# Mohd. Usman v. Smt. Shagupta Begum

- **Citation:** (2023) 4 ILRA 308
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-29
- **Case number:** Matter Under Article 227 No. 2393 of 2023
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-usman-v-smt-shagupta-begum-50106
- **Pages:** 8

## Headnote

A. Civil Law - Striking off of the defence -
Code of Civil Procedure,1908 - Order XV,
Rule 5 - Under sub-rule (2) of Rule 5 of
Order XV C.P.C., striking off of the defence
is in the nature of penalty leading to
serious consequences, therefore, a serious
liability rests upon the Court in the matter
and
power
is
not
to
be
exercised
mechanically while passing the order
under sub-rule (2) of Rule 5 of Order XV
C.P.C. Even in case, representation has not
been filed under sub-rule (2) of Rule 5 of Order
XV C.P.C, it is required on the part of Court to
consider the facts and circumstances already
existing on record. (Para 19)

Impugned order dated 14.11.2022 allowed the
application 65-C and struck off the defence of
the petitioner-defendant only on the ground
that an earlier application Paper No. 41-Ga has
been rejected vide order dated 29.08.2018 and
also affirmed by High Court vide order dated
07.02.2019.

In fact, Judge, Small Causes Court has wrongly
interpreted the order of High Court dated
07.02.2019. Once the Court has granted liberty
to petitioner-defendant to challenge the order of
striking off of the defence, the implied meaning
would be that, while considering the application
to strike off the defence, it is mandatory on the
part of the court below to decide the issue
afresh, including the application Paper No. 41Ga on merits again. The order of High Court
dated 07.02.2019 has annulled the effect of
order dated 29.08.2018 passed by Judge, Small
Causes Court, with liberty to petitioner to raise
this issue again after, in case, any order has
been passed for striking off of the defence.

The spirit of the order of High Court is that, in
case of passing of fresh order for striking off of
the defence, petitioner would have full liberty to
challenge the same and court below is required
to decide the same on merits, without being
impressed with the its earlier order dated
29.08.2018. (Para 23, 24)
4 All. Mohd. Usman Vs. Smt. Shagupta Begum
309
While passing the order considering all the
evidence u/Order XV Rule 5, C.P.C. Court must
have been very conscious, as passing of such
order would take away the liberty of petitionerdefendant to lead the evidence and all other
consequences, certainly resulting into allowing
of suit without any protest. (Para 25)

Writ petition allowed. (E-4)

Precedent followed:

## Text

308 INDIAN LAW REPORTS ALLAHABAD SERIES
are concerned, reading of the same makes
it evident that the same have been passed
only on the ground that the trial Court
had passed orders impugned therein
without considering the provisions of
Order XXI Rule 29 of the Code and
therefore the petition had been allowed
remanding
the
cases
for
fresh
consideration in terms of the said
provision. A reading of the aforesaid
judgments makes it evident that no
proposition of law nor any ratio decidendi
is evident in the aforesaid judgments and
as such in the considered opinion of this
Court would not have any binding nature.

27. This Court as such is in respectful
agreement with the summary of principles
pertaining to Order XXI Rule 29 of the
Code as indicated herein-above in the case
of Sikandar Mohammad Ali Dalal
(supra) by the High Court of Karnatka.

28. In view of the aforesaid
discussion, the provisions of Order XXI
Rule 29 of the Code being inapplicable in
the present facts and circumstances of the
case, no exception can be taken to the
orders impugned.

