# Employee State Insurance Corp v. B.S. Saini and another

- **Citation:** (2008) 1 ILRA 172
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-11-15
- **Case number:** Civil Misc. Writ Petition No. 40844 of 2007
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/employee-state-insurance-corp-v-b-s-saini-and-another-41263
- **Pages:** 8

## Headnote

Sri B.B. Paul
Sri A.P. Paul
Sri Braj Raj
Sri Anuj Kumar
S.C.

Constitution of India 226-writ petitionarises out from-summary (mutation)
proceeding-No right title are decidedfinding recorded in summary proceeding
neither conclusive nor binding-heldpetition not maintainable.

Held: Para 17

The present case is not covered by any of
the exceptions, in which this Court
exercises its jurisdiction under Article
226 of the Constitution of India against
an
order
arising
out
of
mutation
proceedings. The mutation courts have
decided in summary proceedings as to
whose name be recorded in the revenue
record on the basis of Will. The decisions
of the mutation court impugned in the
writ petition are subject to adjudication
of right of the parties by a competent
Court. It is well settled that findings
recorded in the mutation proceedings
are neither conclusive nor binding when
the
rights
are
adjudicated
in
a
competent
Court.
In
view
of
the
foregoing discussions, no around has
been made to entertain this writ petition
arising out of mutation proceedings in
writ jurisdiction of this Court.
Case law discussed:
2002(46) ALR564, 1972 RD 361, W.P. 43450
OF 2003 DECIDED ON 11.5. 04 1993 RD-337,
1968 RD-123 2001, RJ 522, 1956 ALJ-807,
2001 RD-166, 2003 RD-217
1 All] Employee State Insurance Corp. V. B.S. Saini and another
173

## Text

172 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
that adjudicating authority shall take
mitigating
circumstances
into
consideration,
it
should
not
act
mechanically in applying uppermost limit
of damages. The employers had pleaded
several mitigating circumstances like
reduction in business and prolonged strike
etc. The said points require consideration
by the Employees State Insurance Court/
S.D.M.

8. Direction for payment of interest
may be a mitigating circumstance and
even though it does not absolve the
employer of his liability to pay damages
under Section 85-B, however, it may be
taken into consideration for reduction of
damages and interest may be adjusted in
damages to be imposed under Section 85B.

9. Through the impugned orders, the
court below directed payment of interest.

10.

Accordingly,
appeals
are
allowed. Impugned orders are set aside.
Matter is remanded to Employees State
Insurance
Court/
S.D.M.,
Nakur,
Saharanpur for deciding the appeals in the
light of observations made above.

11. As no one has appeared on
behalf of the employers-respondents,
hence before proceeding further, the court
below shall issue notice to them.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2007

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 40844 of 2007

Smt. Pratibha Devi

...Petitioner
Versus
Additional Commissione, Varanasi and
others

...Respondents

Counsel for the Petitioner:
Sri Sankatha Rai
Sri Dr. Vinod Kumar Rai
Sri Vijay Kumar Rai

Counsel for the Respondents:
Sri B.B. Paul
Sri A.P. Paul
Sri Braj Raj
Sri Anuj Kumar
S.C.

Constitution of India 226-writ petitionarises out from-summary (mutation)
proceeding-No right title are decidedfinding recorded in summary proceeding
neither conclusive nor binding-heldpetition not maintainable.

Held: Para 17

The present case is not covered by any of
the exceptions, in which this Court
exercises its jurisdiction under Article
226 of the Constitution of India against
an
order
arising
out
of
mutation
proceedings. The mutation courts have
decided in summary proceedings as to
whose name be recorded in the revenue
record on the basis of Will. The decisions
of the mutation court impugned in the
writ petition are subject to adjudication
of right of the parties by a competent
Court. It is well settled that findings
recorded in the mutation proceedings
are neither conclusive nor binding when
the
rights
are
adjudicated
in
a
competent
Court.
In
view
of
the
foregoing discussions, no around has
been made to entertain this writ petition
arising out of mutation proceedings in
writ jurisdiction of this Court.
Case law discussed:
2002(46) ALR564, 1972 RD 361, W.P. 43450
OF 2003 DECIDED ON 11.5. 04 1993 RD-337,
1968 RD-123 2001, RJ 522, 1956 ALJ-807,
2001 RD-166, 2003 RD-217
1 All] Employee State Insurance Corp. V. B.S. Saini and another
173

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri Sankatha Rai, learned
Counsel for the petitioner and Sri B.B.
Paul, learned Counsel appearing for the
contesting respondents.

