# Tarun Kumar Srivastava v. Gur Bux Singh & Ors

- **Citation:** (2019) 2 ILRA 1575
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-14
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tarun-kumar-srivastava-v-gur-bux-singh-ors-44607
- **Pages:** 6

## Headnote

Code of Civil Procedure, 1908- Order XLI
Rule 27-Petitioner's application under Order
41 Rule 27 C.P.C. was allowed by appellate
court permitting to bring on record the
proceedings and judgment pertaining to
Regular Suit No.222/2002-consequentially an
application for amendment of memorandum of
appeal was filed- rejected- on the ground that
it would delay proceedings-cannot be a valid
or cogent ground for rejection-overlooking the
necessity of incorporating it in the interest of
justice.
1576 INDIAN LAW REPORTS ALLAHABAD SERIES
Held -: the natural consequence would be
amendment to memorandum of appeal in
order to enable appellant to take the grounds
available to him and relating to bringing on
record such additional evidence. In case such
amendment in the memorandum of appeal is
not permitted, the entire purpose of allowing
the application under Order 41 Rule 27 C.P.C.
would stand defeated. The Learned Court
below had completely ignored the necessity of
incorporating
amendment
as
sought
by
appellant and the application has been
rejected only on the ground that it would delay
proceedings. The said ground cannot be a
valid or cogent ground for rejecting the
application
for
amendment.
Amendment
application should have been allowed by
appellate court.

Writ Petition Allowed (E-8)

## Text

2 All. Tarun Kumar Srivastava Vs Gur Bux Singh & Ors.
1575
and the distribution licensee has a
corresponding statutory obligation to
supply electricity to the appellant."

We find merit in the contention
of the petitioner that the impugned order
dated 2 August 2014 contains no reason
for the denial of electric supply, save and
except for making a reference to the
provisions of Clause 4.4 of the Electricity
Supply Code-20053. Clause 4.4 of the
Code-2005 is in aid of the statutory duty
cast by Section 43 of the Act of 2003.

As
a
matter
of
fact,
an
Indemnity Bond, a proforma of which is
contained in Annexure 4.2 of the Code2005, deals with a situation where an
occupier of the premises applies for the
grant of an electricity connection, but is
unable to produce the consent of the
owner. Obviously, in a situation, where a
dispute is between the owner and
occupier (in the present case, the dispute
is between members of a family), a
provision has been made for furnishing an
Indemnity Bond. The record would, in
fact, indicate that on 21 July 2014, the
petitioner had furnished an Indemnity
Bond, describing herself as an occupier of
the premises and said that she was unable
to obtain the consent of the owner in view
of the pendency of the litigation before the
Court.
Despite
this,
the
Executive
Engineer has acted in breach of the
statutory obligation, which is cast on a
distribution licensee to provide supply of
electricity. The impugned order reveals a
total non-application of mind and an
unawareness of the obligation, which is
cast by Section 43 of the Act of 2003 on
the distribution licensee.

8. In view of the above, we are not
able to sustain the order dated 1.7.2019
and accordingly we hereby set-aside the
same. The matter is remitted to the
authority competent to grant electricity
connection and to consider the application
of the petitioner on the basis of Indemnity
Bond filed and the Rashan Card and the
Adhar Card produced before it. Necessary
positive orders and direction for providing
electricity connection shall be passed, if
otherwise there is no legal impediment,
within a period of two weeks from the date
of production of certified copy of this order.

9. The petition stands allowed as
indicated above.
----------

(2019)10ILR A 1575

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.10.2019

BEFORE

THE HON'BLE MANISH MATHUR, J.

Misc. Single No.- 22407 of 2019

Tarun Kumar Srivastava ...Petitioner
Versus
Gur Bux Singh & Ors. Respondents

Counsel for the Petitioner:
Shriya Saxena, Sri Utkarsh Srivastava.

Counsel for the Respondents:
--------

Code of Civil Procedure, 1908- Order XLI
Rule 27-Petitioner's application under Order
41 Rule 27 C.P.C. was allowed by appellate
court permitting to bring on record the
proceedings and judgment pertaining to
Regular Suit No.222/2002-consequentially an
application for amendment of memorandum of
appeal was filed- rejected- on the ground that
it would delay proceedings-cannot be a valid
or cogent ground for rejection-overlooking the
necessity of incorporating it in the interest of
justice.
1576 INDIAN LAW REPORTS ALLAHABAD SERIES
Held -: the natural consequence would be
amendment to memorandum of appeal in
order to enable appellant to take the grounds
available to him and relating to bringing on
record such additional evidence. In case such
amendment in the memorandum of appeal is
not permitted, the entire purpose of allowing
the application under Order 41 Rule 27 C.P.C.
would stand defeated. The Learned Court
below had completely ignored the necessity of
incorporating
amendment
as
sought
by
appellant and the application has been
rejected only on the ground that it would delay
proceedings. The said ground cannot be a
valid or cogent ground for rejecting the
application
for
amendment.
Amendment
application should have been allowed by
appellate court.

