IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6708 of 2010 1. SURENDRA PRASAD S/O SRI BENI MADHAV PRASAD R/O MOHALLA- KOIRIBARI, NADRAGANJ, P.O.- GAYA, P.S.- CIVIL LINES, DISTT.- GAYA Versus 1. THE STATE OF BIHAR THROUGH SECRETARY, LAW DEPARTMENT, GOVT. OF BIHAR, PATNA 2. BIRENDRA PRASAD S/O SRI BENI MADHAV PRASAD R/O MOHALLA- KOIRIBARI, NADRAGANJ, P.O.- GAYA, P.S.- CIVIL LINES, DISTT.- GAYA 3. BENI MADHAV PRASAD S/O LATE BISHUN MAHTON R/O MOHALLA- KOIRIBARI, NADRAGANJ, P.O.- GAYA, P.S.- CIVIL LINES, DISTT.- GAYA 4. SMT. BASANTI DEVI W/O SRI BENI MADHAV PRASAD R/O MOHALLA- KOIRIBARI, NADRAGANJ, P.O.- GAYA, P.S.- CIVIL LINES, DISTT.- GAYA 5. SMT. LILAWATI DEVI W/O SRI RAJA RAM PRASAD R/O VILL.- KORMA, P.O.- CHHATHUBAG, P.S.- CHANDAUTI, DISTT.- GAYA 6. SMT. ARTI DEVI @ RENU DEVI W/O SRI SATYA NAND PRASAD R/O MOHALLA- DELHA, P.O. & P.S.- DELHA, DISTT.- GAYA ----------- 03. 04.04.2011 Heard learned counsel for the petitioner/defendant no.1 and for respondent no.2/plaintiff. The petitioner is aggrieved by the order dated 28.8.2009 and the subsequent order dated 15.2.2010 refusing to recall the earlier order and declining the petitioner permission to lead his evidence as defendant no.1. It appears that in Partition Suit No. 261 of 2009/ (52 of 2005) the evidence of the petitioner was closed on 26.8.2008, when non-appeared on his behalf. An application was filed on 17.9.2008 for recall of the order dated 26.08.2008, which was allowed subject to payment of cost of Rs. 150/. On the next date i.e. 28.8.2009 again 2 time petition was filed on his behalf and no one appeared to depose. His evidence was again closed on 28.8.2009 with the observation that he was attempting to linger and delay the disposal of the case. His prayer for recall of the order dated 28.8.2009 was rejected on 15.2.2010 for like reasons. Learned counsel for the petitioner submits that it was for bona fide reasons beyond his control that he could not appear. He has no intention of delaying the disposal of the Partition Suit and undertakes to lead his evidence day to day continuously till conclusion. Learned counsel for the respondent no.2 submits that, if the petitioner stands by the undertaking being given to this Court, he may not oppose the application. The conduct of the petitioner satisfies the court that respondent no.2 is entitled to be paid cost of Rs.500/- by the petitioner. Subject to deposit of cost, but again subject to the condition that the petitioner shall lead his evidence on day to day basis till conclusion continuously and if he defaults for appearance to the satisfaction of the trial court, it shall be at liberty to deal with him appropriately notwithstanding the present order. The impugned orders are set aside. The application stands allowed. P.K ( Navin Sinha, J.)