29. Resultantly, the petition being
devoid of merits is dismissed.
----------
(2023) 4 ILRA 308
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.03.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matter Under Article 227 No. 2393 of 2023

Mohd. Usman ...Petitioner
Versus
Smt. Shagupta Begum ...Respondent
Counsel for the Petitioner:
Sri Ashish Kumar Singh, Sri Ajay Kumar Singh

Counsel for the Respondents:
Sri Prashant Rai, Sri Krishna Nand Rai

A. Civil Law - Striking off of the defence -
Code of Civil Procedure,1908 - Order XV,
Rule 5 - Under sub-rule (2) of Rule 5 of
Order XV C.P.C., striking off of the defence
is in the nature of penalty leading to
serious consequences, therefore, a serious
liability rests upon the Court in the matter
and
power
is
not
to
be
exercised
mechanically while passing the order
under sub-rule (2) of Rule 5 of Order XV
C.P.C. Even in case, representation has not
been filed under sub-rule (2) of Rule 5 of Order
XV C.P.C, it is required on the part of Court to
consider the facts and circumstances already
existing on record. (Para 19)

Impugned order dated 14.11.2022 allowed the
application 65-C and struck off the defence of
the petitioner-defendant only on the ground
that an earlier application Paper No. 41-Ga has
been rejected vide order dated 29.08.2018 and
also affirmed by High Court vide order dated
07.02.2019.

In fact, Judge, Small Causes Court has wrongly
interpreted the order of High Court dated
07.02.2019. Once the Court has granted liberty
to petitioner-defendant to challenge the order of
striking off of the defence, the implied meaning
would be that, while considering the application
to strike off the defence, it is mandatory on the
part of the court below to decide the issue
afresh, including the application Paper No. 41Ga on merits again. The order of High Court
dated 07.02.2019 has annulled the effect of
order dated 29.08.2018 passed by Judge, Small
Causes Court, with liberty to petitioner to raise
this issue again after, in case, any order has
been passed for striking off of the defence.

The spirit of the order of High Court is that, in
case of passing of fresh order for striking off of
the defence, petitioner would have full liberty to
challenge the same and court below is required
to decide the same on merits, without being
impressed with the its earlier order dated
29.08.2018. (Para 23, 24)
4 All. Mohd. Usman Vs. Smt. Shagupta Begum
309
While passing the order considering all the
evidence u/Order XV Rule 5, C.P.C. Court must
have been very conscious, as passing of such
order would take away the liberty of petitionerdefendant to lead the evidence and all other
consequences, certainly resulting into allowing
of suit without any protest. (Para 25)

Writ petition allowed. (E-4)

Precedent followed:

1. Bimal Chand Jain Vs Sri Gopal Agarwal,
(1981) 3 SCC 486, decided on 27.07.1981 (Para
13)

2. Asha Rani Gupta Vs Vineet Kumar, 2022 SCC
Online SC 829 (Para 13)

3. Gulshan Pahwa & ors. Vs Dargah Peer
Dariyanath Ji Shrawannath Nagar, Haridwar &
anr., (2022) 157 RD 573 (Para 13)

Present petition challenges the order
dated 14.11.2022, passed by Judge, Small
Causes
Court,
Saharanpur,
by
which
defence
of
petitioner-defendant
was
struck off under provision of Order XV,
Rule 5, C.P.C. and order dated 31.01.2023
passed by District Judge, Saharanpur
dismissing the SCC Revision, which was
filed
by
the
petitioner-defendant
challenging the previous order.

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Ashish Kumar Singh,
learned counsel for the petitioner and Sri
Krishna Nand Rai alongwith Sri Prashant
Rai, learned counsel for opposite party.

2. Present petition has been filed
challenging the order dated 14.11.2022,
passed by Judge, Small Causes Court,
Saharanpur in SCC Suit No. 25 of 2014, by
which defence of petitioner-defendant was
struck off under provision of Order XV,
Rule 5, C.P.C. and order dated 31.01.2023
passed by District Judge, Saharanpur
dismissing the SCC Revision No. 132 of
2022, which was filed by the petitionerdefendant challenging the order dated
14.11.2022.

3. Since, only legal question is
involved in this petition, therefore, with the
consent of parties without inviting for
affidavits, the matter is being decided at the
admission stage itself.

