Single judge permitted petitioner to file fresh affidavit-supported application for recall of cross-examination deprivation order, allowing trial court to decide merits without technicality influence.
Petitioner allowed to file fresh application supported by affidavit.
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Court No. - 40
Case :- MATTERS UNDER ARTICLE 227 No. - 7169 of 2019
Petitioner :- Bandana Devi Respondent :- Raghvendra Tiwari Counsel for Petitioner :- Satya Prakash Shukla
Hon'ble Manoj Kumar Gupta,J.
Supplementary affidavit filed today is taken on record.
The instant petition is directed against the order dated 14.8.2019, by which the trial court has rejected the application 76-kha, filed by the defendant-petitioner, in Suit No. 32 of 2019, under Section 13 of Hindu Marriage Act 1955, for recall of the order dated 4.4.2019, whereby her right to cross examine the witnesses, was forfeited.
In the recall application, the petitioner had specifically stated that her house is situated in Madhya Pradesh, which is at a distance of 200 kms. from district Mirzapur, where the suit is pending. She was coming to the court along with her brother on 4.4.2019. Her brother fell ill and therefore, she could not come to the court. After her brother recovered from his illness, she came to the court and moved the application for recall of the order dated 4.4.2019.
The trial court has rejected the application on the sole ground that the application is not supported by any affidavit.
Counsel for the petitioner does not dispute that the application 76-kha was not supported by any affidavit.
Since the application has been rejected on a technical ground, therefore, I am of the opinion that the ends of justice would be met in permitting the petitioner to file a fresh application, supported by affidavit and documentary evidence, regarding illness of her brother and in which event, the trial court shall decide the said application, without being influenced by the impugned order.
The petition stands disposed of accordingly.
(Manoj Kumar Gupta, J.)
Order Date :- 18.10.2019 Jaideep/-
1 issue framed by the court
Whether to permit filing of a fresh affidavit-supported application for recall after technical rejection by lower court.
Bandana Devi
Raghvendra Tiwari
Manoj Kumar Gupta
As recorded by the court registry
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