IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2172 of 2008 JAGDISH KUMAR GUPTA @ JAGDISH PRASAD Versus ASHOK KUMAR GUPTA & ORS ----------- 2. 9.1.2009 Heard counsel for the petitioner. In a suit for eviction filed jointly against the three persons, all three of them being brothers, initially two of them appeared though belatedly and were allowed to contest the suit on payment of cost of Rs. 1500/- by recalling the order of ex-parte hearing. After that the plaintiff had completed his evidence and the appearing defendants no. 2 and 3 were called upon to adduce their evidence. At this stage the petitioner, defendant no.1 in the suit, appeared and took a plea that he was ill and recovering at Gorakhpur and therefore, he should be allowed to contest the suit by recalling the ex-parte order passed in the suit. The court below has considered this aspect at great length and at least those reasons do not suffer any factual error. At this stage Mr. Ashok Kumar Sinha, learned counsel for the petitioner, would submit that the stake of the two brothers who are contesting the suit and 2 their consequential stand is quite at variance against the case of the petitioner in the capacity of defendant no.1. At least this aspect of the matter was not pressed before the court below to elicit any answer in the impugned order but even if the pleading in the plaint is admitted by the two defendants, who are contesting the suit, that will not bind the petitioner because it is said by the plaintiff opposite party himself that the defendant petitioner is the Karta and Manager of the joint family which has taken the premises on rent. Obviously the interest of the petitioner, therefore, cannot be altogether ignored and any decision by way of ex-parte hearing against him would definitely affect his personal right. This Court, therefore, taking into account the interest of justice would for one and last time allow the prayer of the petitioner for his being given an opportunity to contest the suit. This Court is conscious that on account of this the plaintiff seeking eviction would be prejudiced by way of delay in disposal of 3 the eviction suit pending since 2004. Mr. Ashok Kumar Sinha, learned counsel, in order to mitigate this aspect, has expressed his consent for payment of any reasonable amount of cost by the defendant-petitioner which could partially compensate at least some of the loss of the plaintiff opposite party. This Court taking into account that it is a suit of the year 2004 and virtually the progress in the suit in the period of last five years will be eaten up on account of allowing the defendant-petitioner to contest the suit in which he will now have again not only a right to file a written statement but also get the issue recasted, if necessary, and further cross-examine the witnesses of the plaintiff. All of such steps for the petitioner would require rehearing of the suit and thus he cannot get this accommodation unless the petitioner pays a sum of Rs. 10,000/- which would be in addition to Rs. 1000/- as directed by the court below in the impugned order within a period of three months from today. In the event the petitioner does not pay this amount within a period of three months from 4 today, this order shall not be given effect to and the suit will proceed without allowing the petitioner (defendant no.1) to contest the suit. If, on the other hand, the petitioner deposits a sum of Rs. 10,000/- for its being paid to the plaintiff within a period of three months, the court below immediately thereafter would take the written statement of the petitioner on record which must be filed within two weeks of the deposit of amount of Rs. 10,000/-. Thereafter if any further issue is to be recasted that must be done within a period of next two weeks and the witnesses of plaintiff who have been examined will be made available to the petitioner for their cross-examination and such cross-examination by the petitioner must be completed within two months of payment of Rs. 10,000/- to the plaintiff. Thereafter the petitioner in the capacity of defendant no.1 must complete his evidence in next two months so that the suit itself is ultimately disposed of within a period of nine months from the date of receipt/ production of a copy of this order. It is also made clear that as the 5 petitioner has taken a plea that defendants no. 2 and 3, his brothers, are having strained relationship with him they will not be given any indulgence on the strength of this order and the evidence to be adduced by both of them as directed by the impugned order shall continue and the suit shall not be kept pending for completing of their evidence and their evidence if not already completed by now, must be completed within this period of three months by the time in which the petitioner will deposit the amount of Rs. 10,000/-. With the aforementioned observations, this application is allowed. (Mihir Kumar Jha,J.) Surendra/