Smt. Parveen Bala vs Shri Sanatan Dharam Sabha (Regd.)

Jaswant Singh, J.—Defendant-Petitioner has preferred the instant revision petition under Article 227 of the Constitution challenging the impugned order dated 20.2.2009 (P.4) passed by the learned Civil Judge (Jr. Division), Hoshiarpur striking off her defence in a civil suit filed by the Respondent-Society; and the order dated 5.3.2011 (P.6) passed by the learned Civil Judge (Sr. Division), Hoshiarpur dismissing the application of the Defendant-Petitioner seeking recalling of the order dated 20.2.2009.

Learned Counsel for the Defendant-Petitioner argues that on merits, the Petitioner has a very good case and in case the impugned order dated 20.2.2009 (P.4) and subsequent order dated 5.3.2011 (P.6) are not set aside and the Petitioner is not permitted to file her written statement, then a grave injustice would be caused to her. It is further argued that due to the poor financial conditions and depression of the Petitioner, she could not contact her counsel in time for filing the written statement and non-filing of written statement was not intentional but due to the circumstances beyond her control.

After hearing learned Counsel for the Petitioner and perusing the paper book, this Court is not convinced with the submissions of the Petitioner and the same lacks merits and the present revision petition deserves to be dismissed for the following reasons:

Undisputedly, Plaintiff-Respondent/Sanatan Dharam Sabha, Hoshiarpur had filed a civil suit No. 373 dated 5.4.2005 (P.1) through its Secretary for possession of property in dispute as described in head note of the plaint with further prayer to direct the Defendant to pay Rs. 4000/- per month w.e.f October 2000 till handing over the possession of the suit property with interest @ 18% per annum.

Notice of the suit was given to the Defendant but instead of filing the written statement, she filed an application for rejection of plaint on 2.6.2006 on the ground that the requisite court fee has not been affixed on the plaint but the same was disposed of by the learned trial Court vide order dated 4.11.2008 (at page 25 of paper book) observing thus:

Perusal of file reveals that the requisite court fee of Rs. 19.50 is affixed on the plaint, which is correct as per the report of the reader of the court. Moreover, the contentions of the Defendant that Plaintiff has filed the suit for directing the Defendant to pay Rs. 4000/- p.m to the Plaintiff along with interest @ 18% p.a till handing over the possession of suit property. As such he is required to affix the court fee on the said amount can be decided at the time of final disposal of the case. As such the application of the Defendant is disposed of accordingly. Now for filing of w/s by the Defendant to come up on 28.11.2008.

Thereafter, the case was adjourned to 28.11.2008, 28.12.2008, 23.1.2009 but no written statement was filed by the Defendant-Petitioner for the reasons best known to her resulting into passing of the impugned order dated 20.2.2009 (P.4) at page 26 vide which her defence was struck off and the case was adjourned for Pws.

On 2.11.2010, the Plaintiff closed its evidence and the case was fixed for consideration on 31.10.2010. It transpires that on that very day i.e. 2.11.2010, an application (P.3) was filed by the Defendant-Petitioner for recalling of the order dated 20.2.2009 but the same was not decided by the learned trial Court and ultimately Civil Revision No. 7793 of 2010 titled as Parveen Bala v. Sanatan Dharam Sabha was filed before this Court and the same was disposed of vide order dated 1.12.2010 (P.5), the operative part of which reads as under:

Without expressing any opinion on merits of the application as well as the case, learned trial Court is directed to decide application moved by the Petitioner-Defendant to recall the order dated 20.2.2009 at its own merits in accordance with law. Petition stands disposed of.

Thereafter, the said application was dismissed by the learned Civil Judge (Sr. Division), Hoshiarpur vide its impugned order dated 5.3.2011 (P.6), the operative part of which reads thus:

I have heard Ld. Counsel for the parties, considered the contentions and perused the file. Perusal of the file reveals that vide order dated 20.2.2009 the defence of the Defendant was struck off as he failed to file the written statement in spite of availing several opportunities. In my opinion, there is no question of reviewing the said order because in the present case reviewing the order means passing of a fresh order and no plausible ground has been made for reviewing the same as the order can be reviewed if there was some mistake or error apparent on the fact of the record or the discovery of some new and important matter which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree or order was made. There are no such grounds in the present case on the basis of which the order can be reviewed.

Accordingly, the application stands dismissed.

Facts and circumstances discussed hereinabove clearly establish that despite availing sufficient opportunities, no written statement was filed by the Defendant-Petitioner and ultimately her defence was rightly struck off by the learned trial Court vide order dated 20.2.2009. The Plaintiff has already closed his evidence on 2.11.2010 and the case was fixed for consideration on 31.12.2010 and at this stage, application (P.3) for recalling the order dated 20.2.2009 was filed, which is not at all permissible in law on the basis of the averments made therein and the learned trial Court has rightly observed that there is no mistake or error apparent on the face of record for review/recall the order dated 20.2.2009.

This Court is fully in agreement with the reasoning of the learned trial Court. If at all, the Defendant-Petitioner had any grievance against the order dated 20.2.2009, then proper course would have been to challenge the same before this Court in the appropriate proceedings if so advised at the relevant time, but not at this belated stage.

Taking into account and facts and circumstances of the present case, I find no illegality or perversity in the impugned orders warranting any interference under Article 227 of the Constitution.

Dismissed.