# Defendant/Revisionist v. Jai Kumar Mishra and others

- **Citation:** (2005) 1 ILRA 227
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-01-18
- **Case number:** Civil Revision No. 2 of 2005
- **Bench:** S.N. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/defendant-revisionist-v-jai-kumar-mishra-and-others-40430
- **Pages:** 4

## Headnote

Code of Civil Procedure-Sec. 11-'Res
judicata'-first
amendment
application
rejected as not pressed-on the ground of
technical flaw. Whether is the second
amendment application barred by the
Principle of Resjudicata? Held-'No' legal
position explained.

Held: Para 4

It is clearly borne out from a bare
perusal of the order that the first
amendment application was dismissed
as not pressed considering the ground
that
the
initial
application
for
amendment had some technical flaw and
also reckoning into consideration that
second amendment was necessitated as
a sequel to the averments made in para
27 of the written statement. In this
background, the argument cannot be
lapped up and does not commend to me
for acceptance and I am of the firm view
that
order
dismissing
the
initial
amendment application as not pressed
on account of some technical flaw would
not have the consequence of operating
as resjudicata. In the above perspective,
the order impugned herein does not
suffer from
any
error, illegality or
irregularity and as such is not liable to be
quashed.

## Text

http://www.allahabadhighcourt.nic.in
1All]
 Jagmohan Malhotra V. Jai Kumar Mishra and others
227

8. Normally, when a person
officiates on a post, he does only for a
limited period in addition to the post
which he holds, that is to say, that an
incumbent retains his original post and in
addition to it he officiates on another post.
In the present case, the petitioner has been
appointed afresh for the first time on the
post of Consolidation Lekhpal. The
petitioner was not officiating on this post
in addition to another post. Therefore, the
usage of the word-'Sthanpann' should be
read as if it was made for a limited period
on an ad hoc basis.

9. In Arun Kumar Chatterjee v.
South Eastern Railway and others (1985)
2 SCC-451, The Supreme Court explained
the meaning of the word 'Officiating' as
generally used in service parlance.

"According
to
its
ordinary
connotation, the word 'officiating' is
generally used when a servant having held
one post permanently or substantively, is
appointed to a post in a higher rank, but
not permanently or substantively, while
still retaining his lien on his substantive
post i.e. officiating in the post till his
confirmation.
Such
officiating
appointment may be made when there is a
temporary vacancy in a higher post due to
the death or retirement of the incumbent
or otherwise. In contrast, the word
'temporary' usually denotes a person
appointed in the civil service for the first
time
and
the
appointment
is
not
permanent but temporary i.e. for the time
being, with no right to the post."

10. The learned counsel for the
petitioner has invited my attention to
Annexures-11 and 12 to the writ petition
where, in similar situation, another
employee was appointed on an officiating
basis and thereafter, the respondents had
regularized his services. This fact has not
been controverted by the respondents.
Consequently, in my view, it is not open
to the respondents to take a contrary
stand. A uniform policy has to be adopted
and it is not open to the respondents to
pick and choose at their own convenience.

11. In view of the aforesaid
discussions, the writ petition is allowed
and impugned order dated 15.5.2004 is
quashed. The petitioner is entitled to the
claim of regularisation. Consequently, a
mandamus
is
issued
directing
the
respondent no. 3 to consider the petitioner
on the post of Consolidation Lekhpal by
issuing consequential orders for the
regularisation of his service within six
weeks from the date a certified copy of
this judgment is produced before him. It is
made clear that if the petitioner was not
found to be working between the period
15.5.2004 till the date of the order of the
regularisation, he shall not be paid the
salary/wages, for that period but the said
period would be included for calculating
the
length
of
service
and
other
consequential benefits of service that may
be available to the petitioner.
Petition allowed.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2005

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Revision No. 2 of 2005

Jagmohan Malhortra

 ...Defendant/Revisionist
Versus
Jai Kumar Mishra and others

 ...Opposite Parties
http://www.allahabadhighcourt.nic.in

INDIAN LAW REPORTS ALLAHABAD SERIES
[2005
 228
Counsel for the Revisionist:
Sri M.A. Qadeer
Sri B.C. Rai

Counsel for the Opposite Parties:
Sri P.K. Jain

Code of Civil Procedure-Sec. 11-'Res
judicata'-first
amendment
application
rejected as not pressed-on the ground of
technical flaw. Whether is the second
amendment application barred by the
Principle of Resjudicata? Held-'No' legal
position explained.

