IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1293 of 2006 MAHENDRA PATHAK & ORS Versus DINESH PATHAK ----------- 2 28.7.2008 Heard counsel for the petitioners. The impugned order is one rejecting the prayer of the petitioner for acceptance of their belated written statement. This Court would find that the defendant- petitioners having appeared in the suit on 24.5.2004 and not filed their written statement within a period of 90 days, stood debarred from filing of such written statement by an order dated 26.8.2004. As a matter of fact, a written statement actually was filed by the defendant-petitioners only on 9.10.2004 where after an application came to be filed by them to recall the order dated 26.8.2004 debarring them from filing of the written statement. There is however, one very significant aspect which has not been taken into account by the Court below. The defendant-petitioners in their application seeking recall, had disclosed some reasons for their not filing the written statement. Such reasons could be right or could be wrong, but when the defendants, petitioners had taken a 2 specific ground that for filing of such written statement, they were required to obtain certain documents, the Court below was required to look into such plea of the petitioners for finding out as to whether such a plea of the petitioner was correct. From the perusal of the plaint, Annexure-1, it would appear that the suit was with regard to declaration of title and confirmation of possession as also for recovery of possession affecting the right of the defendant-petitioners and in that view of the matter when from perusal of the plaint, it would appear that there were not only references to various documents pertaining to land but also to a registered sale deed dated 23.01.2001, and another sale deed dated 12.9.1997, it would become clear that the defendants, petitioners could not have filed their effective written statement unless they had looked into the documents as referred to in the plaint.. That having been not done by the Court below and this Court having also noted that the written statement came to be filed in a space of four and half months from the date of their appearance, would allow the prayer of the defendant-petitioners for acceptance of their written statement. This Court while doing so, is basically governed by the concept 3 of interest of justice which would require a party to contest the litigation on merits and be not non- suited on technicalities. In that view of the matter, this Court following the law laid of the Apex Court in the case of Kailash Vs. Nanhaku reported in AIR 2005 SC 2441 would set aside the impugned order and allow the prayer of the defendant-petitioners, for acceptance of their written statement but as they had caused delay in filing of the written statement as noted above, their such prayer can only be allowed on payment of cost to the plaintiff which is quantified to a sum of Rs. 2500/-. Such cost is being awarded because plaintiff for last four years have been put on a hold only on account of the plea of acceptance of the written statement of the defendant-petitioners leading to filing of this Civil Revision application. The defendant-petitioners are accordingly directed to pay an amount of Rs. 2500/- within a period of three months from the date of receipt/production of a copy of this order in the Court below to the plaintiff-opposite party and the Court below having been furnished such proof of payment of cost by the defendant-petitioners to the plaintiff-opposite party, would accept the written 4 statement of the defendants, petitioners dated 9.10.2004 and allow them to contest the suit on merit. With the aforementioned observations and directions this Civil Revision application is disposed of. Rsh/Bibhash (Mihir Kumar Jha, J.)