IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1520 of 2006 MD.JABIR @ SHEKH JABIR & ORS Versus MOHAMMAD KADIR & ORS ----------- 2. 5.12.2008 Heard counsel for the petitioners. It is difficult for this Court to accept the only submission that the petitioners had never appeared before the court below on 16.10.2001 and in fact they appeared only on 8.5.2006. It is so because the court has in the impugned order recorded a finding that a vakalatnama of defendants no. 2 to 5 was filed on 16.10.2001 and again a prayer on their behalf on 9.1.2002 was made seeking adjournment for filing of their written statement. If upon consideration of all these aspects the court below has found the delay of more than five years wholly unexplainable and consequently has also refused to recall the order dated 26.5.2003 directing ex-parte proceeding against the petitioners, it would not be possible for this Court to reverse these findings of facts. Realizing this difficulty counsel for the petitioner would offer that a valuable right of the petitioners in the 2 capacity of defendants no. 3 to 5 to the suit would be lost in case the suit is allowed to proceed and decided ex-parte. Counsel would take a plea of interest of justice and has himself offered that defendants no. 3 to 5, the petitioners of the civil revision application, are prepared to compensate the loss of the plaintiff on account of delay which has been caused from 16.10.2001 till this date. Considering the aforementioned submissions and taking into account the interest of justice, this Court would allow this application provided the petitioners pay a cost of Rs. 150/ per day of the proceedings beginning from 16.10.2001. The petitioners must calculate this amount on the basis of the order sheet from 16.10.2001 till today and deposit the amount in the court within a period of one month from the date of receipt/ production of a copy of this order. On payment of the aforementioned amount of cost the court below will recall the ex-parte order and permit the petitioners to file their written statement as also contest the suit. 3 It is, however, made clear that if in future at least these three defendants, defendants no. 3 to 5, are found to be again indulging any delaying tactics, it will be always open for the court to proceed ex- parte. With the aforementioned observation, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/