IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1290 of 2008 RAM DHANI SAO & ORS Versus PRASADI SAO & ORS ----------- 2 18.8.2008 Heard learned counsel for the petitioners. In the opinion of this Court the impugned order, rejecting prayer of the defendant-petitioners to recall an order of ex-parte hearing of the suit based on unimpeachable direct proof of their negligence in contesting a partition suit is not vitiated by any jurisdictional error. The petitioners failed to demonstrate before the Court below that the summons were not validly served on them. The petitioners also did not deny the fact that they did not appear in the suit despite service of summons both through ordinary process or registered cover as also by way of substituted service through publication of summons in newspaper. That being the position, this Court is satisfied that the order - 2 - for ex-parte hearing passed on 9.12.2005 was wholly justified and therefore no error was committed by the Court below if it did not choose to recall its such order of ex-parte hearing of the suit. The petitioners infact were/are solely responsible for causing a delay of more than three years in the disposal of the suit. Realizing this position Mr. J.S. Arora the counsel appearing for the petitioners offers a sum of Rs. 10,000/- to compensate delay and harassment caused to the plaintiffs. He further submits that the suit being one for partition, it would cause irreparable loss to the petitioners specially when this specific of previous partition of the same family property would not be considered. Thus, this Court in the light of submissions of the counsel for the petitioner and in the interest of - 3 - justice would give one indulgence to the petitioners to contest the suit on merit provided they would pay of sum of Rs. 10,000/- to the plaintiff within a period of two months from the date of receipt/production of a copy of this order. In the event proof of such payment is furnished by the petitioners before court below, it will recall its ex-parte order dated 9.12.2005 and proceed to decide the suit on merit by fixing a firm time limit directing the petitioners to conclude their case in all respect within nine months from the date of receipt/production of a copy of this order. With the aforementioned observations and directions this application is disposed of. shahid (Mihir Kumar Jha, J)