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Premier thermatic P. Ltd. Vs. Indian Sulphacid Industries Ltd. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtPunjab and Haryana High Court
Decided On
Case NumberCompany Application No. 28 of 1985
Judge
Reported in[1985]57CompCas816(P& H)
ActsCompanies (Court) Rules, 1959 - Rule 9; Code of Civil Procedure (CPC) , 1908 - Sections 151 - Order 6, Rule 17
AppellantPremier thermatic P. Ltd.
RespondentIndian Sulphacid Industries Ltd.
Appellant Advocate G.S. Rawal and; J.S. Narang, Advs.
Respondent Advocate D.V. Sehgal, Sr. Adv. and; B.R. Mahajan, Adv.
Cases ReferredMool Chand Wahi v. National Paints Pvt. Ltd.
Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply..........that the main petition is liable to be dismissed on the ground that it is not accompanied by a proper affidavit and, therefore, the petitioner cannot be allowed to file the new affidavit. in support of his contention, he places reliance on mool chand wahi v. national paints pvt. ltd. [1984] plr 183. in that case, a petition was dismissed on the ground that the same was not accompanied by a proper affidavit.3. i have duly considered the argument and find substance in the contention of mr. rawal. it cannot be disputed that if the petition is dismissed on this technical ground, the petitioner is not debarred from presenting a fresh petition. if it files a fresh petition, that shall be deemed to be presented on the date when that is filed in the court. taking into consideration the.....
Judgment:

Rajendra Nath Mittal, J.

1. This application has been filed by the petitioner praying that the amended affidavit dated February 13, 1985, be taken on record, and as a part of the main petition in place of the affidavit dated October 18, 1983, filed earlier. The notice of the application was given to the counsel for the respondent who has filed a reply to the application and opposed the prayer of the petitioner.

2. Mr. Rawal has contended that through an oversight the affidavit filed earlier with the petition was not in the proper form. In view of the objections of the respondent, the present affidavit has been filed in the proper form. He submits that the new affidavit be taken on the record and the petition be deemed to have been filed today. On the other hand, Mr. Sehgal has argued that the main petition is liable to be dismissed on the ground that it is not accompanied by a proper affidavit and, therefore, the petitioner cannot be allowed to file the new affidavit. In support of his contention, he places reliance on Mool Chand Wahi v. National Paints Pvt. Ltd. [1984] PLR 183. In that case, a petition was dismissed on the ground that the same was not accompanied by a proper affidavit.

3. I have duly considered the argument and find substance in the contention of Mr. Rawal. It cannot be disputed that if the petition is dismissed on this technical ground, the petitioner is not debarred from presenting a fresh petition. If it files a fresh petition, that shall be deemed to be presented on the date when that is filed in the court. Taking into consideration the position of law, the petitioner's counsel has fairly agreed that the present petition be treated to have been filed today. It is well settled that the procedural laws are the handmaid and not the mistress, the lubricant and not resistant in the administration of justice. In the present case, if the affidavit is allowed to be taken, it will not cause injustice to the respondent. On the other hand, it will do injustice to the petitioner if the application is disallowed. Learned counsel for the otherside made a reference to my decision in Mool Chand Wahi's case [1984] PLR 183. In that case, the petitioner did not file an amended affidavit and did not make a statement that the petition be treated to be filed on the date of filing the amended affidavit. In the circumstances, the observations in that case are of no assistance to the learned counsel for the respondent.

4. Therefore, I accept the application and allow the petitioner to place on record the amended affidavit and order that it should be read in place of the earlier affidavit dated October 18, 1983. It may, however, be stated that the main petition shall be deemed to have been filed today.


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