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Judgment
S. Chauhan and Dilip Gupta, JJ.—This special appeal has been filed against the order dated 14.9.2005 of the learned single Judge, by which the application for recalling the order dated 15.2.2005, passed in Writ Petition No. 24957 of 1999, has been rejected.
The facts and circumstances giving rise to this case are that the aforesaid writ petition was dismissed vide order dated 15.2.2005. The application for recall was filed only on the ground that the present Appellants could not file the counter-affidavit. However, the learned single Judge rejected the said application on the ground that recall of the order was not permissible on such a ground. Hence the present appeal.
Learned Counsel for the Appellants has fairly conceded that the present Appellants have received the notice of the filing of the writ petition. However, inadvertently, the Appellants could not file the counter-affidavit for a period of six years. Therefore, the application for recall was filed and it has been rejected only on a technical ground.
Though the provisions of the Code of Civil Procedure, (hereinafter called the ''C.P.C.'') are not applicable in a writ jurisdiction but the principle enshrined therein are applicable. After the amendment in the CPC in 2002, counter-affidavit should be filed within 30 days from the date of receipt of notice. However, it can be extended by the Court in exceptional circumstances. (Vide Kailash Vs. Nanhku and Others, and Smt. Rani Kusum v. Smt. Kanchan Devi and Ors. AIR 2005 SCW 3985.
In State of Punjab and Another Vs. V.P. Duggal and Others, , the Hon''ble Apex Court held that the Court has no right to force a party to file the counter-affidavit. It is the will of the party to file the pleadings or not. Court may draw adverse inference or pass any order but it is not proper for the Court to issue any direction to a party to file the counter-affidavit.
Under Order VIII Rule 5, C.P.C, a specific reply is to be given to the pleadings taken by the Petitioner. However, Sub-rule (2) thereof reads as under : (2) Where the Defendant has not filed pleadings, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.
It is not the case of the Appellants that they had been under disability nor the State instrumentalities can be said to be under some disability. No explanation was ever furnished as to why the counter-affidavit had not been filed. Appellants cannot be permitted to take advantage of their own mistake. A person alleging his own infamy cannot be heard at any forum, what to talk of a Writ Court, as explained by the legal maxim ''allegans suam turpetudinem non est audiendus''. If the Appellants have committed a wrong by not filing the counter-affidavit, they cannot be permitted to take the benefit of their own wrong. (Vide G.S. Lamba and Others Vs. Union of India (UOI) and Others, ; Narender Chadha and Others Vs. Union of India and Others, ; Ashok Kapil Vs. Sana Ullah (Dead) and Others, and T. Srinivasan Vs. T. Varalakshmi (Mrs), ).
In Ram Ji Lal v. Balwant Singh 1967 ALJ 410, this Court held that the Court cannot recognize a claim or cause of action based on a turpitude. Therefore, a person approaching the Court has to satisfy that his action/inaction was lawful, otherwise, he cannot be heard. In such an eventuality, the legal maxim ''ex turpi causa non oritur actio'' applies.
In view of the above, if the counter-affidavit was not filed, the Court was justified in deciding the case on the basis of the averments in the petition.
If the case is examined in the light of the aforesaid settled legal proposition and statutory provisions, no interference is called for. Appeal lacks merit and is accordingly dismissed.