2. By this petition, the petitioner has
prayed for quashing the order dated
25.5.2007, passed by the Additional
commissioner, Administration Varanasi
Division, Varanasi dismissing the revision
No. 84 of 2005 filed by, the petitioner
under Section 219 of the Land Revenue
Act. The petitioner has also prayed for
quashing the order dated 28.3.2005
passed by the Deputy Collector Revenue,
Varanasi deciding the appeal filed by the
contesting respondent against the order
dated 22.7.2002, passed by the Naib
Tahsildar
allowing
the
restoration
application of the petitioner, setting aside
the mutation order dated 4.11.2000,
passed
by
the
Naib
Tahsildar
in
proceedings under Section 34 of the Land
Revenue Act, 1901 (hereinafter referred
to as 'Act')

3. Brief facts necessary to be noticed
for deciding the writ petition are that Smt.
Shanti Devi was recorded tenure holder.
An unregistered Will deed dated 1.1.2000
is claimed to have been executed by Smt.
Shanti Devi in favour of the petitioner.
Another unregistered Will dated 8.3.2000
is said to have been executed by Smt.
Shanti Devi in favour of contesting
respondents. Smt. Shanti Devi died on
9.3.2000
at
Bombay.
A
mutation
application under Section 34 of the Act
was filed by the contesting respondents on
the basis of Will dated 8.3.2000. The Naib
Tahsildar vide order dated 30.5.2000
allowed the mutation application of the
respondents mutating their names. An
application dated 4.11.2000 was filed by
the petitioner, seeking recall of the order
dated 30.5.2000 of Naib Tahsildar,
mutating the name of the contesting
respondents. The Naib Tahsildar vide his
order dated 22.7.2000 set aside the order
dated 30.5.2000 and restored the mutation
application. An appeal was filed by the
contesting respondents against the order
dated 22.7.2000 before the Sub Divisional
Officer. The Sub Divisional Officer
passed an order on 2.8.2000, treating the
appeal to be maintainable and directed
that the case be, decided by the appellate
authority and both the parties may led
their evidence. Both the parties led their
evidence and after hearing the parties and
considering the evidence, the Deputy
Collector vide his order dated 28.3.2005
allowed the claim of the contesting
respondents and directed mutation of their
names in place of Smt. Shanti Devi on the
basis of the Will dated 8.3.2000. The
revision was filed by the petitioner under
Section 219 of the Act against the order
dated 28.3.2005, which having been
dismissed by the revisional Court, this
writ petition has been filed challenging
the aforesaid orders.

4. Sri B.B. Paul, learned Counsel for
the contesting respondents raised a
preliminary
objection
regarding
maintainability of the writ petition on the
ground that the orders impugned in the
writ petition have been passed in the
proceedings under Section 34 of the Act,
which are summary in nature hence, the
writ petition under Article 226 of the
Constitution of India is not maintainable.
Learned Counsel for the contesting
respondents relied on various decisions of
this Court which would be referred, while
174 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
considering the respective submissions of
learned Counsel for the parties.

5. Sri Sankatha Rai, learned counsel
for the petitioner refuting the preliminary
objection of the learned Counsel for the
contesting respondents, contended that the
writ petition is fully maintainable under
Article 226 of the Constitution of India.
He submits that the order passed by the
Deputy Collector dated 28.3.2000 in
appeal
filed
by
the
contesting
respondents, was an order passed without
jurisdiction since no appeal lay under the
U.P. Land Revenue Act against the order
dated 22.7.2002, passed by the Naib
Tahsildar
allowing
the
restoration
application. Sri Sankatha Rai referred to
sections 201,210 and 211 of the U.P.
Land Revenue Act and contended that
appeal against the order dated 22.7.2002,
passed by the Naib Tahsildar was not
maintainable hence, error has been
committed by the Sub Divisional Officer
in allowing the appeal. He furtherer
contended that the Sub Divisional Officer
did not consider the evidence of the
parties properly and has arrived at
erroneous conclusion that unregistered
Will dated 8.3.2000 is proved. Learned
Counsel for the petitioner has also placed
reliance on various judgments of this
Court which would be referred to
hereinafter,
while
considering
the
submissions in details.

