IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.143 of 2007 1. Most. Asha Rani Gupta @ Asha Gupta Widow of Late Om Prakash Gupta 2. Shri Ashish Prakash S/o of Late Om Prakash Gupta 3. Akanksha daughter of Late Om Prakash Gupta residents of Mohalla Kadam Kuan, Om Vihar, Rajendra Path, P.S. Kadam Kuan, P.O. Kadam Kuan, Town and District Patna.-3. At present residing at Mohalla Anishabad, P.O. + P.S. Anishabad, Town and District Patna. ………..Plaintiffs-Petitioners. Versus 1. Manish Kumar Sinha @ Manish Kumar son of Late Om Prakash Gupta resident of Mohalla Kadam Kuan, Rajendra Path, Om Vihar, P.S. and P.O. Kadamkuan, District Patna. ……Defendant 1st party-Opposite party. 2. Sagar Sahkari Grih Nirman Samiti Ltd. through, its Secretary Dinesh Kumar Singhal @ Dinesh Singhala, Office at Abishekh Plaza, Exhibition Road, P.S. Gandhi Maidan, P.O.-G.P.O., District Patna. ……Defendant 2nd party-Opposite party. 3. Sri Sudarshan Kumar Banshal S/o Kasori Mal Banshal, resident of Abishek Plaza, Exhibition Road, P.S. Gandhi Maidan, P.O.-G.P.O.,District Patna. 4. Sri Dinesh Kumar Singhala S/o Rati Ram Singhala, resident of Shanti Van/Kankarbagh, P.S. & P.O. Kankarbagh, District Patna. …..Defendant 3rd party-Opposite party. 5. Sudarshan Hausing and Finance Ltd. through its Managing Director Sudarshan Kumar Banshal at Abhishek Plaza, Exhibition Road, P.S. Gandhi Maidan, PO.-G.P.O. District Patna. …Performa Defendant-Opposite party. 6. Sushil Kumar S/o Bashishtha Narayan Singh, Pushpanjali, Plaza Apartment Boring Road, Patna-13. 7. Sunil Kumar S/o Madhava Singh, Road No.5, Patel Nagar, Patna 23. 8. Mrs. Madhu Jain W/o Sri Hasan Kr.Jain, M-4, S.B.I, Colony, Lohiya Nagar, Kankarbagh, Patna-20. 9. M/s Mahabir Trading Company through its Proprietor, D.B. Babuna, Nai Sadak, P.S. Chowk, Patna City, Patna.-8. 10. M/s Rajesh Corporation Ltd. through its Managing Director, Sri Rajesh Goel, Lohiya Nagar, Kankarbagh, Patna-20. 11. M/s Rajesh Corporation Ltd. 2 through its Managing Director Sri Rajesh Goyel, at Shanti Van, Kankarbagh, Patna-20. 12. Rahul Kumar Singh S/o Sri Sunil Kumar, Road No.5, Patel Nagar, Patna.23. 13. Sri Abhishek Kumar S/o Sri Sunil Kumar, Road No.5, patel Nagar, Patna 23. 14. M/s Swit Coal Products (P)Ltd. through, Shekuntala Agrawal MD., Surya Vihar Apartment, Exhibition Road, Patna. 15. Harshad Bhai Patel S/o Late Patel, Flat No.301,Om Vihar Apartment, Kadam Kuan Patna.-3 16. Damodar Prasad Babna S/o Late Gauri Shankar Babna, Nai Sadak P.S. Chowk, Patna City, Patna-8 17. Ashok Kumar Lohia, S/o Late Harjit Mal Lohia, Kadam Kuan, Patna-8. 17A. Mina Lohia W/o Ashok Kumar Lohia C/o M/s Agrawal Tube Con. Nawal Kishore Road, Kadam Kuan, Patna. 18. Krishna Mohan Kumar S/o Dr. R.B. Singh, Plot No.23, Tagor Town Colony, Varanasi, U.P. 19. Manoj Kumar S/o Sri Sidneshwari Prasad, Om Vihar, Kadam Kuan, Patna.-3. 20. Shanti Moy Paul S/o Late H.N. Paul, Sheo Shakti Bhawan, New Area, Kadam Kuan, Patna-3 20A.Anita Ghosh W/o Rathmder Nath Ghosh, Sheo Shakti Bhawan, at and P.O. Kadam Kuan, Patna.3. 21. Raj Kumar Prasad S/o Shri Basant Sao, Bandhu Bazar Sahokhar, P.S. Sohsarai, District Nalanda. 22. Santosh Kumar 23. Sudhir Kumar 24. Sanjay Kumar 25. Manoj Kumar Sons of Raj Kumar Prasad, Bandhdu Bazar Sahokhar, P.S. Sohsarai, District Nalanda. 26. Punam Devi 27. Anupurna Devi 28. Anupma Kumari 29. Anuradha Kumari Daughters of Raj Kumar Prasad, Bandhu Bazar Sahokhar, P.S. Sohsarai, District Nalanda. 30. Smt. Gayatri Devi W/o Jawahar Lal, R/o village Hilsa P.S. Hilsa, District Nalanda. 31. Smt. Savitri Devi W/o Birendra Prasad R/o Mohalla Bakarganj Daldali Road, P.S- Kadam Kuan, District Patna. 