ASSISTANT COLLECTOR OF CENTRAL EXCISE Vs. RAVI

JUDGEMENT

(1.) This revision petition by the 1st defendant Assistant Collector of Central Excise is against an order disallowing the application for amendment of his written statement by adding the plea that the suit is barred under S.80 CPC., for want of notice. The suit was instituted by the 1st respondent plaintiff on 8-12-1964 for a declaration that he is the sole proprietor to manufacture and sell "Chandrika soap" in all parts of Madras State except the District of Kaniakumari by virtue of a gift deed executed by his father the 2nd respondent and also for a perpetual injunction restraining the petitioner from cancelling the exemption granted to him from imposing Excise duty on the first consignment of 100 tons of soap in every financial year. The petitioner filed a very lengthy written statement on 21-8-1965 raising various contentions and finally the suit went to trial when the 1st respondent was examined as P.W. 1 on 22-11-67. When the trial was in progress, the petitioner filed a petition to amend the written statement on 26-12-67 raising the contention that the 1st respondent has no right to file a suit questioning the notice issued by the petitioner asking him to show cause why the exemption granted to him should not be withdrawn as, according to him, he was enjoined upon to issue such notice in good faith in discharge of his official functions under the powers conferred upon him by virtue of the Central Executive Manual. The contention was that a civil court has no jurisdiction to entertain such a suit. This additional written statement was, however, admitted by the court below on terms and again the suit was posted to continue the trial, when again the petitioner filed another application on 4-7-68 to amend the written statement contending that the suit is not maintainable as no notice under S.80CPC. has been given to him. The lower court dismissed that petition on 9 9 68. It is against that order the revision petition is filed.

(2.) It is clear from the facts so far stated that the petitioner sought to amend the written statement some 3 years after the original written statement was filed, but more than 4 years from the date of the institution of the suit. It is contended on behalf of the 1st respondent that the inordinate delay in moving the lower court to admit fresh written statement is a circumstance to show that the petitioner had waived his defence as regards want of notice under S.80 CPC. The officer, who filed the petition in the lower court, did not subscribe to an affidavit as to why there was delay in filing the additional written statement. The affidavit in support of the petition showed that the written statement had to be accepted on the basis of his petition. However, the petition contained the allegation that the contention could not be raised in time on account of oversight and not due to any negligence on his part. The officer did not make any such allegation in his affidavit. Anyhow, one fact is clear in this case to show that there had been inordinate delay in seeking to file the additional written statement. In this regard I will examine some of the cases on the point to ascertain whether in the circumstances of the present case there is waiver on the part of the petitioner in raising the requisite contention in his written statement. I have already stated that the written statement was filed more than 3 years after the original written statement came in the court. It is also relevant to point out that on almost a parallel contention, the written statement was once amended on 20-2-68. That contention was covered by the provisions of S.9 CPC. Even then the petitioner did not think it necessary to amend the written statement on the allegation that the suit is bad for want of notice under S.80 CPC. In a decision reported in Purnachandra Sarkar v. Radharani Dassya (AIR 1931 Calcutta 175) it is seen that the suit in that case was instituted on 1-2-1924 while the written statement was filed on 16-6-1924. In that written statement nothing, whatever, was said or even hinted about the question of notice and on 19-7-1924 issues were framed on the existing allegations in the plaint and written statement. However, no issue was framed on the question as to notice. But, two years after the institution of the suit, that is to say, on 11-2-1926 the contesting defendant made an application to the court for the first time that the defendant was entitled to a notice under S.80 CPC. The trial of the suit did not come up until 23-3-1927 and when the trial began the question of notice under S.80 was for the first time seriously canvassed between the parties. However, the court permitted an additional issue to be framed regarding the question as to want of notice. But, when the matter came up in appeal on that issue, the High Court of Calcutta made the following observation:

(3.) More or less the same view has been expressed in a decision reported in Ramnarain v. Ram Pishun (AIR 1934 Patna 354). At page 355 the observation is as follows:-