Held: Para 4

It is clearly borne out from a bare
perusal of the order that the first
amendment application was dismissed
as not pressed considering the ground
that
the
initial
application
for
amendment had some technical flaw and
also reckoning into consideration that
second amendment was necessitated as
a sequel to the averments made in para
27 of the written statement. In this
background, the argument cannot be
lapped up and does not commend to me
for acceptance and I am of the firm view
that
order
dismissing
the
initial
amendment application as not pressed
on account of some technical flaw would
not have the consequence of operating
as resjudicata. In the above perspective,
the order impugned herein does not
suffer from
any
error, illegality or
irregularity and as such is not liable to be
quashed.

(Delivered by Hon'ble S.N. Srivastava, J.)

1. By means of the present revision,
the applicant has impugned the orderdated 16.9.2004 passed by Addl. District
Judge (Court no. 3) Moradabad in SCC
Suit No. 8 of 2003 whereby amendment
application
40
A
of
the
plaintiff
respondents was allowed on payment of
Rs. 150/- as costs.

2. It would appear from the record
that the plaintiff respondent instituted a
SCC suit being suit no. 8 of 2003 praying
for a decree of eviction of defendants 1 to
3 from the building known as Mishra
Building
situated
at
Station
Road,
Moradabad and for payment of rent of Rs.
1045.12 together with damages at the rate
of Rs. 27,750.00 alongwith house tax and
water
tax.
The
applicant
defendant
entered appearance and filed written
statement. During the pendency of the
suit, an amendment application came to
be filed by plaintiff seeking amendment
by adding para 9 A in the plaint. The
amendment application was sought to be
dismissed as not pressed on ground that it
suffered from some technical mistake. It
would further appear that the plaintiff
made another application attended with an
affidavit the same day by which the selfsame amendment was sought to be
incorporated in the plaint averring therein
that
the
amendment
sought
to
be
incorporated, was by way of alternative
plea. An objection was filed by the
defendant tenant but the court below
allowed the amendment allowing cost of
Rs.150/- alongwith the direction that the
amendment maybe incorporated in the
plaint within seven days.

3. Heard learned counsel for the
parties. Sri M.A.Qadeer appearing for the
applicant advanced three fold arguments;
firstly that U.P. Act no. 13 of 1972 does
not extend coverage to the building in
question attended with further argument
that by way of amendment by adding para
9 A in the plaint, the defendant cannot be
extended the benefit flowing from section
20 (4) of the U.P. Act no. 13 of 1972
inasmuch as the plea christened as
"alternative plea" has the complexion of
http://www.allahabadhighcourt.nic.in
1All]
 Jagmohan Malhotra V. Jai Kumar Mishra and others
229
contradictory
plea
which
is
not
permissible in law. The second argument
advanced by the learned counsel is that
proviso to section 20 (4) of the U.P. Act
no. 13 of 1972 cannot be called in aid in
the present case as the expression
"acquired/as
acquired"
connotes
acquisition
of
any
property
during
pendency of the case and as such,
amendment application introducing the
plea as alternative plea, being not
permissible in law, cannot be sustained in
law. The third argument advanced across
the bar is that rejection of the amendment
application which was dismissed as not
pressed on ground of technical mistake,
has the force of resjudicata and the selfsame
amendment
introduced
by
subsequent amendment application cannot
be allowed and as such the impugned
order is liable to be quashed. Per contra,
Sri P.K. Jain appearing for the Opp.
Parties
contended
that
amendment
introduced was necessitated owing to plea
taken in paragraph 27 of the written
statement wherein defendant had taken
the plea of benefit of section 20 (4) of the
U.P. Act no. 13 of 1972 and as such,
proceeds the argument, the same is in the
nature of alternative plea and not a
contradictory or inconsistent plea. He
further contended that earlier application
was dismissed as not pressed in view of
technical flaw to the effect that in earlier
amendment application the expression
'alternative plea' was conspicuous by its
absence
and
that
the
expression
'alternative plea' was mentioned in the
subsequent application as a sequel to the
plea taken in para 27 of the written
statement and as such by introduction of
paragraph 9 A in the plaint, alternative
plea was engrafted. The learned counsel
further submitted that the defendant had
acquired another house i.e. House no. V
77 at Gandhi Nagar Moradabad and was
residing there and as such benefit flowing
from section 20 (4) of the U.P. Act no. 13
of 1972 cannot be extended to him in
view of proviso to section aforestated.

