IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1327 of 2006 RASHO DEVI Versus SHRI DUKHI YADAV & ORS ----------- 2 31.7.2008 Heard Counsel for the parties. In view of the fact that the defendant- petitioner having been served summon on 13.7.2001 had appeared in the suit on 11.12.2001 but chose to remain non-vigilant and in fact did not file written statement for next four years, this Court would not find any error of record in the impugned order refusing to recall the order debarring her written statement. The chain of events mentioned therein would only portray a picture of complete negligence on the part of the petitioner in filing her written statement. The Court below however was required into look into the plight of the defendant-petitioner, a lady and that too widow who was not in a position to prosecute the case diligently. Such human aspect infact how not been taken into account into by the Court below. This Court thus while balancing the equities for securing the ends of justice for the defendants-petitioner by allowing her to contest the suit on merit by way of acceptance of her belated 2 written statement would to do so only after directing the petitioner to compensate the loss of the plaintiff- opposite party who has been harassed for almost eight good years on account of the filibusterous attitude of the defendant-petitioner. This Court would accordingly in the light of the decision of the Apex Court in the case of Kailash Vs. Nanhaku reported in AIR 2005 S.C. 2441 allow this application by setting aside the impugned order upon payment a cost of Rs. 10,000/- (ten thousand) to be paid by the defendant- petitioner to the plaintiff within a period of three months from the date of receipt/production of a copy of this order. At this stage, Counsel for the petitioner has also brought to the notice the last portion of the impugned order of the Court below which reads as follows:- “But as far the defendents prayer for permiting him to contest the suit is concerned it is ordered in view of the proposition of law settled in the case of Ganpat Chand Vs. Jethmal (AIR 1983 Raj 146) and it is held that the stage of hearing of the suit, he will be at liberty to cross examine the witnesses produced by the plaintiff and adduce also his evidence in rebuttal of the allegations made in the plaint and then take part in the final arguments also leading to the decision of the suit. But he will not be allowed to lead any evidence in respect of defence 3 which has not been raised on account of his failure to file the written statement.” In the opinion of this Court, there was no need to make such an observation when the Court below was only rejecting the prayer of the petitioner to take her written statement on record. The law with regard to the defendant who has not filed or whose written statement has not been taken on record with regard to participation in the hearing by limiting to cross-examination and arguments is well settled and therefore, thus, such observations were not required to be made by the Court below. With the aforesaid observations this application is allowed in the aforementioned terms. Rsh (Mihir Kumar Jha, J.)