- (1.) Aggrieved by order dated 25.08.2004 in Title (Eviction) Suit No.13 of 2003 whereby, the application seeking recall of order dated 29.03.2004 has been rejected, the present writ petition has been filed.
(2.) The petitioner is defendant in Title (Eviction) Suit No.13 of 2003. The suit was filed for ejection of the defendant on the ground of default in payment of rent and personal necessity. After the suit was admitted, summons were issued to the defendant on 16.12.2003, which was received by the defendant on 05.01.2004. The defendant appeared on 07.01.2004 and he was granted time to file written statement. Thereafter, the defendant was granted time for filing written statement on four subsequent dates however, he failed to file written statement and consequently, vide order dated 29.03.2004, the defendant was debarred from filing written statement. The defendant finally filed written statement on 21.05.2004 and he also filed an application under Section 151 CPC seeking recall of order dated 29.03.2004. The said application has been dismissed vide impugned order dated 25.08.2004. Aggrieved, the petitioner has approached this Court.
(3.) Challenging order dated 25.08.2004, Mr. Bhaiya Vishwajeet Kumar, Advocate assisted by Mr. Prashant Kumar Rahul, Advocate submits that as on 29.03.2004 even the statutory extended period under Order VIII Rule 1 CPC was not complete still, the trial court debarred the defendant from filing written statement. The defendant has taken a specific plea that due to nonavailability of necessary documents and illness in his family, he could not file his written statement however, the plea taken by the defendant has not been considered by the trial court and the application seeking recall of order dated 29.03.2004 has been mechanically rejected. The learned counsel for the petitioner has relied on a decision in "Rani Kusum (Smt.) Vs. Kanchan Devi (Smt.), 2005 6 SCC 705", .;