6. I have considered the submissions
of the learned counsel for the parties and
have perused the record.

7. This writ petition arises out of the
proceedings under Section 34 of the Land
Revenue Act. This Court in exercise of its
writ jurisdiction under Article 226 of the
Constitution of India, normally does not
entertain a writ petition against the orders
passed in summary proceedings under
Section 34 of the Land Revenue Act. The
question regarding maintainability of the
writ petition against the orders passed in
mutation proceedings and the cases in
which the Court can entertain the writ
petition, came up for consideration before
this Court in several cases. I had an
occasion to consider the issue in Lal
Bachan Vs. Board of Revenue, U.P.
Lucknow and others, reported in 2002
(46) ALR 564. After considering the
judgments of this Court and Apex Court
following was laid down in paragraphs
11,12,13 and 16.

"11. This Court has consistently
taken the view as is apparent from the
decisions of this Court referred above that
writ petition challenging the orders
passed in mutation proceedings are not to
be entertained. To my mind apart from
there being remedy of getting the title
adjudicated in regular suit there is one
more reason for not entertaining such
writ petition. The orders passed under
section 34 of the Act are only based on
possession which do not determine the
title of the parties. Even if this Court
entertains the writ petition and decide the
writ petition on merits, the orders passed
in mutation proceedings will remain
orders in summary proceedings and the
orders passed in the proceedings will not
finally determine the title of the parties.
12. In
view
of
the
above
discussions, it is clear that although the
writ petition arising out of the mutation
proceedings cannot be held to be nonmaintainable but this Court do not
entertain the writ petition under Article
226 of the Constitution due to reason that
parties have right to get the title
adjudicated by regular suit and the orders
1 All] Pratibha Devi V. Addl. Commissioner and others
175
passed in mutation proceedings are
summary in nature.
13. The second question which
needs to be considered is as to in what
circumstances the writ petition can be
entertained arising out of the mutation
proceedings. The Division Bench of this
Court in Jaipal's case (supra) has
referred to "exception" to the general
rule in the following words:
"The only exception to this general
rule is in those cases in which the entry
itself confers a title on the petitioner by
virtue of the provisions of the U.P.
Zamindari Abolition and Land Reforms
Act. This petition does not fall in that
class and we think therefore this Court
should not entertain it. It is accordingly
dismissed with costs."

8. The writ petition against the order
passed in mutation proceedings can be
entertained in case the order passed is
held to be an order passed without
jurisdiction. The submission of Sri
Sankatha Rai, learned counsel for the
petitioner to bring the present case in one
of the exceptions as recognized for
entertaining the writ petition against the
mutation proceedings is; that the appeal
before the Sub Divisional Officer against
the order dated 22.7.2002, was without
jurisdiction which can very well be
interfered with in the present writ petition.
Thus the appeal filed by the contesting
respondents against the order dated
22.7.2002 of the Naib Tahsildar before
the
Sub
Divisional
Officer
was
maintainable or not?

9. As noticed above, the Naib
Tahsildar
passed
the
order
dated
30.5.2000,
allowing
the
mutation
application
filed
by
the
contesting
respondents. A restoration application
was filed by the petitioner for recall of the
said
order
on
4.11.2000,
which
application was allowed on 22.7.2002 by
setting aside the order dated 30.5.2000.
The appeal before the Sub Divisional
Officer was filed against the order dated
22.7.2002. Section 200 and 201 of the
U.P. Land Revenue Act in this context is
relevant to note.

"200. Hearing in absence of party.-
Whenever any party to such proceeding
neglects to attend on the day specified in
the summons or on any day to which the
case may have been postponed, the court
may dismiss the case for default or may
hear and determine it ex parte.

201. No appeal from orders passed ex
parte or by default.- No appeal shall lie
from an order passed under Section 200
exparte or by default.

