RAJ KUMAR Vs. RAM KISHAN

JUDGEMENT

(1.) This is a civil revision petition under Article 227 of the Constitution of India for setting aside impugned order dtd. 26/9/2024 passed by the Civil Judge (Junior Division), Hoshiarpur, vide which an application under Sec. 151 CPC to set aside the order dtd. 17/7/2024 vide which the defence of defendant No.1 was struck off, has been allowed.

(2.) Learned counsel for the petitioner has submitted that in the present case, the petitioner had filed a suit for permanent injunction on 10/10/2023 and in the said case, the defence of respondent No.1/defendant No.1 was struck off on 17/7/2024 and respondent No.1 instead of filing a revision petition had moved an application under Sec. 151 CPC before the trial Court for setting aside the said order. It is submitted that the said application has been allowed by the trial Court vide order dtd. 26/9/2024. It is submitted that the order dtd. 26/9/2024 is illegal and against law inasmuch as an earlier order passed by the trial Court cannot be subsequently set aside/recalled by the same Court and it was open to the respondent to file a revision petition to challenge the order dtd. 17/7/2024 vide which the defence of respondent No.1/defendant No.1 was struck off. It is submitted that in view of the same, the present revision petition be allowed and the order dtd. 26/9/2024 be set aside.

(3.) Learned counsel for respondent No.1 has raised a preliminary objection in the present case. It is submitted that subsequent to the passing of the impugned order dtd. 26/9/2024, the written statement was filed on 5/10/2024 and cost imposed upon respondent No.1/defendant No.1 in the order dtd. 26/9/2024 was also paid and was accepted by counsel for the plaintiff who had suffered a specific statement that he has received the cost of Rs.4,000.00 from defendant No.1 in the Court and the case was adjourned to 13/11/2024 for filing of replication. It is further submitted that although the present revision petition was drafted on 14/10/2024 and notice of motion in the present case was issued by a coordinate Bench on 21/10/2024 but the said fact with respect to payment of cost has not been mentioned by the petitioner in the petition and thus apart from the petitioner being estopped from challenging the impugned order, the petitioner is also guilty of concealment of material fact.