4. Learned counsel for the petitionerdefendant
submitted
that
plaintiffrespondent had filed SCC Suit No. 25 of
2014 before the Judge, Small Causes Court,
Saharanpur
for
arrears
of
rent
and
ejectment on the ground of default in
payment of rent. On service of summons,
petitioner-defendant has filed application
Paper No. 12-Ga dated 14.10.2014 to
deposit the rent as provided under Order
XV,
Rule
5,
C.P.C.
The
aforesaid
application was allowed vide order dated
27.10.2014 and petitioner-defendant had
deposited
rent
alongwith
interest
on
14.10.2014 for the period from 01.08.2011
to 05.08.2014 and also filed written
statement.

5. He next submitted that suit is being
contested, but due to illness of petitioner, he
could not deposit monthly rent, as provided
under Order XV, Rule 5, C.P.C., therefore, he
has filed application Paper No. 41-Ga dated
31.05.2017 for permission to deposit the
entire amount for the period from 30.09.2015
to 30.10.2017 and also presented tender for
the same. Against the said application,
objection paper No. 44-Ga dated 27.02.2018
has been filed by plaintiff-respondent and
ultimately, application Paper No. 41-Ga has
been rejected by Judge, Small Causes Court
vide order dated 29.08.2018.

6.

He
further
submitted
that
petitioner-defendant subjected to challenge
310 INDIAN LAW REPORTS ALLAHABAD SERIES
the order dated 29.08.2018 before the
District
Judge,
Sharanpur
vide
SCC
Revision No. 31 of 2018, which was
rejected vide order dated 07.01.2019 with
the finding that Trial Court has rightly
rejected the application Paper No. 41-Ga
and also rightly struck off the defence of
the
petitioner-defendant.
Petitionerdefendant has challenged both the orders
dated 29.08.2018 and 07.01.2019 before
this Court by filing Civil Misc. Writ
Petition No. 805 of 2019, which was
disposed of vide order dated 07.02.2019.
This Court, while disposing of the said writ
petition, has clarified that order impugned
dated 29.08.2018 would not amount to
order of striking off of the defence with
liberty to petitioner-defendant to challenge
the order, in case defence is struck off.

7. He next submitted that vide order
dated 24.11.2021, Judge, Small Causes
Court has suo moto struck off the defence
of petitioner-defendant, upon which, he has
filed application Paper No. 62-C-2 for
recalling the order dated 24.11.2021. The
said application was allowed vide order
dated 12.07.2022. On 10.12.2021, plaintiffrespondent has also filed application Paper
No. 65-C under Order XV, Rule 5, C.P.C.
to strike off the defence of the petitionerdefendant,
upon
which,
petitionerdefendant has filed objection Paper No. 67C dated 18.05.2022 with specific plea that
all amount due, as provided under Order
XV, Rule 5, C.P.C. has been deposited by
him and tenders have also been annexed,
therefore, the application to strike off the
defence is not maintainable.

8. He next submitted that by the
impugned order dated 24.11.2021, Judge,
Small Causes Court, after going through
the application of plaintiff-respondent
and reply of petitioner-defendant, has
struck off the defence of the petitionerdefendant only on the ground of earlier
order passed on 29.08.2018.

9. Learned counsel for the petitioner
has assailed the order dated 24.11.2021
only on the ground that once the High
Court vide order dated 07.02.2019 has
granted liberty to petitioner-defendant to
challenge the striking off of the defence
at later stage, it is required on the part of
the Judge, Small Causes Court to decide
the issue afresh and not in light of earlier
order dated 29.08.2018, which was
subject matter of Civil Misc. Writ
Petition No. 805 of 2019.

10. He firmly submitted that the
finding of the Trial Court is perverse and
also ignoring the order of the High Court
dated 07.02.2019, which has given liberty
to petitioner to challenge the order of
striking off of the defence. In fact, once
the Court has given liberty to petitionerdefendant to challenge the striking off of
the defence as and when the defence is
struck off, principle of merger shall be
applicable and, while entertaining the
application Paper No. 65-C and objection
Paper No. 67-C, it is required on the part
of Judge, Small Causes Court to decide
the applications 41-Ga and 44-Ga also
afresh, considering the circumstances
prevailing on the date of filing of
applications, ignoring the earlier order
dated 29.08.2018, as the same has lost the
effect in light of order of High Court
dated 07.02.2019.

