UNION OF INDIA versus SURJIT SINGH ATWAL

Citation: [1979] 2 S.C.R. 1002 · Decided: 18-01-1979 · Supreme Court of India · Bench: R.S. SARKARIA · Disposal: Dismissed

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Judgment (excerpt)

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1002 
UNION OF INDIA 
v. 
SURJIT SINGH ATWAL 
January 18, 1979 
[R. S. SARKAR!A AND 0. CHINNAPPA REDDY, JJ.J 
Ffear-Plea of 11on-con1plia11ce with the prvvi_\i,_ins of Section 175\3) of 
the Govt. of India Act, 1935 is a n1ixed plea of fact and law-A plea not hav-
ing hf'f.12 so pleaded in the. writtl'll state111ent and any 
i.1·.11u' not having been 
so rai.1cd with regard to it, cannot be allowed later. 
Pleadings-Denial of a contract-Civil I'rocedure Code, 1908 (Act V of 
1908), Order VI Rule 8 and Order Vl/l Rule 2 scope of. 
The respondent-plaintifI undertook the construction of a hard Runway, taxi 
tracks and dispersal roads at Dalbhumghar Aerodrome, pursuant to a formal 
\Vritten agreement with appellant. 
The respondent completed the work. 
At a 
subsequent conference, it \Vas agreed that the total amount of the final bill 
prepared in accordance \vi th the agreed rates less a sum of Rs. 50,000 /- should 
be paid forthwith and the balance of Rs. 50,000/- should be paid two weeks 
thereafter. 
On the appella.nt's failur'e to make the payme\1t of Rs. 50,000/-, 
the respondent filed a suit on the original side of the High Court of Calcutta 
to recover the said sum together with interest. 
The suit was dismissr-0 by a 
single judge but on appeal, the Division Bench of the High Court allowed the 
appeal and decreed the suit. 
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Dismissing the appeal by certificate, the Court, 
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HELD: 1. A plea of non-compliance with the provisions of Section 175(3} 
of the GoverTJment of India Act, 1935 is a· mixed plea of fact and law. [1006 B] 
2. The plea of illegality of an agreement. not having been so pleaded in 
the \vrilten statement and no issue having been raised 
\Vith 
regard 
to 
it 
cannot be allowed lf,1·ter. 
To permit such a plea to be raised several years 
after the institution of the suit would greatly prejudice the plaintiff. 
If such 
a plea had been raised, in the instant case, at th'e appropriate stage, the res-
pondent-plaintiff might have come out with a suitable answer. 
He might have 
had his ov.rn pleadings amended either by seeking to rest his case on the original 
agreement or under Section 65 or 70 of the Contract 1\ct. f1005 G-H, 1006 A] 
3. The illegality of a contract must be specifically pleaded as much as the 
denial of a contract. 
Under Order VJ, Rule 8 of C.P.C., where a contract is 
alleged in any pleading, a bare denial of the· ~nrn~ by the opposite party ~hall 
ba construed only as a denial in fact of the express contract alleged or of the 
matters of fact from which the same may be implied, and not as a denial of 
the legality or sufficiency in law of such contract. 
And, under Order VTIJ, 
Rule 2 C.P.C., the defendant must raise by the pleading all matters which show 
the suit not to be maintainable or that the transaction is either void or void-
able ;n noint of law. [1006 B-Dl 
Kalyanpur Lhne Works Ltd. v. State of Bihar and Anr. [1954] S.C.R. 958: 
referred lo. 
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UNION v. s. s. ATWAL (Chinnuppa Reddy, J.) 
1003 
CtVIL APPELLATE JURISDICTION : Civil Appeal No. 2053 of 1969. 
From th,, Judgment and Decree dated 16-7-68 of the Calcutta High 
Court in Appeal No. 199-A of 1964. 
R. B. Bhatt, E. C. Agarwala and Girish Chandra for the Appellant. 
H. B. Datar and Ashok Grover for the Respondent. 
The Judgment of. the Court :was delivered by 
CHINKAPPA REDDY, J.-Not content with raising a false plea, 
the 
appellant, Union of India has preferred this appeal on a technical ground. 
The respondent-plaintiff undertook the construction of a hard Runway, 
Taxi tracks and dispersal roads at Dalbhumghar Aerodrome. There was 
a formal written agreement between the parties 
(Agreement 
No : 
A-Vll/96 of 1944-45). 
The respondent completed the work in 1945. 
The agreement provided for the work to be done "with stone at site". 
As no stone was available at the site, stone had to be obtained by blast• 
ing a rock in a hillock. The rates stipulated in the agreement were on 
the basis that stone was available at site and not on the basis that stone 
had to be obtained by blasting rock. 
Some of the rates, therefore, re-
quired revision. 
There was a conference between the parties in No-
vember, 194 7. 
On the side of the Government the Superintending En-
gineer, the Executive Engineer and the Deputy Accountant General 
were present. In respect of fourteen items of work the old rates were 
not altered. 
In respect of ten items of work only the rates were alter-

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