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Allahabad High Court · body

2012 DIGILAW 2722 (ALL)

Raj Shekhar v. Kanpur Kshetray Gramin Bank

2012-11-26

PANKAJ MITHAL

body2012
Pankaj Mithal, J.— This revision under Section 115 CPC has been preferred against the order dated 31.7.2012 passed in Original Suit No. 99 of 2006 whereby court below has refused time to the revisionist to file additional written statement in reply to the amended plaint and at the same time has fixed date for evidence of the parties. The aforesaid order is purely an interlocutory order and as such is not revisable under Section 115 CPC. Learned counsel for the revisionist submits that it may be treated as petition under Article 227 of the Constitution of India. He points out that pursuant to the impugned order till date evidence of the parties have not been recorded and that the written statement could not be filed on account of illness of the counsel who had moved illness/adjournment application. The adjournment application has been enclosed as annexure 6 to the stay application and a certified copy of the same was produced during the course of argument. It reveals that the adjournment for filing additional written statement was sought on the ground of illness of the counsel. The court below has rejected it without assigning any reasons. The illness of the counsel was not doubted or disputed. In view of the above, I consider it expedient in the interest of justice to treat this revision as petition under Article 227 of the Constitution of India and under the facts and circumstances of the case, I am further of the opinion that the revisionist/petitioner is entitle to atleast one more opportunity to file his written statement. Accordingly order dated 31.7.2012 is set aside and the petitioner is permitted to file additional written statement within a period of three weeks from today subject to payment of cost of Rs. 5,000/- which shall be deposited within above period with the court below for payment to the other side. Since the order has been passed in the absence of the other side, it will be open for him to apply for recall of this order in case it has been obtained on incorrect or by concealment of any material facts. Petition allowed. _____________