11. It is also petitioner's case that
Order XV, Rule 5, C.P.C. provides for
filing of representation and even in case of
absence of representation, it is required on
the part of the Small Causes Court to
consider all materials available on record
4 All. Mohd. Usman Vs. Smt. Shagupta Begum
311
while passing the order for striking off the
defence.

12. He next submitted that this fact is
undisputed that on the date of filing of
application Paper No. 65-C, all amount as
required under Order XV, Rule 5, C.P.C.
had already been deposited and available
with the Court. Therefore, while passing
the impugned order 14.11.2022, the same
cannot be ignored.

13. In support of his contention,
learned counsel for the petitioner has
placed reliance upon the judgment of the
Apex Court in matter of Bimal Chand Jain
Vs. Sri Gopal Agarwal: (1981) 3 Supreme
Court Cases 486, decided on 27.07.1981,
judgment of Apex Court in the matter of
Asha Rani Gupta Vs. Vineet Kumar: 2022
SCC Online SC 829 and judgment of High
Court of Uttarakhand at Nainital in the
matter of Gulshan Pahwa and Others Vs.
Dargah Peer Dariyanath Ji Shrawannath
Nagar, Haridwar and Another: (2022) 157
RD 573.

14. Sri Krishna Nand Rai, learned
counsel for the opposite party has raised
preliminary objection to the submission of
learned counsel for the petitioner and
submitted that High Court while passing
the order dated 07.02.2019, has affirmed
the order dated 29.08.2018 passed by
Judge, Small Causes Court, by which
application of petitioner 41-Ga has been
rejected to deposit the arrears of rent as
required under Order XV, Rule 5, C.P.C.
Thereafter, District Judge has rightly
rejected SCC Revision No. 31 of 2018 filed
by petitioner-defendant vide order dated
07.01.2019, relying upon the earlier order
dated 29.08.2018. But, he could not dispute
the fact that while disposing of the writ
petition No. 805 of 2019, this Court vide
order dated 07.02.2019 has given liberty to
petitioner to challenge, if any specific order
is passed for striking off the defence of the
petitioner.

15. I have considered the rival
submissions made by the counsel for the
parties, perused the records and also
judgments relied upon.

16. Facts of the case are undisputed.
The only issue before the Court is about
interpretation of order dated 07.02.2019
passed by the High Court in Civil Misc.
Writ Petition No. 805 of 2019. Once this
Court has given liberty to petitionerdefendant to challenge the order of striking
off of the defence, what would be the effect
of the order of High Court and fate of
earlier order dated 29.08.2018 pass by
Judge, Small Causes Court.

17. Order dated 07.02.2019 passed by
the High Court in Writ Petition No. 805 of
2019 is not very lengthy and the same is
being reproduced hereinbelow:

"By impugned order dated 29.8.2018,
the trial Court in SCC Suit No. 25/2014
had rejected the application 41Ga filed by
the petitioner seeking permission to deposit
rent from 30.9.2015 to 30.6.2017. The
order has been affirmed in revision.

Counsel for the petitioner submitted
that certain observations have been made
by the Revisional Court that defence of the
petitioner has been struck off by the trial
Court, while there is no such order in
existence.

It is true that in the penultimate
paragraph of the order of the Revisional
Court, an observation has been made that
the trial Court has rightly rejected the
application 41Ga and has also rightly
struck off the defence of the petitioner. A
312 INDIAN LAW REPORTS ALLAHABAD SERIES
perusal of the order of the trial Court
reveals that it had simply rejected the
application 41Ga without their being any
specific order for striking off the defence.