Re-hearing on proof of good cause for
nonappearance.- But in all such cases, if
the party against whom judgment has
been given appears either in person or by
agent (if a plaintiff within fifteen days
from the date of such order, and if a
defendant, within fifteen days after such
order has been communicated to him, or
after any process for enforcing the
judgment has been executed or at any
earlier period), and shows good cause for
his nonappearance, and satisfies the
officer making the order that there has
been a failure of justice, such officer may,
upon such terms as to costs or otherwise
as he thinks proper, revive the case and
alter or rescind the order according to the
justice of the case:

Order not to be altered without summons
to adverse party.- Provided that no such
order shall reversed or altered without
176 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
previously summoning the party in whose
favour judgment has been given to appear
and be heard in support of it."

10. Section 201 of U.P. Land
Revenue Act provides that no appeal shall
lie from an order passed under Section
200 ex-parte or by default. The order
dated 30.5.2000 of the Naib Tahsildar
allowing the mutation of the respondents,
was an order allowing the mutation
exparte.
Against
the
order
dated
30.5.2000,
thus,
appeal
was
not
maintainable by virtue of section 201. In
the present case, appeal was not filed
against the order dated 30.5.2000, rather
the appeal was filed against an order by
which the application of the petitioner for
setting aside the ex-parte order was
allowed. Section 201 itself provides that
if, party against whom judgment has been
given ex-parte satisfy that there was good
cause for his non-appearance, the order
can be set aside. Present is a case where
the application under Section 201 was
made by the petitioner for recall of the
order and the order dated 22.7.2002 was
an order passed under Section 201
allowing the restoration application.

Sections 210 and 211 provides for
appeal. Section 210 and 211 is quoted
herein below.

"210. Courts to which appeals lie.-
(1) Appeal shall lie under this Act as
follows:

(a) to the Record Officer from orders
passed by any Assistant Record Officer;

(b) (i) to the Commissioner from orders
passed by a - Collector or an Assistant
Collector first class or Assistant Collector
in charge of sub-division,
(ii) to the Collector from orders passed
by an Assistant Collector second class or
Tahsildar.

(6) No appeal shall lie against an order
passed under Section 28,33, 39 or 40."
211. First Appeal.- Unless an order is
expressly made final by this Act, an
appeal shall lie to the court authorised
under Section 210 to hear the same from
every original order under Section 210 to
hear the same from every original order
passed in any proceedings held under the
provisions of this Act."

11. According to section 210 (1) (b)
(ii) an appeal shall lie to the Collector
from an order passed by the Tahsildar.
Section 211 provides that unless an order
is specifically made final by the Act, the
appeal shall lie to the Court authorized
under Section 210 to hear from every
original order passed in any proceedings
held under the provisions of this Act. The
proceeding for recall of an ex-parte order
under Section 201 is a proceeding
contemplated under Section 211. The
order passed under Section 201 allowing
an application setting aside ex-parte order
has not been made final by any provisions
of the Act hence, the said order is
appealable under Section 211 of the Act.

12. Learned Counsel for the
petitioner in support of his submission has
placed reliance on judgment of this Court
in the case of Kundan Vs. Board of
Revenue reported in 1972 R.D. 361,
Laxman Vs. State of U.P.& others, Civil
Misc. writ petition No. 43450 of 2003,
decided on 11.5.2004, Nawab Singh and
others
Vs.
Deputy
Director
of
Consolidation and others, reported in
1993
R.D.
337,
Mst.
Isharaji
Vs.
Commissioner 1968 R.D. 123, Jokhu Vs.
1 All] Pratibha Devi V. Addl. Commissioner and others
177
Deputy Director of Consolidation and
others, reported in 2001 RJ 522.