Writ Petition Allowed (E-8)

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Sri Utkarsh Srivastava,
learned counsel for the petitioner and Sri
Manoj Kumar Dubey, Advocate who has
filed his power on behalf of opposite parties
1 and 3. The power is taken on record. It is
admitted between learned counsel for parties
that opposite parties 2 and 4, though not
served, are merely proforma for the purposes
of adjudication of present petition which may
be heard finally without notices being served
upon them. However, it is a relevant fact that
earlier vide order dated 26.08.2019, notices
had been issued to the said opposite parties
and office report dated 04.10.2019 indicates
that undelivered notices have not yet been
received back indicating service of notice
upon opposite parties 2 and 4. However, in
terms of explanation to Rule 12 Chapter VIII
of the Rules of this Court, service of notices
upon opposite parties 2 to 4 is deemed
sufficient.

2. Learned counsel for opposite
parties 1 and 3 states that he is waving his
right to file counter affidavit and that the
petition may be disposed of on basis of
material on record. Due to such statement,
the petition is being decided finally at
admission stage itself with consent of
learned counsel for the parties.

3. Under challenge is the order dated
08.07.2019 passed by Additional District
Judge (PC Act-I), Lucknow in Regular
Civil Appeal No.137 of 2014 (Tarun
Kumar Srivastava v. Gur Bux Singh and
others) whereby Application No.A-146
seeking amendment in the memorandum
of appeal has been rejected.

4. As per averments made in the
petition, the plaintiffs-opposite parties 1
to 3 instituted Regular Suit No.56 of 2009
(Gurbux Singh & others v. Smt. Neeta
Dua and another) against opposite party
no.4 and the petitioner who were
defendants in the said suit, which was
filed seeking relief of possession and
damages in relation to some property
situate at Aishbagh, Lucknow. The said
suit was decreed vide judgment and
decree
dated
07.04.2014
whereafter
Regular Civil Appeal No.137 of 2014
(Tarun Kumar Srivastava v. Gur Bux
Singh and others)was filed.

5. It has been stated that earlier
another Regular Suit No.222/2002 (M/s
Lala Timber Traders v. Guru Bux Singh)
seeking the relief of permanent injunction
with regard to the same property in
question. The said suit was decreed vide
judgment and decree dated 08.08.2014,
i.e. after the judgment and decree passed
in Regular Suit No.56 of 2009.

6. It has been stated that due to the
subsequent development, the petitionerdefendant filed an application under
Order 41 Rule 27 of C.P.C. in Regular
2 All. Tarun Kumar Srivastava Vs Gur Bux Singh & Ors.
1577
Civil Appeal No.137 of 2014 bringing on
record the details of Regular Suit
No.222/2002 along with judgment and
decree dated 08.08.2014. The application
under Order 41 Rule 27 C.P.C. was
allowed by means of an order dated
02.05.2018, which became final.

7. Subsequent to allowing of
application under Order 41 Rule 27
C.P.C., the petitioner filed an application
for amendment of memorandum of appeal
in Regular Civil Appeal No.137 of 2014.
The same has been rejected by means of
the impugned order dated 08.07.2019.

8. Learned counsel for petitioner
challenging the reasoning indicated in the
impugned order submitted that once
application under 41 Rule 27 C.P.C. was
allowed and became final, the application
seeking to amend memorandum of appeal
was but a natural consequence thereof
particularly in view of the fact that
judgment and decree in Regular Suit
No.222/2002 was passed subsequent to
the judgment and decree dated 07.04.2014
in Regular Suit No.56 of 2009. It has been
further submitted that only a single
ground is sought to be incorporated in
memorandum of appeal particularly in
view of the provisions of Order 41 Rule 2
C.P.C. to the effect that no submissions
can be advanced or evidence led in
absence of specific pleadings for the
same.

9. Learned counsel for petitioner has
relied upon judgments rendered by
Hon'ble the Supreme Court in State of
Maharashtra
v.
Hindustan
Construction Company Ltd. reported in
(2010) 4 SCC 518, P. Kunjukrishna
Pillai and others v. D. Sreekantan Nair
and others passed in Civil Appeal
No.4439 of 2008 and Andhra Bank v.
ABN Amro Bank N.V. and others
reported in (2007) 6 SCC 167 with the
submission that Hon'ble the Supreme
Court has clearly held that amendment is
permissible to be incorporated in the
memorandum of appeal if required to do
absolute justice between the parties.

