The court upheld that non-filing of a counter affidavit leads to admission of the claims in the writ petition, emphasizing the non-traverse principle and ordering modification of terms regarding deputation allowance for the deceased-petitioner.

ORDER :

MURAHARI SRI RAMAN, J.

1. Flagging apathetic attitude of the Odisha State Housing Board, opposite party No.2, in not extending the benefit of deputation allowance in favour of the deceased-petitioner despite willingness shown by the Delhi Development Authority (DDA), where the petitioner is deputed to work, to pay the deputation allowance in terms of the norms of Deputation Allowance as extended to the Central Government employees on deputation, the deceased-petitioner has preferred this writ petition with the following prayer(s):-

“Your humble petitioner therefore, prays that this Hon’ble Court will be kind enough to admit this application for hearing, issue notices to the Opp. parties and after their appearance or non appearance and on their filing or non-filing of show cause may allow this writ application giving a direction to the Opp. Party No.2 to modify the Item No.3 of annexure-9. And further direct Opp. Party No.3 to pay the deputation allowance as being paid to deputation employees serving with Opp. Party No.3.

And further the Hon’ble Court may direct to pay the deputation allowance within a stipulated time period.

And may pass such other order/orders as deem fit just and proper in the interest of the justice.

And for this act of kindness the petitioner as in duty bound shall ever pray.”

2. Upon issue of notice vide Order dated 06.12.2010, M/s. Somanath Mishra and Girija Tripathy, Advocates entered appearance on behalf of the opposite party No.2-Odisha State Housing Board and on 30.07.2015, at its behest adjournment was sought for, which was allowed. As the record reveals, subsequently, on 04.01.2024, 09.01.2024, 08.02.2024 and 01.08.2025 this matter was listed for further proceeding, yet neither the opposite party No.2 nor the opposite party No.1 has chosen to file response.

2.1. Noticeably, during the pendency of this matter, the petitioner, since dead, has been substituted by legal heirs to pursue the matter.

2.2. Since no response is forthcoming notwithstanding several opportunities as mentioned above, this Court on consent of appearing counsel for both the sides, proceeds to hear the matter and dispose of.

2.3. This Court is not oblivious of the effect of non-filing of response as discussed in Lohia Properties (P) Ltd. Vrs. Atmaram Kumar, (1993) 4 SCC 6 , wherein it has been observed as follows:

“14. What is stated in the above is, what amounts to admitting a fact on a pleading while Rule 3 of Order 8 requires that the defendant must deal specifically with each allegation of fact of which he does not admit the truth.

15. Rule 5 provides that every allegation of fact in the plaint, if not denied in the written statement shall be taken to be admitted by the defendant. What this rule says is, that any allegation of fact must either be denied specifically or by a necessary implication or there should be at least a statement that the fact is not admitted. If the plea is not taken in that manner, then the allegation shall be taken to be admitted.

19. Non-traverse would constitute an implied admission. In the facts of this case the findings of the trial court and that of the first appellate court could be upheld on this admission.”

2.4. In the case of Omsairam Steels and Alloys Pvt. Ltd. Vrs. Director of Mines and Geology, BBSR , AIR 2024 SC 3410 at paragraph 18 it has been observed as follows:

“The present case notably has certain features on facts, which makes it distinguishable from the case in West Bengal State Electricity Board Vrs. Patel Engineering Co. Ltd. (2001) 2 SCC 451 = AIR 2001 SC 682. Here, it is not disputed that the Appellant made multiple calls to the first Respondent immediately upon realising that it had committed an error. Specific averments made by t