Madhu Saxena vs Sarvesh Pal and Another

Sibghat Ullah Khan, J.

Heard learned counsel for petitioner.

This writ petition is directed against order dated 10.05.2012 passed by Civil Judge (S.D.) Budaun in O.S. No.345 of 2008, Sarvesh Pal Vs. Durgesh Baghel and Madhu Saxena directing the suit to proceed against petitioner defendant No.2 under Order VIII Rule 10, C.P.C. as she had not filed written statement. Thereafter, an application was filed on 04.03.2013 for taking the written statement on record which was dismissed on the same date. The order dated 04.03.2013 has also been challenged through this writ petition. In the application copy of which is Annexure3, absolutely no reason was given for not filing written statement within time fixed by Order VIII Rule 1, C.P.C. i.e. maximum period of three months from the date of service of summon. The only reason was that husband of petitioner was posted at Sambhal. This is absolutely no reason. Moreover no prayer for recall of the earlier order dated 10.05.2012 was made.

However, in view of Supreme Court authority reported in Kailash Vs. Nanhku, AIR 2005 SC 2441 : 2005 (4) SCC 480 petitioner is permitted to file an application before the court below for recall of orders dated 10.05.2012 and 04.03.2013 on payment of cost of Rs.25000/. The application shall be filed within three weeks from today after getting prepared a draft of Rs.25,000/ drawn in the name of the plaintiff and photostat copy of the same shall be filed along with the application. If the court below is inclined to allow the application, then it shall be allowed on cost of Rs.25,000/ and the draft of Rs.25,000/ shall at once be handed over by the petitioner to the plaintiff.

With the above observations, writ petition is disposed of.