- (1.) THIS Special Appeal has been filed against the order dated 14. 09. 2005 of the learned Single Judge, by which the application for recalling the order dated 15. 02. 2005 passed in Writ Petition No. 24957 of 1999, has been rejected.
(2.) THE facts and circumstances giving rise to this case are that the aforesaid writ petition was dismissed vide order dated 15. 02. 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 C. P. C. 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 v. Nankhu & Ors. , 2005 (2) JCLR 543 (SC) : (2005) 4 SCC 480; and Smt. Rani Kusum v. Smt. Kanchan Devi & Ors. , 2005 (3) JCLR 2005 (SC) : 2005 AIR SCW 3985 ).
(3.) IN State of Punjab v. V. P. Duggal & Ors. , AIR 1977 SC 196, 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 a 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. ";