IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2366 of 2005 AVINASH CHANDRA PANDEY Versus KAMLESH PATHAK & ORS ----------- 9. 9.9.2008 Reference may be made to the earlier order dated 8.7.2008. Pursuant thereto a report at Flag- 'B' has been received from the court below dated 21st of August, 2008. In the report it has not been revealed as to whether the allegation made by the defendant-opposite parties against the Bench Clerk of the concerned court was correct or not. It is true that the court below in the impugned order has recorded only about some oral complaint made against the Bench Clerk to the District Judge. Infact, when both the concerned the then Presiding Officer and the then District Judge are no longer posted there, the correctness and veracity of such oral complaint could not have been explained by the present District Judge or the Presiding Officer in seisin of the case. As a matter of fact when such a serious allegation was made against the Bench Clerk the Presiding Officer at that point of time 2 in stead of making only a oral complaint ought to have submitted a written complaint on the administrative side which could have led to an enquiry and determination of the correctness of the allegation made by the defendant-opposite parties. Today counsel appearing on behalf of the defendants opposite party has however submitted that such written complaint though initially filed was withdrawn and not pressed. Apparently the reason, therefore, which had weighed upon the Court below while passing the impugned order for allowing the defendant-opposite party to cross-examine the witnesses of the plaintiff on payment of cost of Rs. 1000/- is not borne out of records. Infact the solitary reason given in the impugned order that the Bench Clerk had invariably informed the incorrect dates stands further watered down when such allegation was itself withdrawn by the defendant-opposite parties. Thus in all fairness, the court below ought not to have taken note of such oral allegations and should have passed the order rejecting such 3 plea of the defendant-opposite parties. The net picture which would thus emerge is that after the plaintiff- petitioners had closed their evidence on 12.3.2001, it was only on account of deliberate laches on the part of the defendant-opposite parties that the further proceeding in the suit had lingered and in fact has been still languishing till date only because the defendant-opposite parties did not co-operate in the expeditious disposal of the suit. In such a situation even if the court below was satisfied to allow the prayer of the defendant-opposite parties for permitting them to contest the suit on merit it ought to have done so only by imposing a befitting cost. A cost of Rs. 1000/- for a lapse on the part of the defendants of nearly five years as on the date of the impugned order was wholly inadequate. Before this Court when the counsel for the plaintiff petitioners has insisted that the defendant-opposite parties should not be allowed such privilege of reopening 4 of the entire hearing of the suit and that the petitioners would be subjected to unnecessary and uncalled for miseries and harassment in producing their witnesses again for their cross-examination by the defendant-opposite parties, the plea taken by the counsel appearing on behalf of the defendant-opposite parties is that the interest of justice would be better subserved if the suit is allowed to be contested on merit by allowing the defendants to cross-examine the witnesses of the plaintiff as also permitting them to lead their own evidence. Counsel for the defendant-opposite parties, however, realizing that such an opportunity will mean both financial and personal loss to the plaintiff has himself offered to compensate the plaintiff petitioner in monitory terms as may be reasonably fixed by this Court. Considering the fact that it is the defendant-opposite parties who have been primarily responsible in delaying the disposal of the suit and now again would be getting an opportunity to cross-examine nine 5 witnesses of the plaintiff petitioner, they must pay a cost of Rs. 10,000/- to the plaintiff-petitioners within a period of three months from the date of receipt/ production of a copy of this order which would at least partly compensate the plaintiffs both in terms of delay as also the expenses that they will have to incur in producing their witnesses for cross- examination by the defendants and contesting the suit. It is clarified that the payment of cost of Rs. 10,000/- by the defendants to the plaintiffs will not become a license for delaying the hearing of the suit. Thus as soon as the plaintiff petitioner after being paid the aforesaid sum of Rs. 10,000/- would offer their witnesses for cross-examination they must be cross-examined by the defendants without any delay so that at least the cross-examination part is completed within a period of two months from the date of production of such witnesses of the plaintiff. Thereafter the defendants also must complete their evidence within a 6 period of next three months. The court below, taking into account that the suit is of the year 1992 must ensure that the suit itself is disposed of within a period of one year from the date of receipt/ production of a copy of this order. ( Mihir Kumar Jha,J.) Surendra/