant that the observation of the court below that the applicant did neitherincorporate the amendment in his written statement nor pay costs to the opposite party No. 1 within time is wrong. The applicant incorporated the amendment in his written statement and also paid the costs within the time allowed. This being so, no action could be taken against the applicant on this ground. He further argued that even assuming for the sake of argument the applicant had failed to incorporate amendment in the written statement and pay cost to the opposite party within time his defence could not be struck off. According to him, at the most his application for amendment of the written statement could be rejected for that reason. In my opinion, the court below acted illegally and with material irregularity in striking off the defence of the applicant on the ground that he failed to incorporate the amendment in his written statement and pay cost within the period granted for that purpose. Even assuming for the sake of argument that the applicant failed to incorporate amendment in his written statement and pay cost within the period granted by the court for that purpose it could not have given jurisdiction to the court to strike off his defence.

5. Moreover, the observation of the court that the applicant failed to incorporate necessary amendment in his written statement and pay costs within time also appears to be incorrect. It has been specifically stated by the applicant in paragraphs 7 and 8 of his supplementary affidavit that he had incorporated the amendment in his written statement and had also made payment of the costs to the opposite party No. 1 within the time granted by the court. It has been further stated that the order sheet contains endorsement of receipt of the cost by the opposite party No. 1. These paragraphs have been replied by the opposite party No. 1 in paragraphs 23 and 24 of the counter-affidavit. It has been admitted by him that the order sheet contains endorsement of the receipt of Rs. 30/- and that he was granted one week's time for filing replication on 27-1-1983. It is noticeable that the replication was to be filed by the opposite party No. 1 only if the amendments were duly incorporated by the applicant in his written statement and costs of Rs. 30/- were paid subject to which his amendment application was allowed. The very fact that the opposite party No. 1 took oneweek's time for filing replication goes a long way to prove that the amendments were duly incorporated in the written statement and costs were also paid to opposite party No. 1 within time. The opposite party No. 1 has not specifically denied the payment of costs and the incorporation of the amendments in the written statement within time which also proves that applicant did not commit any default in this regard. The claim of the opposite party No. 1 that as the applicant had not paid entire costs meaning thereby costs awarded against him earlier the court below was perfectly justified in striking off the defence is not correct. The amendment application was allowed subject to payment of costs of Rs. 30/-which was admittedly paid and even if the applicant failed to pay cost awarded against him earlier it could not result even in rejection of the amendment application what to say striking off the defence.

6. In the result, the revision succeeds and is allowed and the order dated 20-10-1983 of the Court below striking off the defence of the applicant is set aside. There shall be no order as to costs.


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