IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2343 of 2006 SITA RAM MAHTO, S/o Shivan Mahto, R/o village – Jamaila, P.s. Andhratharhi, District Madhubani --- Defandant no. 1 … Petitioner Versus 1. PHOOL KUMARI DEVI, W/o late Babu Lal Mahto ,R/o village – Jamaila, P.S. Andhratharhi, District Madhubani …. Plaintiff…. Opp. Party 1st set. 2. Ram Govind Mahto, S/o Shivam Mahto 3. Shivan Mahto, S/o late Raghunandan Mahto 4. Ganpat Devi, W/o Shivan Mahto All residents of village – Jamaila, P.S. Andhratharhi, District Madhubani … Defendant Nos. 2 to 4 … Opp. Parties 2nd set Opp. Parties For the petitioner : Mr.Suraj Narain Yadav, Advocate For O.P. No. 1 : Dr. Mrityunjaya Kr. Gautam, Advocate. ------ 3 5.11.2009 Heard learned counsel for the petitioner and O.P. No. 1. This revision is directed against the order dated 16.1.2006, passed by Sub-Judge II, Jhanjharpur in Title Suit No. 11 of 1999, whereby petition filed by the defendant no. 1 - petitioner for recalling the order dated 4.6.2005, fixing the date for ex parte hearing of the concerned suit, had been rejected. It is submitted on behalf of the petitioner that petitioner was residing out side the State, therefore, he could not had knowledge of passing of order dated - 2 - 4.3.2005 by the Court below fixing the case for ex parte hearing. It is further submitted that it is manifest from the impugned order itself that defendant no. 2 had received the summons issued under the registered cover in respect to the petitioner (defendant no. 1). Even the stand of the plaintiff in his plaint is that all the brothers are living separately. Thus, such service of notice cannot be considered to be valid one. In that view of the matter it is stated that since there was no service of notice upon the petitioner, therefore, setting up of the case for ex parte hearing was erroneous and the Court below ought to have recalled the same upon filing of such petition on behalf of the petitioner. Learned counsel appearing for O.P. No. 1 drew attention of this Court towards the part of the impugned order to demonstrate that notice was sent by ordinary process also and there is service report that all the defendants, after becoming aware of the notice, had refused to receive the same. In that view of the matter it is stated that service of the notice upon the defendant no. 1 – petitioner was rightly accepted as valid. The petitioner had - 3 - not challenged the aforesaid service report and as such there is no explanation for the non appearance of the petitioner thereafter. I have heard the aforesaid parties. The recall petition has been kept on record as Annexure 1. Though it is stated in the aforesaid petition that this petitioner used to live at Bhibandi i.e. outside the State and he did not had knowledge of the factum of filing of this Title Suit, so that he could appear, however, he is completely mum about service by ordinary process through the Nazarat of the Civil Court. It is vehemently put forward by the petitioner that all the defendants i.e. the brothers, are separate after partition by metes and bounds but it has been noticed in the impugned order that the petitioner was willing to adopt the written statement filed on behalf of the defendant no. 2 also. However, he also has been debarred from filing written statement. Thus, in my opinion the petitioner could not make out a case for recall of the order dated 4.3.2005 setting up the suit for ex parte hearing as service report showing service upon him by ordinary process on refusal has not - 4 - been challenged by him. Even before this Court also no statement has been made in this regard. I, thus, do not find any jurisdictional error in the impugned order dated 16.1.2006 and 4.6.2005. As a result the civil revision is dismissed. Spd/- (Dr. Ravi Ranjan, J.) -----------