4. Having considered the arguments
advanced across the bar and upon perusal
of the materials on record, I am of the
view that the amendment which the trial
court allowed in the plaint does not have
any complexion of contradictory plea and
it was as a sequel to the plea taken by the
defendant in paragraph 27 of the written
statement by which benefit flowing from
section 20 (4) of the U.P. Act no. 13 of
1972 was claimed by the defendant and in
the circumstances, the trial court rightly
allowed the amendment as alternative
plea in the plaint particularly regard being
had to proviso to section 20 (4) of the
U.P. Act no. 13 of 1972 which envisages
that nothing in this sub section, shall
apply in relation to a tenant who or any
member of whose family has built or has
otherwise acquired in a vacant state, or
has got vacated after acquisition, any
residential
building
the
same
city,
municipality, notified area or town area.
In so far as argument of the learned
counsel for the applicant that after
dismissal
of
the
first
amendment
application,
the
second
amendment
application would be fraught with the
consequence of being barred by the
principles of resjudicata, is concerned, I
am unable to reconcile myself to the
argument. It is clearly borne out from a
bare perusal of the order that the first
amendment application was dismissed as
not pressed considering the ground that
the initial application for amendment had
some technical flaw and also reckoning
into consideration that second amendment
was necessitated as a sequel to the
http://www.allahabadhighcourt.nic.in

INDIAN LAW REPORTS ALLAHABAD SERIES
[2005
 230
averments made in para 27 of the written
statement.
In
this
background,
the
argument cannot be lapped up and does
not commend to me for acceptance and I
am of the firm view that order dismissing
the initial amendment application as not
pressed on account of some technical flaw
would not have the consequence of
operating as resjudicata. In the above
perspective, the order impugned herein
does not suffer from any error, illegality
or irregularity and as such is not liable to
be quashed. In the perspective of the facts
of the case, I am prompted to observe that
the defendant will have ample opportunity
to rebut the plea by filing written
statement qua the amendment introduced
in the plaint and the entire plea and
counter plea would be reckoned with by
the trial court in the course of trial of the
suit.

5. As a result of foregoing
discussion, the revision application is
devoid of merit and is accordingly
dismissed in limine.
Revision dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.02.2005

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 45619 of 2004

Vinod Kumar

 ...Petitioner
Versus
Nathu Ram

 ...Respondent

Counsel for the Petitioner:
Sri H.M. Srivastava
Sri Neeraj Srivastava

Counsel for the Respondents:
Sri Neeraj Agarwal

U.P.
Urban
Building
(Regulation
of
Letting and Rent Control) Act 1972-S.
21(1)(a)-Release application by land
lord-residential accommodation on the
ground of bonafied need as three sons
have became major-tenant's son residing
in the same-locality-No effort to find out
any
alternative
accommodation-
concurrent
finding
of
facts-No
interference.

Held: Para 5

Learned counsel for the petitioner could
not demonstrate that the findings arrived
at by the prescribed authority and
affirmed by the appellate authority suffer
from any error, much less manifest error
of law or that the findings arrived at by
the prescribed authority and affirmed by
the appellate authority are perverse. In
this view of the matter and in view of the
law laid down by the apex Court reported
in (2003) 6 S.C.C., page 675 Surya Dev
Rai Vs Ram Chander Rai and others; and
2004 (2) A.W.C., page 1721 (SC) Ranjet
Singh Vs. Ravi Prakash, I do not find this
to be a fit case for interference by this
Court in exercise of power under Article
226 of the Constitution of India, thus, in
my opinion this writ petition has no force
and is accordingly dismissed.
Case law discussed:
1984 ARC 113
2003 (6) SCC-675
2004 (2) AWC 1729

(Delivered by Hon'ble Anjani Kumar, J.)

1. By means of present writ petition
under Article 226 of the Constitution of
India, the petitioner-tenant challenges the
orders passed by the prescribed authority
as well as by the appellate authority under
the provisions of U.P. Act No.XIII of
1972,.