32. Smt. Savita Kumari W/o Sri Ram Prasad, 3 R/o Mohalla - P.O. and P.S. Ashansol, District Ashonsol. ………Performa Defendants-Opposite parties. For petitioners. : Dr. Uma Shankar Prasad, Senior Advocate with M/s Kamala Kant Tiwary & Ram Kumar Singh, Advocates. For Opp.party no.1 : Mr. Dhirendra Kumar, Advocate. For Opp.party nos.21, 25, 29 : Mr. Bal Bhushan Choudhary, Advocate. For other Opp.parties : None ----------- 11/ 27.01.2010 This civil revision has been filed by the plaintiffs- petitioners challenging that part of order dated 21.11.2006 by which the learned Subordinate Judge-II, Patna allowed the application of defendant no.1-opposite party no.1 and recalled PWs.2, 3, 4, 5, 10 and 14 for cross-examination by defendant no.1 and also permitted defendant no.1 to examine his sole witness in Title Suit No.413 of 1996. 2. The aforesaid suit was filed by the plaintiffs- petitioners for partition of the suit properties detailed in Schedule- II and III of the plaint claiming that they were second wife and children of the original owner Late Om Prakash Gupta, whereas defendant no.1-opposite party no.1 was his son from his first wife and hence plaintiffs being co-sharers were entitled to 11/16 share in the suit properties. Other ancillary reliefs were also claimed by the plaintiffs. 3. Defendant no.1-Opposite party no.1 appeared in the suit and filed his written statement claiming that he was the only son of Late Om Prakash Gupta from his only wife Smt. 4 Dharamsheela Gupta and that the said Om Prakash Gupta neither had any second wife nor had any other children and hence plaintiffs were not his heirs and were not entitled to partition of any share in the suit properties left by him. It was also claimed that the plaintiffs conspired to anyhow usurp his properties and for that purpose falsely implicated defendant no.1-opposite party no.1 in a case of alleged murder of Late Om Prakash Gupta and filed the suit for partition. 4. Although issues had been framed much earlier and evidence of the parties were also concluded, but the arguments were not fully concluded as was apparent from the orders of the learned court below. Although learned counsel for the petitioners claims that the arguments had been closed, but no material is produced to support the said claim. 5. At this stage other defendants (except defendant no.1) filed an application for permission to cross-examine plaintiffs’ witnesses, but the said application was rejected by the learned court below because the said defendants had made prayers to cross-examine them on the points which were not pleaded in their written statement. 6. However, when defendant no.1 filed similar application for cross-examining plaintiffs’ witnesses and for examining Shri Dhirendra Kumar as his witness, the learned court below allowed the application by the impugned order dated 21.11.2006, as it was on the basis of his pleadings. This order has 5 been challenged by the plaintiffs-petitioners in this civil revision. 7. After hearing the parties it has become quite apparent that the arguments have not yet finally concluded nor the lower appellate court has passed any order reserving its judgment, rather some matters had been going on in the suit. Furthermore, defendant no.1 is the main contesting party as the plaintiffs have claimed partition against him alone. 8. It is also apparent that defendant no.1 although filed his written statement, but he could neither cross-examine plaintiffs’ witnesses nor could he examine his own witness in support of his pleadings. The reason given is that defendant no.1 was living in Delhi and seldom came to Patna as he was falsely implicated in a case and was under threat. 9. The learned court below after considering the matter in detail found that there were circumstances due to which defendant no.1 became negligent and could not take proper steps in the suit. Hence, in the aforesaid facts of the case and for the full, final and proper adjudication of the suit, the court allowed the said prayer of defendant no.1-opposite party no.1. 10. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned order of the learned court below, nor does it find any jurisdictional error therein. Accordingly, this civil revision is dismissed. harish/ ( S. N. Hussain, J. )