10. Learned counsel for petitioner
has also submitted that the amendment
application has been rejected on the only
ground that it would delay proceedings
while completely ignoring necessity of
such amendment to be incorporated in the
memorandum of appeal.

11. Learned counsel appearing on
behalf of opposite parties 1 and 3 while
refuting submissions advanced by learned
counsel for the petitioner has submitted
that
proceedings
of
Regular
Suit
No.222/2002 were already pending at the
time of institution of Regular Suit No.56
of 2009 and therefore, pleadings sought to
be
incorporated
by
means
of
the
amendment application could very well
have been taken at trial stage itself. The
said fact was not brought on record at trial
stage due to which no issue was framed
with regard to same, which clearly
indicates that such amendment being
sought to be incorporated at appellate
stage is being done only for purposes of
delaying the proceedings which have
already been pending for the past five
years.

12. Heard learned counsel for parties
and perused the record.

13. It is admitted fact that although
Regular Suit No.222/2002 was instituted
by the petitioner prior to filing of Regular
Suit No.56 of 2009 but the said Regular
1578 INDIAN LAW REPORTS ALLAHABAD SERIES
Suit No.222/2002 was actually decided
finally subsequent to the decision in
Regular Suit No.56 of 2009. It was in
these circumstances that application under
Order 41 Rule 27 C.P.C. was filed by
petitioner at the appellate stage and was
allowed by means of order dated
2.05.2018 which remains unchallenged.

14. It is a relevant fact that
application under Order 41 Rule 27
pertained to proceedings of Regular Suit
No.222 of 2002 and by means of the said
application, documents filed in said suit
were brought on record along with
judgment and decree dated 08.08.2014.

15. In the application filed for
amendment of memorandum of appeal, it
has been stated that in Regular Suit
No.222/2002, the defendant (opposite
parties in this petition) also filed written
statement
with
counter
claim
but
thereafter did not participate in the
proceedings
thereby
abandoning
the
counter claim which, therefore, precluded
them from filing another suit. It was
stated
that
in
view
of
the
said
proceedings, and particularly in view of
allowing
of
application
for
taking
additional evidence, amendment to the
memorandum of appeal is required, to do
complete justice between the parties.

16. It is thus clear that once the
application under Order 41 Rule 27
C.P.C. was allowed by appellate court
permitting the appellant to bring on record
the proceedings and judgment pertaining
to Regular Suit No.222/2002, the natural
consequence would be amendment to
memorandum of appeal in order to enable
appellant to take the grounds available to
him and relating to bringing on record
such additional evidence. In case such
amendment in the memorandum of appeal
is not permitted, the entire purpose of
allowing the application under Order 41
Rule 27 C.P.C. would stand defeated.

17. A perusal of impugned order
dated 08.07.2019 clearly indicates only
reason for rejecting the amendment
application as being delay in deciding the
appeal due to allowing of amendment
application. The court below has not at all
appreciated the effect and purpose of the
amendment sought to be incorporated in
memorandum of appeal, which it was
necessarily required to do. Rejecting
amendment application merely on the
ground that it would delay proceedings
cannot be said to be a cogent ground
without adverting to the purpose, effect
and necessity of the amendment sought to
be incorporated.

18. Hon'ble the Supreme Court in
the case of Andhra Bank v. ABN Amro
Bank N.V. and others(supra) has clearly
held that delay in filing application for
amendment of the written statement
cannot stand in the way of allowing the
prayer
for
amendment
of
written
statement. It has also been held that while
allowing an application for amendment of
pleadings, the Court cannot go into the
question of merit of such amendment and
that the only question required to be seen
would be whether such amendment would
be necessary for decision of the real
controversy between parties in the suit.
Relevant paragraphs of the judgment is
quoted as follows :

"Since, we are of the view that
delay is no ground for not allowing the
prayer for amendment of the written
statement and in view of the submissions
made by Mr Kapadia, we do not think that
2 All. Tarun Kumar Srivastava Vs Gur Bux Singh & Ors.
1579
delay in filing the application for
amendment of the written statement can
stand in the way of allowing the prayer
for amendment of the written statement.
So far as the second ground is concerned,
we are also of the view that while
allowing an application for amendment of
the pleadings, the Court cannot go into the
question of merit of such amendment. The
only question at the time of considering
the amendment of the pleadings would be
whether such amendment would be
necessary for decision of the real
controversy between the parties in the
suit.?

19.

In
P.
Kunjukrishna
Pillai(supra), Hon'ble the Supreme Court
has held that an amendment application
cannot be rejected only for the ground
that it was not filed before the trial
commenced.

