IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : 22.11.2010 C.R.No.5811 of 2010 Gurbinder Kaur @ Angrej Kaur ...Petitioner Versus Surjit Singh and others ...Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA Present : Mr. Sanjiv Manrai, Advocate, for the petitioner. Mr. K.S.Sidhu, Sr. Advocate, with Mr. Vikrant Oberoi, Advocate, for the respondents. HEMANT GUPTA, J. (Oral) Challenge in the present revision petition, at the instance of defendant No.5, is to an order passed by the learned trial Court on 18.05.2010, whereby an application to seek recall of the order dated 03.11.2004 was dismissed. The plaintiff-respondents filed a suit for declaration challenging the sale deed dated 20.06.2002 executed by Harpal Singh- defendant No.1 in favour of defendant No.5. In the said suit filed on 24.09.2002, defendant No.5 did not file her written statement within the time granted. Therefore, the learned trial Court passed an order on 03.11.2004 striking off the evidence of the said defendant. The defendant- petitioner filed an application for recall of the order, which has been dismissed by the learned trial Court on 18.05.2010. Learned counsel for the petitioner has vehemently argued that the order of striking off the defence of the petitioner is not tenable, as the petitioner could not file her written statement due to factors beyond her control. It is contended that, in any case, after the order was passed by the C.R.No.5811 of 2010 learned trial Court on 03.11.2004, the trial of the suit has not proceeded in any substantial manner and, therefore, if the petitioner is permitted to participate in the suit, it will only advance the cause of justice. It is also stated that the petitioner shall not seek recall of any witness examined by the plaintiffs so far, if any, and shall also compensate the plaintiffs in delay in filing of the written statement. The learned trial Court has dismissed the application for recall of the order for the reason that such application has been filed after 4½ years. No doubt, it is true that such application has been filed after delay, but the fact remains that even the trial has not proceeded in any substantial manner. It is not the case of the plaintiffs that defendant No.5 has sought to participate in the suit so as to fill up the lacuna in evidence of the defendants. In the absence of any such plea, mere delay in filing of an application for recall of the order striking off the defence, is really not material. Consequently, orders dated 03.11.2004 and 18.05.2010 are set aside, subject to payment of Rs.10,000/- as costs. The petitioner is directed to file her written statement on the date fixed and also to pay costs of Rs.10,000/-. If the petitioner fails to pay the costs or to file written statement on the date fixed, the order of striking off the defence shall remain in operation. If the costs are deposited and the written statement is filed, the petitioner will be permitted to contest the suit, but subject to the condition that the petitioner will not be permitted to recall any of the witness already examined. With the said direction and liberty, the instant revision petition stands disposed of. 22.11.2010 (HEMANT GUPTA) Vimal JUDGE 2