It is noteworthy that the Revisional
Court has simply dismissed the revision
and has upheld the order of the trial Court,
without itself recording any independent
finding for striking off the defence.

In such view of the matter, this Court
is of the opinion that as and when any
specific order is passed by the trial Court
striking off the defence, it shall be open to
the petitioner to challenge the same, but at
the present moment, it cannot be said that
its defence stands struck off, as sought to be
urged. Consequently, this Court is not
inclined to interfere with the impugned
orders.

The petition is disposed of, subject to
the above clarification."

18. From the perusal of order of High
Court dated 07.02.2019, it is apparently
clear that the Court has not entered into
merits of the impugned order 29.08.2018,
but disposed of the petition with liberty to
petitioner-defendant
to
challenge
any
specific order, if any, passed for striking off
of the defence, meaning thereby, petitioner
was given liberty to raise all issues while
challenging the order of striking off of the
defence, which is the subject matter of
earlier order dated 29.08.2018, otherwise,
order of High Court dated 07.02.2019
would be of no effect. While declining to
interfere with the impugned order dated
29.08.2018, High Court has not given a
word in favour of order dated 29.08.2018
except liberty to petitioner to challenge the
striking off of the defence. Therefore, it is
required on the part of the Judge, Small
Causes Court to decide the application
Paper No. 65-C on merits and not relying
upon the earlier order dated 29.08.2018.

19. The Apex Court while dealing
with
the
matter
of
Bimal
Chand
Jain(Supra), has taken a firm view that
under sub-rule (2) of Rule 5 of Order XV
C.P.C., striking off of the defence is in the
nature of penalty leading to serious
consequences, therefore, a serious liability
rests upon the Court in the matter and
power is not to be exercised mechanically
while passing the order under sub-rule (2)
of Rule 5 of Order XV C.P.C. The Court
went to the extent that even in case,
representation has not been filed under subrule (2) of Rule 5 of Order XV C.P.C, it is
required on the part of Court to consider
the facts and circumstances already existing
on record. Relevant paragraphs of the said
judgment is quoted hereinbelow:

"5. It appears on the facts in this case
that no representation under sub-rule (2)
was made by the appellant. The only
question raised before us is whether, in the
absence of such representation, the court
was obliged to strike off the defence of the
appellant.
6. It seems to us on a comprehensive
understanding of Rule 5 of Order 15 that
the true construction of the Rule should be
thus. Sub-rule (1) obliges the defendant to
deposit, at or before the first hearing of the
suit, the entire amount admitted by him to
be due together with interest thereon at the
rate of nine per cent per annum and
further, whether or not he admits any
amount to be due, to deposit regularly
throughout the continuation of the suit the
monthly amount due within a week from the
date of its accrual. In the event of any
default in making any deposit, "the court
may subject to the provisions of sub-rule
(2) strike off his defence". We shall
presently come to what this means. Subrule (2) obliges the court, before making an
order for striking off the defence to
4 All. Mohd. Usman Vs. Smt. Shagupta Begum
313
consider any representation made by the
defendant in that behalf. In other words,
the defendant has been vested with a
statutory right to make a representation to
the court against his defence being struck
off. If a representation is made the court
must consider it on its merits, and then
decide whether the defence should or
should not be struck off. This is a right
expressly vested in the defendant and
enables him to show by bringing material
on the record that he has not been guilty of
the default alleged or if the default has
occurred, there is good reason for it. Now,
it is not impossible that the record may
contain such material already. In that
event, can it be said that sub-rule (1)
obliges the court to strike off the defence?
We must remember that an order under
sub-rule (1) striking off the defence is in
the nature of a penalty. A serious
responsibility rests on the court in the
matter and the power is not to be
exercised mechanically. There is a
reserve of discretion vested in the court
entitling it not to strike off the defence
if on the facts and circumstances
already existing on the record it finds
good reason for not doing so. It will
always be a matter for the judgment of
the court to decide whether on the
material before it, notwithstanding the
absence of a representation under sub-
rule (2), the defence should or should
not be struck off. The word "may" in
sub-rule (1) merely vests power in the
court to strike off the defence. It does
not oblige it to do so in every case of
default. To that extent, we are unable to
agree with the view taken by the High
Court in Puran Chand (supra). We are
of opinion that the High Court has
placed an unduly narrow construction
on the provisions of clause (1) of Rule 5
of Order 15."