13. In the case of Kundan (supra),
the Court was considering the provisions
of section 144 (2) C. P.C. The court held
that where an ex-parte decree is set aside,
it cannot be said that the decree has been
varied or reversed. The question in that
case was as to whether section 144(2)
C.P.C. will be applicable or not. The issue
which has arisen in the present case was
neither
considered
nor
any
such
proposition has been laid down that
against an order setting aside an ex-parte
order, passed under Section 200 U.P.
Land Revenue Act, an appeal shall not lie.
The next judgment relied upon by learned
Counsel for the petitioner is the judgment
of this Court in the case of Laxman
(supra). In the case of Laxman, the Naib
Tahsildar has rejected the application for
recall of the mutation order. The writ
petition was entertained only on the
ground; as to whether Naib Tahsildar
committed
error
in
rejecting
the
application when sufficient grounds were
made out for recall of the order.
Following was observed by this Court:

"There is no dispute that writ petition
arises out of summary proceeding. The
consistent view of this Court has been that
writ petition arising out of mutation
proceedings
cannot
be
entertained
because the findings and orders passed by
mutation courts are always subject to
decision by a competent Court. In the
present case. This is not examining the
merits of the order passed by Naib
Tahsildar dated 23rd August, 1985. The
petitioners' counsel has confined his
submission only on the aspect that the
said order was ex-parte and Naib
Tahsildar
erroneously
rejected
the
application to recall the order on the
ground that summons were served. In
view of the aforesaid, the writ petition has
been entertained only for a limited
purpose to examine as to whether the
order passed by Naib Tahsildar dated 23rd
August, 1985 deserved to be recalled or
not. For other issues which were sought
to be raised in the writ petition, it is not
necessary to express any opinion or to
enter into the said issues."

14. In the above case the issue was
not involved as to whether against an
order allowing the restoration application
under Section 201 of the Act appeal was
barred or not. The said case does not help
the petitioner in any manner. Another
case relied upon by learned Counsel for
the petitioner is Nawab Singh (supra). In
the said case the Court was examining as
to whether by virtue of section 41 of the
U.P. Consolidation of Holdings Act, the
provisions of section 210 of the U.P. Land
Revenue
Act
were
applicable
in
consolidation
proceedings.
Learned
Single Judge held that remedy for setting
aside ex-parte order is available to an
aggrieved party under Section 201 of the
U.P. Land Revenue Act which has been
made applicable to the proceedings under
the U.P. Consolidation of Holdings Act
by virtue of section 41. The issue which
has arisen in the present case, was not
considered in that case hence, the said
case will not help the petitioner. The next
case relied upon by learned Counsel for
the petitioner is Mst. Isharaji (supra). The
question in the said case was as to
whether a decision on objection passed
ex-parte or in default, is appealable under
Section 11 of the U P Consolidation of
Holdings Act. This Court considered the
provisions of U.P. Consolidation of
Holdings Act including section 41 as sell
178 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
as section 201 of U. P. Land Revenue Act
and came to the conclusion that all kinds
of the orders passed by the Consolidation
Officer are appealable under Section 11 of
the U.P. Consolidation of Holdings Act
and section 201 excluding an appeal
against an order passed ex-parte is not
attracted. Following was laid down in
paragraph 5 of the said judgment:

"5. Section 41 of the Consolidation
of Holdings Act opens with the phrase
"Unless otherwise expressly provided by
or under this Act." So far as the
applicability of section 210 is concerned
if
any
other
provision
of
the
Consolidation of Holdings Act provides
for an appeal against an order passed
exparte or by default then section 202 will
not apply. Its applicability would be
excluded by the opening part of Section
41. Section 11 of the Consolidation of
Holdings Act is general. It provides an
appeal against all kinds of orders of the
Consolidation
Officer
passed
under
Section 10 of the Act. ... .."

15. The last case relied on by
learned Counsel for the petitioner is
Jokhu (supra). The issue raised in that
case was as to whether the Deputy
Director of Consolidation had power to
hear the case against exparte order and
had also power to recall the ex-parte
order. This Court came to the conclusion
that power to set aside ex-parte order is
provided under Section 201 of the U.P.
Land Revenue Act, is available to the
Deputy Director of Consolidation by
virtue of section 41 of the U.P.
Consolidation of Holdings Act. Following
was laid down in paragraph 9

9. The power to set aside ex parte
order has been conferred in Section 201
of the UP. Land Revenue Act on all the
authorities and, therefore, in my opinion
the Deputy Director of Consolidation
under the UP. Consolidation of Holdings
Act, Section 41 read with Section 201 of
the UP. Land Revenue Act, 1901 has the
power to proceed ex parte and for
recalling of the ex parte orders on good
cause
being
shown
for
nonappearance........"

