IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1050 of 2006 SHEO NARAIN SINGH & ANR Versus RAMESHWAR SINGH ----------- 3 18/11/2008 Heard Mr. Dhanunjay Kumar, counsel for the petitioner and also Mr. Akhilesh Kumar, counsel for the opposite party. The defendants, petitioners before this Court make a complaint that the cost of Rs. 10,000/- imposed by the impugned order for allowing them to contest the suit is not only two harsh but also shockingly arbitrary. It has been submitted that as a matter of fact when the Court itself had ordered for accepting the service of notice on the defendants, petitioners on 17.1.2006 and directed for exparte hearing on 13.4.2006, the petitioner could not have been subjected such heavy cost because they had appeared on 25.5.2006, i.e, within a period of one month and ten days from the date of exparte order. The aforementioned submission seems to be very attractive and would definitely therefore create an impression that awarding of cost of Rs. 10,000/- by the court below was arbitrary. Unfortunately, 2 that however is not the true state of affair. The suit was filed in the year 2001 with only two defendants, i.e, Rakesh Singh and Sheonarayan Singh. The summons sent by the court as per court records was received by Sheonarayan Singh for himself and his son Rakesh Singh, but he refused to give acknowledgement of the same in writing. This aspect of the matter was not only recorded by the process server, but also supported by the witnesses. Notices sent to both the defendants, petitioners through registered cover also had returned back with a report of the endorsement and report of the postal peon that both the persons have refused to accept the registered cover. Such reports of service of summons left the court below with no option but to accept them and proceed exparte. The plea raised by the petitioner therefore that no efforts were made by the court below for substituted service is also misconceived, in as much as, it is not the requirement of law that the court below even after receipt of service of summons through the aforesaid two modes, i.e, by summons 3 through the process server of court and registered cover are effected, even then it has to be published in the newspaper by way of substituted service. The suit thereafter infact had proceeded for next five years and when even after expiry of about five years neither any appearance was filed nor any written statement on behalf of the petitioner was filed, the court below only on 17.1.2006 passed an order to the effect that the service of notice on the petitioners were valid and thereafter on 13.4.2006 it was ordered that the suit will be proceeded exparte. In pursuance thereof on 15.5.2006 five witnesses were examined and thereafter argument on behalf of the plaintiffs was also concluded and the case was fixed for delivery of judgment. It is at that that the petitioners came out with the application for recalling the exparte order and allowing them to contest the suit. The court below having noted all these aspect in the impugned order still proceeded to give one opportunity and for 4 this purpose it had been held therein since disposal of the suit has already been delayed and would be further delayed on account of allowing the petitioner to lead evidence, a cost of Rs. 10,000/- should be imposed against the petitioner. This Court is therefore satisfied that there was a situation created by the petitioner himself by which the entire hearing of the suit from the stage of filing of the written statement had to be recommended as it existed on 8.5.2001. In between 8.5.2001 till the impugned order dated 5.6.2006 the plaintiffs, opposite parties were present before the Court on almost all the dates and were doing pairvi and ultimately witnesses were also examined by them. In fact as noted above the plaintiffs had also concluded their arguments and if all the events of these five years was sought to be nullified by allowing the petitioner to contest the suit on merit by awarding cost of Rs. 10,000/- the same not be held to be either excessive or exorbitant. Thus in the considered opinion of this Court, the defendants-petitioners are 5 under obligation to bear expenditure of the plaintiff-opposite party spent by them in the entire period of five years before the court below and also for compelling them to appear before this Court and make them wait again for a period of another two years in this civil Revision Application. In that view of the matter, this Court would not find any error in the impugned order and accordingly this Civil Revision Application is dismissed with a direction to the petitioner to pay the amount of cost within a period of one month from the date of receipt of the order, failing which the Court would proceed to decide the suit on the basis of the materials on record as it existed on 25.5.2006. This application is accordingly dismissed. (Mihir Kumar Jha,J.) Abhay Kumar