IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.16780 of 2011 Prem Lal Yadav Versus Shiv Narayan Yadav & Ors ---------------------------------- 06. 23.11.2011 Heard the learned counsel for the parties. The defendant have filed this application under Article 227 of the Constitution of India against the order dated 28.06.2008 passed by Subordinate Judge, Ist Araria in title suit No.78 of 2001 refusing to recall the order dated 30.08.2007 whereby the learned Court below has closed the evidence of the defendant and fixed the case for argument. The learned counsel for the petitioner submitted that the evidence of the petitioner was going on and during that period, an application was filed seeking permission to produce some documents mentioned in Annexure 1 but when the case was called out, nobody appeared to press the application so the learned Court below rejected the said application on 30.08.2007. The petitioner then filed recall application which has been rejected by the Court below on the ground that in each Court the Advocate was busy has not been disclosed and that the statement of which - 2 - paragraph is true to the knowledge of the petitioner and which are based on record has not been mentioned and that the suit is very old and it will delay the matter. According to the learned counsel, only on the ground of delay, the justice cannot be denied and moreover the application was rejected when the counsel for the petitioner was busy in another Court. The documents which the petitioner is desiring to produce are essential for just decision in the suit and most of the documents are public documents. Therefore, the learned Court below could not have rejected the same either on the ground of delay or on technical ground. On the other hand, the learned counsel for the respondent submitted that the petitioner was not vigilant and with a view to delay the matter, the application was filed at belated stage and the said application was not pressed. When the Court below rejected the same on 30.08.2007 then also the application was filed in December, 2007. From perusal of the impugned order, it appears that the learned Court below has rejected the application on the ground of delay and - 3 - technical ground that in which Court the Advocate was present or that which portion of the application are true to the knowledge and which are based on record has not been disclosed. The learned Court below has not at all applied the mind as to whether the documents sought to be filed by the petitioner are required for determination of the real questions in controversy between the parties. In view of the above facts and circumstances of the case, in my opinion, the learned Court below has not exercised a jurisdiction vested in it by law. However, the petitioner has no doubt filed the application but is guilty of laches and, therefore, he is liable to compensate the other side. In the result, this application is allowed and the order dated 30.08.2007 and 28.06.2008 are set aside subject to payment to cost of Rs.2500/- in the Court below within one month from today. It is made clear that if the cost is not paid within the said period, this order shall stand automatically recalled. Sanjeev/- (Mungeshwar Sahoo,J.)