# Construction Ltd., and another v. Hindustan Steel Works Construction

- **Citation:** (2006) 2 ILRA 630
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-12-05
- **Case number:** Special Appeal No. 1426 of 2005
- **Bench:** Dr. B.S. Chauhan, Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/construction-ltd-and-another-v-hindustan-steel-works-construction-40561
- **Pages:** 3

## Headnote

Constitution of India, Art. 226-Practice
of
Procedure-Writ
Petition-decided
finally-without
waiting
for
counter
affidavit-despite
of
receiving
the
Notices-Counter affidavit not filed for a
long
period
of
6
years-after
the
amendment of C.P.C. in the year 2002Counter affidavit is to be filed within 30
days positively which can be extended in
exceptional cases-Court can not permit
to take the benefit of his own wrong
committed by the appellant-held-Single
Judge rightly decided the case on the
basis of averment made in writ petition.

Held: Para 7 and 9
2 All] Distt. Basic Education Officer,Etawah & anr. V. Dhananjai Kumar Shukla & anr.
631
No explanation was ever furnished as to
why the counter affidavit had not been
filed. Appellants cannot be permitted to
take advantage of their own mistake. A
person alleging his own infamy cannot
be heard at any forum, what to talk of a
Writ Court, as explained by the legal
maxim ''allegans suam turpetudinem
non est audiendus. If the appellants
have committed a wrong by not filing the
counter
affidavit,
they
cannot
be
permitted to take the benefit of their
own wrong.

In view of the above, if the counter
affidavit was not filed, the Court was
justified in deciding the case on the basis
of the averments in the petition.
Case law discussed:
2005 (4) SCC-480
AIR 2005 SCC-3985
AIR 1977 SC-196
AIR 1985 SC-1019
AIR 1986 SC-638
1996 (6) SC-342
(1998) 3 SCC-112
1967 ALJ-410

## Text

630 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
10. Regulations 84 (i)(d) and 86 of
the aforesaid Regulations, 1975 are as
under:-

"84-Penalties:- (i) Without prejudice
to the provisions contained in any other
regulation, an employee who commits a
breach of duty enjoined upon him or has
been convicted for criminal offence or an
offence under Section 103 of the Act or
does
anything
prohibited
by
these
regulations shall be liable to be punished
by any one of the following penalties-

------------
------------
------------
(d) recovery from pay or security deposit
to compensate in whole or in part for any
pecuniary loss caused to the Co-operative
society by the employee's conduct.

------------
------------
------------

86-Appeal- Orders imposing penalty
under sub-clauses (a) to (d) of clause (1)
of Regulation no. 84 shall be appleable to
the authorities as mentioned in Appendix
'D'."

11. From the Regulation it is
apparent that the relief of both the
punishments awarded to the petitioner is
provided by way of statutory appeal,
which has not been exhausted by the
petitioner.

12. It is the consistent view of
Hon'ble Supreme Court that wherever an
alternate remedy is available it should not
be bye-passed and the petitioner has to
approach
this
Court
after
availing
alternate remedy. Reference in this regard
may be made to Hindustan Steel Works
Construction Ltd., and another Vs.
Hindustan Steel Works Construction
Ltd., Employees Union (2005) 6 SCC725 and U.P. State Spinning Co. Ltd.
Vs. R.S. Pandey and another, (2005)
107 FLR 729.

13. For the reasons stated above, the
writ petition is dismissed on the ground of
alternative remedy.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.12.2005

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE DILIP GUPTA, J.

Special Appeal No. 1426 of 2005

District Basic Education Officer, Etah and
another

...Appellants
Versus
Dhananjai kumar Shukla and another

...Respondents

Counsel for the Appellant:
Sri K. Shahi

Counsel for the Respondents:

Constitution of India, Art. 226-Practice
of
Procedure-Writ
Petition-decided
finally-without
waiting
for
counter
affidavit-despite
of
receiving
the
Notices-Counter affidavit not filed for a
long
period
of
6
years-after
the
amendment of C.P.C. in the year 2002Counter affidavit is to be filed within 30
days positively which can be extended in
exceptional cases-Court can not permit
to take the benefit of his own wrong
committed by the appellant-held-Single
Judge rightly decided the case on the
basis of averment made in writ petition.

Held: Para 7 and 9
2 All] Distt. Basic Education Officer,Etawah & anr. V. Dhananjai Kumar Shukla & anr.
631
No explanation was ever furnished as to
why the counter affidavit had not been
filed. Appellants cannot be permitted to
take advantage of their own mistake. A
person alleging his own infamy cannot
be heard at any forum, what to talk of a
Writ Court, as explained by the legal
maxim ''allegans suam turpetudinem
non est audiendus. If the appellants
have committed a wrong by not filing the
counter
affidavit,
they
cannot
be
permitted to take the benefit of their
own wrong.

