MIR AKBAR ALI KHAN Vs. SARWARUNNISA BEGUM

JUDGEMENT

(1.) The challenge in this petition is mounted to the order dtd. 4/1/2024, whereby I.A.No.1090 of 2023 in S.O.P.No.6 of 2023 on the file of I Senior Civil Judge, City Civil Court, Hyderabad, was decided.

(2.) The admitted facts between the parties are that the main case was filed for grant of succession certificate. The petitioner/respondent No.2 remained absent on several dates. Since on 31/8/2023 also the petitioner remained absent, the trial Court forfeited his right to file written statement/counter. The said order is sought to be recalled/set aside by filing the application under Order IX Rule 7 read with Sec. 151 of Civil Procedure Code (CPC). The Court rejected the same.

(3.) Learned counsel for the petitioner submits that in view of the judgment of Supreme Court in the case of Raj Process Equipments and Systems Pvt. Ltd. vs. Hones Derivatives Pvt. Ltd.,Civil Appeal No.8089 of 2022, dtd. 3/11/2022. it is clear that Order VIII Rule 1 of CPC is directory in nature, which was based on Salem Advocate Bar Association vs. Union of India, (2005) 6 SCC 344. In this view of the matter, the Court should have recalled the order and permitted the petitioner to file his written statement.