20. In State of Maharashtra v.
Hindustan
Construction
Company
Ltd.(supra) Hon'ble the Supreme Court
has clearly held that provisions in Civil
Procedure Code leave no manner of doubt
that the appellate court has power to grant
leave to amend memorandum of appeal.
The relevant potion of the judgment reads
as follows :

"23. Do the principles relating
to amendment of pleadings in original
proceedings apply to the amendment in
the grounds of appeal? Order 41 Rule 2
CPC makes a provision that the appellant
shall not, except by leave of the court,
urge or be heard in support of any ground
of objection not set forth in the
memorandum of appeal; but the appellate
court, in deciding the appeal, shall not be
confined to the grounds of objections set
forth in the memorandum of appeal or
taken by leave of the court. Order 41 Rule
3
CPC
provides
that
where
the
memorandum of appeal is not drawn up
as prescribed, it may be rejected, or be
returned to the appellant for the purpose
of
being
amended.
The
aforesaid
provisions in CPC leave no manner of
doubt that the appellate court has power
to grant leave to amend the memorandum
of appeal."

"24. As a matter of fact, in
Harcharan v. State of Haryana [(1982) 3
SCC 408] , this Court observed that the
memorandum of appeal has the same
position as the plaint in the suit. This
Court said:

"5....
When
an
appeal
is
preferred the memorandum of appeal has
the same position like the plaint in a suit
because plaintiff is held to the case
pleaded in the plaint. In the case of
memorandum of appeal same situation
obtains in view of Order 41 Rule 3. The
appellant is confined to and also would be
held to the memorandum of appeal. To
overcome any contention that such is not
the pleading the appellant sought the
amendment.?

21. Upon applicability of the
aforesaid judgments in the facts and
circumstances of present case, it can be
seen that the learned court below had
completely ignored the necessity of
incorporating amendment as sought by
appellant and the application has been
rejected only on the ground that it would
delay proceedings. As seen from the
judgments of Hon'ble the Supreme Court
indicated hereinabove, the said ground
cannot be a valid or cogent ground for
rejecting the application for amendment.

22. In view of the fact that
amendment application has been filed
1580 INDIAN LAW REPORTS ALLAHABAD SERIES
merely to substantiate pleadings with
regard to additional evidence already
permitted to be brought on record by the
appellate court, this Court is of the
opinion
that
the
said
amendment
application should have been allowed by
appellate court.

23. In the aforesaid circumstances,
petition is allowed setting aside order
dated 08.07.2019 passed by Additional
District Judge (PC Act-I), Lucknow in
Regular Civil Appeal No.137 of 2014
(Tarun Kumar Srivastava v. Gur Bux
Singh and others). Application No.A-146
in Regular Civil Appeal No.137 of 2014
is also allowed as a consequence.

24. Learned counsel for the opposite
parties has placed order dated 28.02.2019
passed in Writ Petition No.5955(M/S) of
2019(Gurdeep
Singh
v.
Additional
District Judge/Special Judge, P.C.Act-1,
Lucknow
and
another)
with
the
submission that this Court has already
directed the appellate court to decide
Regular Civil Appeal No.137 of 2014
with expedition, say, within a period of
six months from the date a certified copy
of order is submitted. Learned counsel for
opposite parties submits that in view of
aforesaid direction, the appeal is required
to be decided in terms of order dated
28.02.2019, although the time frame
indicated in said order has already
expired.

25. Keeping in mind the direction
issued
by
this
Court
earlier
on
28.02.2019, learned court below, i.e.
learned Additional District Judge/Special
Judge, P.C.Act-1, Lucknow is directed to
decide the appeal with expedition in terms
of order dated 28.02.2019, however with
the slight modification that in view of this
order, the appeal shall be decided
preferably within a period of three months
from the date a copy of this order is
brought on record in the appellate
proceedings. Consequential amendment to
memorandum
of
appeal
shall
be
incorporated by the appellant within a
period of seven days from the date a copy
of this order is brought on record before
the court concerned and the proceedings
shall thereafter be completed within the
time frame as indicated herein-above.
----------

(2019)10ILR A 1580

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.09.2019

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 7515 of 2013

M/S Grasim Industries Ltd. (Unit Indo
Gulf Fertilisers) ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Md. Altaf Mansoor.

Counsel for the Respondents:
C.S.C., A.S.G., Sri Gaurav Saxena, Jushi
Saxena, Sri Lalla Chauhan, Sri Mohd.
Yousuf, Nandita Bharti, Sri Neeraj Kumar
Saxena, Rajni Saxena, Rishi Saxena,
Seena Saxena.

A. Industrial Disputes Act, 1947 - Section
2(a)(2) - petition filed-challenging the order
passed by the Presiding Officer, Central
Government
Industrial
Tribunal,
Lucknow
('CGIT')- declaring the petitioner-Company to
be "Controlled Industry" u/s.2(a)(2) of the
Industrial Disputes Act, 1947- unless a
notification of Central Government bringing