20. Again, Apex Court in the matter
of Asha Rani Gupta(Supra) has taken the
same view. Relevant paragraphs of the said
judgment are quoted hereinbelow:

"37. Though the aforesaid decisions in
cases of Miss Santosh Mehta, Smt. Kamla
Devi and Manik Lal Majumdar related to
the respective rent control legislations
applicable to the respective jurisdictions,
which may not be of direct application to
the present case but and yet, the relevant
propositions to be culled out for the present
purpose are that any such provision
depriving the tenant of defence because of
default in payment of the due amount of
rent/arrears have been construed liberally;
and the expression ''may' in regard to the
power of the Court to strike out defence has
been construed as directory and not
mandatory. In other words, the Courts have
leaned in favour of not assigning a
mandatory character to such provisions of
drastic consequence and have held that a
discretion is indeed reserved with the Court
concerned whether to penalise the tenant
or not. However, and even while reserving
such discretion, this Court has recognised
the use of such discretion against the
defendant-tenant in case of wilful failure or
deliberate
default
or
volitional
nonperformance.
This
Court
has
also
explained
the
principles
in
different
expressions by observing that if the mood
of defiance or gross neglect is discerned,
the tenant may forfeit his right to be heard
in defence. The sum and substance of the
matter is that the power to strike off
defence is considered to be discretionary,
which
is
to
be
exercised
with
circumspection but, relaxation is reserved
for a bonafide tenant like those in the cases
of Miss Santosh Mehta and Smt. Kamla
Devi (supra) and not as a matter of course.
The case of Bimal Chand Jain (supra)
314 INDIAN LAW REPORTS ALLAHABAD SERIES
directly related with Order XV Rule 5 CPC
where the tenant had deposited the arrears
admitted to be due but, failed to make
regular deposits of monthly rent and failed
to submit representation in terms of subrule (2) of Rule 5 of Order XV. The defence
was struck off in that matter with the Trial
Court and the High Court taking the said
provisions of Order XV Rule 5 CPC as
being mandatory in character. Such an
approach was not approved by this Court
while indicating the reserve of discretion in
not striking off defence if, on the facts and
circumstances existing on record, there be
good reason for not doing so. The common
thread running through the aforesaid
decisions of this Court is that the power to
strike off the defence is held to be a matter
of
discretion
where,
despite
default,
defence may not be struck off, for some
good and adequate reason.

38. The question of good and adequate
reason for not striking off the defence
despite default would directly relate with
such facts, factors and circumstances
where full and punctual compliance had
not been made for any bonafide cause, as
contradistinguished from an approach of
defiance
or
volitional/elective
nonperformance."

21. High Court of Uttarakhand at
Nainital has also followed the same ratio of
law in the matter of Gulshan Pahwa and
Others(Supra). Relevant paragraphs of the
said judgment are quoted hereinbelow:

"6. Thus, it can be seen that power to
strike off defence is not to be exercised by
treating it to be a statutory mandate. Since
exercise of such power inflicts severe penal
consequences, the court has discretion not
to strike off, if on facts it finds good reason
for not doing so, therefore, the power
should be exercised after considering the
facts and circumstances appearing on the
record and in the event of their being a
representation,
after
considering
the
representation.

9. In the humble opinion of this Court,
revisional court's interference with the
order passed by learned trial court was not
warranted in the facts of the case, as it is
not obligatory for the court in every case to
strike off defence because of some delay in
deposit of admitted rent. Since learned trial
court has discretion in the matter, which
was exercised well within jurisdiction,
therefore, learned revisional court fell into
error in interfering with the order passed
by learned trial court."

