RASHID KHAN Vs. RIZWANUR RASHID KHAN

JUDGEMENT

(1.) THIS revision under section 115 CPC 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.) MOREOVER, the observation of the court that the appellant 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 one week's time for filing replication goes a long way to prove that 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 amendment in the written statement within time which also proves that the 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.