16. In view of the foregoing
discussions, it is clear that none of the
cases relied on by learned counsel for the
petitioner in support of his submission
that against an order passed by the Naib
Tahsildar under Section 201 of the U.P.
Land Revenue Act, recalling a mutation
order appeal to the Deputy Collector is
barred. Thus, submission of the learned
Counsel for the petitioner that the order of
the appellate authority dated 28.3.2005
was without jurisdiction, cannot be
accepted.

17. Learned Counsel for the
respondents have placed reliance on
judgments of this Court in the case of
Jaipal Minor Vs. Board of Revenue,
reported in 1956 ALJ 807, Kunj Bihari
Vs. Board of Revenue, reported in 2001
R.D. 166, Ishu Vs. State of U.P, reported
in 2003 R.D. 217 for the proposition that
against mutation proceedings which are
summary in nature, the writ petition under
Article 226 of the Constitution of India is
not maintainable. As noted above in Lal
Bachan Singh (supra), this Court had
laid down that normally the writ petition
challenging the mutation proceedings is
not entertained since they are summary
proceedings which do not decide any
question of title and they are always
subject to adjudication by competent
Court. The present case is not covered by
1 All] Pratibha Devi V. Addl. Commissioner and others
179
any of the exceptions, in which this Court
exercises its jurisdiction under Article 226
of the Constitution of India against an
order arising out of mutation proceedings.
The mutation courts have decided in
summary proceedings as to whose name
be recorded in the revenue record on the
basis of Will. The decisions of the
mutation court impugned in the writ
petition are subject to adjudication of
right of the parties by a competent Court.
It is well settled that findings recorded in
the mutation proceedings are neither
conclusive nor binding when the rights
are adjudicated in a competent Court. In
view of the foregoing discussions, no
around has been made to entertain this
writ petition arising out of mutation
proceedings in writ jurisdiction of this
Court.

18. Subject to observation as made
above, the writ petition is dismissed.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.11.2007

BEFORE
THE HON'BLE (MRS.) SAROJ BALA, J.

Criminal Revision No. 1954 of 2003

Raj Dei

...Plaintiff/Revisionist
Versus
Ram Lakhan ...Opposite Party/Defendant

Counsel for the Revisionist:
Sri Dr. Pradeep Kumar Misra

Counsel for the Opposite Party:
Sri R.P. Singh
A.G.A.

Code of Criminal Procedure- Section125(4)-Maintenance-wife
living
adultery at the time of filing applicationnot proved-finding recorded by the
Family Court-regarding birth of child out
of adulterous relationship-baseless-can
not sustain-revisionist/wife entitled for
maintenance.

Held: Para 7
The statement of the opposite party was
silent on the point that his wife was
living in adultery on the date the
application was made. In view of these
facts the conclusion drawn by the
Principle Judge Family Court that the
revisionist is living in adultery and child
was
the
outcome
of
adulterous
relationship cannot be sustained.
Case law discussed:
1985 Crl.L.J. 1923 (All), 1990 DMC 533, 1990
(1) DMC 38 (All), 1991 (2) DMC 422 (M.P.),
1993 Crl. L.J. 238, 1996 (2) Mah.L.J. 341

(Delivered by Hon'ble (Mrs.) Saroj Bala, J.)

1. This criminal revision is directed
against the judgment and order dated
24.4.2003 passed by the Principal Judge
Family Court Azamgarh in case crime no.
23 of 1995 Smt. Raj Dei and another Vs.
Ram Lakhan whereby declining to grant
maintenance under the provisions of
section 125 of the Code of Criminal
Procedure (hereinafter referred to as the
'Code').

The facts giving rise to this revision
are these:

2. The revisionist was married to the
opposite party about 25-26 years before
the presentation of maintenance petition.
The Gona ceremony took place 5-6 years
after the marriage. It was alleged that a
son was born to her few years after the
Gona ceremony out of the wedlock of
opposite
party.
According
to
the
revisionist there was change in the
behaviour of opposite party and he started