In view of the above, if the counter
affidavit was not filed, the Court was
justified in deciding the case on the basis
of the averments in the petition.
Case law discussed:
2005 (4) SCC-480
AIR 2005 SCC-3985
AIR 1977 SC-196
AIR 1985 SC-1019
AIR 1986 SC-638
1996 (6) SC-342
(1998) 3 SCC-112
1967 ALJ-410

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This Special Appeal has been
filed against the order dated 14.09.2005 of
the learned Single Judge, by which the
application for recalling the order dated
15.02.2005 passed in Writ Petition
No.24957 of 1999, has been rejected.

2. The facts and circumstances
giving rise to this case are that the
aforesaid writ petition was dismissed vide
order dated 15.02.2005. The application
for recall was filed only on the ground
that the present appellants could not file
the counter affidavit. However, the
learned Single Judge rejected the said
application on the ground that recall of
the order was not permissible on such a
ground. Hence the present appeal.

3. Learned counsel for the appellants
has fairly conceded that the present
appellants have received the notice of the
filing of the writ petition. However,
inadvertently, the appellants could not file
the counter affidavit for a period of six
years. Therefore, the application for recall
was filed and it has been rejected only on
a technical ground.

4. Though the provisions of the
Code of Civil Procedure, (hereinafter
called the ''C.P.C.') are not applicable in a
writ
jurisdiction
but
the
principle
enshrined therein are applicable. After the
amendment in the C.P.C. in 2002, counter
affidavit should be filed within 30 days
from the date of receipt of notice.
However, it can be extended by the Court
in
exceptional
circumstances.
(Vide
Kailash Vs. Nankhu & Ors., (2005) 4
SCC 480; and Smt. Rani Kusum Vs. Smt.
Kanchan Devi & Ors., 2005 AIR SCW
3985).

5. In State of Punjab Vs. V.P.
Duggal & Ors., AIR 1977 SC 196, the
Hon'ble Apex Court held that the Court
has no right to force a party to file the
counter affidavit. It is the will of the party
to file the pleadings or not. Court may
draw adverse inference or pass any order
but it is not proper for the Court to issue
any direction to a party to file the counter
affidavit.

6. Under Order VIII Rule 5, C.P.C.,
a specific reply is to be given to the
pleadings
taken
by
the
petitioner.
However, sub-rule (2) thereof reads as
under:-

"(2). Where the defendant has not
filed a pleadings, it shall be lawful for the
Court to pronounce judgment on the basis
632 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
of the facts contained in the plaint, except
as against a person under a disability, but
the Court may, in its discretion, require
any such fact to be proved."

7. It is not the case of the appellants
that they had been under disability nor the
State instrumentalities can be said to be
under some disability. No explanation
was ever furnished as to why the counter
affidavit had not been filed. Appellants
cannot be permitted to take advantage of
their own mistake. A person alleging his
own infamy cannot be heard at any forum,
what to talk of a Writ Court, as explained
by the legal maxim ''allegans suam
turpetudinem non est audiendus. If the
appellants have committed a wrong by not
filing the counter affidavit, they cannot be
permitted to take the benefit of their own
wrong. (Vide G.S. Lamba & Ors. Vs.
Union of India & Ors., AIR 1985 SC
1019; Narender Chadha & Ors. Vs. Union
of India & Ors., AIR 1986 SC 638; Jose
Vs. Alice & Anr., (1996) 6 SCC 342; and
T. Srinivasan Vs. Mrs. T. Varalakshmi,
(1998) 3 SCC 112).

8. In Ram Ji Lal Vs. Balwant Singh,
1967 ALJ 410 this Court held that the
Court cannot recognize a claim or cause
of action based on a turpitude. Therefore,
a person approaching the Court has to
satisfy that his action/inaction was lawful,
otherwise, he cannot be heard. In such an
eventuality, the legal maxim ''ex turpi
causa non oritur actio' applies.

9. In view of the above, if the
counter affidavit was not filed, the Court
was justified in deciding the case on the
basis of the averments in the petition.

If the case is examined in the light of
the aforesaid settled legal proposition and
statutory provisions, no interference is
called for. Appeal lacks merit and is
accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.02.2006

BEFORE
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No. 6432 of 2006

Mohd. Rais Khan

...Petitioner
Versus
Shri Naseeb Ullah Khan and others

 ...Respondents

Counsel for the Petitioner:
Sri A.K. Mehrotra
Sri Nishant Mehrotra

Counsel for the Respondents:
Sri Narayan Singh

Code of Civil Procedure-Section-115 Civil
Revision-of Trail Court-under challengemerely issuance of Notice on application
for T.I. can not be termed as case
decided, held revision not maintainable.

Held: Para 10

In view of the aforesaid settled position
of law, an order directing issue of notice
on a temporary injunction application
under Order XXXIX, Rule 1 C.P.C. is
definitely not an order, which though
may come within the ambit of 'case
decided' but it would not amount to
dispose of the injunction application or
terminate
the
proceedings
of
the
temporary injunction. Obviously, as the
law is settled on this point, the revision
as was preferred before the District
Judge by the plaintiff on the order
passed by the trial court issuing notice
on temporary injunction application, was
definitely not maintainable and any
order
directing
admission
of
such