(1.) THE 1st respondent filed a suit for declaration that the sale deed executed by defendant No. 2 in favour of defendant No. 1 is null and void and consequential reliefs. Defendant No. 3 is the husband of the plaintext. When the matter was set down for the evidence of the defendants, the defendant No. 3 filed an application under Section 151 of the CPC to recall defendant No. 3 and permit him to file his written statement. By the impugned order, the same was rejected. Hence, the present petition. Learned counsel for the petitioner contends that the impugned order is bad in law and liable to be set aside. On hearing the learned counsel, I' am of the considered view that there is no ground to interfere.
(2.) ONE of the reasons assigned by the Trial Court is that the provision of law invoked is 151 of CPC and not under Order 8 Rule 1 of the CPC and hence, on this ground also, the petition was dismissed. I' am of the considered view that the reasoning assigned by the Trial Court on this account is unsustainable. Merely, mentioning a wrong provision of law cannot amount to denial of the legal rights of the petitioner. Therefore, by not stating that the plea is under Order 8 Rule 1, but under Section 151 of CPC, cannot constitute a ground to reject the said plea. Even otherwise, it is to be seen that the application is filed at a belated stage, namely when the evidence of the defendant was in progress. No due diligence has been shown. The only reason assigned in the affidavit is that, even though there are no allegations made by plaintiff, however, defendant No. 1 has denied these facts. Hence, he was compelled to file the written statement. Firstly, the question of the plaintiff making any allegations against this defendant does not arise, because this defendant is the husband of the plaintiff. Secondly, if the reasoning of the petitioner is to be accepted, there is no material to show as to when the written statement was served on this defendant. Therefore, apparently, the plea being set up is beyond the averments made in the application. Under these circumstances, I do not find any good ground to entertain this petition. Consequently, the petition being devoid of merit is dismissed.