- (1.) This is defendant's revision petition challenging the order dated 17.9.2010 and 6.11.2007 whereby its defence was struck off for nonfiling of written statement. As per the averments made in this petition, the defence of the petitioner was struck off vide order dated 6.11.2007 for non-filing of the written statement. It is further case of the petitioner that an application for recalling of the aforesaid order was filed and along with this application written statement was also filed on behalf of the petitioner, however, the said application for recalling of order has been rejected by the trial Court vide order dated 17.9.2010.
(2.) Counsel for the petitioner has very fairly submitted that though the remedy for recalling of the order dated 6.11.2007 before the trial Court was misconceived yet the petitioner is entitled to the relief by invoking the jurisdiction of this Court under Article 227 of the Constitution of India for setting aside the order dated 6.11.2007 as till date suit has not proceeded substantially. According to the learned counsel for the petitioner, the suit is still at the evidence of the plaintiff and in fact no evidence has been led till date. Mr. Harkesh Manuja, Advocate, has appeared on behalf of the respondents and has vehemently supported the impugned orders. However, he could not dispute the fact that the case has not proceeded before the trial Court substantially as no evidence has been recorded yet. Keeping in view the aforesaid undisputed fact that the case is at the initial stage, this revision petition is allowed and the impugned orders are set aside and the written statement, which is already on record, is treated to be as written statement filed by the petitioner subject to payment of costs of Rs.5,000/-. It is made clear that payment of costs shall be a condition precedent before further proceeding with the case on merits. The trial Court shall proceed with the case in accordance with law.;