22. In the present case, impugned
order has been passed upon the application
Paper
No.
65-C
filed
by
plaintiffrespondent and objection Paper No. 67-C
dated 18.05.2022, filed by the petitionerdefendant. In the objection, petitioner has
made a clear cut averment that all amount
due has already been deposited. While
passing the impugned order, Judge, Small
Causes Court has not returned any finding
upon that, but allowed the application 65-C
and struck off the defence of the petitionerdefendant only on the ground that earlier
application Paper No. 41-Ga has been
rejected vide order dated 29.08.2018 and
also affirmed by High Court.

23. In fact, Judge, Small Causes Court
has wrongly interpreted the order of High
Court dated 07.02.2019. Once the Court
has granted liberty to petitioner-defendant
to challenge the order of striking off of the
defence, the implied meaning would be
that, while considering the application to
strike off the defence, it is mandatory on
the part of the court below to decide the
issue afresh, including the application
Paper No. 41-Ga on merits again, but due
4 All. Satyabhan Singh Vs. State of U.P. & Ors.
315
to
incorrect
interpretation,
application
Paper No. 65-C was allowed only on the
ground of earlier order dated 29.08.2018,
taking away the mandate of order of the
High Court dated 07.02.2019.

24. The order of High Court dated
07.02.2019 has annulled the effect of order
dated 29.08.2018 passed by Judge, Small
Causes Court, Saharanpur, with liberty to
petitioner to raise this issue again after, in
case, any order has been passed for striking
off of the defence. The spirit of the order of
High Court is that, in case of passing of
fresh order for striking off of the defence,
petitioner would have full liberty to
challenge the same and court below is
required to decide the same on merits,
without being impressed with the its earlier
order dated 29.08.2018.

25. Even otherwise, while passing the
order considering all the evidence under
Order XV Rule 5, C.P.C. Court must have
been very conscious, as passing of such
order would take away the liberty of
petitioner-defendant to lead the evidence
and all other consequences, certainly
resulting into allowing of suit without any
protest.

26. Therefore, under such facts and
circumstances of the case, the petition is
allowed.
The
impugned
order
dated
14.11.2022, passed by Judge, Small Causes
Court, Saharanpur in SCC Suit No. 25 of
2014, and order dated 31.01.2023 passed
by District Judge, Saharanpur in SCC
Revision No. 132 of 2022 are hereby
quashed.

27. Matter is remanded back to Judge
Small Causes Court, Saharanpur to decide
afresh the application Paper No. 41-Ga,
objection paper No. 44-Ga, application
Paper No. 65-C and objection Paper No.
67-C maximum within two months from
the production of certified copy of this
order in light of observation made herein
above.

28. It is made clear that petitionerdefendant is not granted liberty to file any
fresh paper except judgments of courts.
----------
(2023) 4 ILRA 315
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.01.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Matter Under Article 227 No. 10928 of 2022

Satyabhan Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondent

Counsel for the Petitioner:
Sri Ashutosh Singh

Counsel for the Respondents:
G.A.

A. Criminal Law - Confiscation of truck -
Delhi Excise Act, 2009 - Section 61 - U.P.
Excise Act, 1910 - Sections 5(A)(2), 60, 61
& 72 - N.D.P.S. Act,1985 - Section 21/22 -
Collector is sole authority under the Act to
pass an order for confiscation/release of
vehicle so seized under the law.

Collector is vested with exclusive jurisdiction to
confiscate any such thing like animal cart or
other conveyance, if he is of opinion that this is
subject to speedy wear and tear or natural
decay or it is otherwise expedient in public
interest, whether or not prosecution charges has
been instituted or concluded while exercising
powers of confiscation provided u/s 2 and 3 of
the Act. The collector has not to wait for
conclusion of trial relating to criminal offence
under the Act and while confiscation order, he