IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1127 of 2006 MOSTT. NAGINA KUER & ORS Versus BEYAS DUBEY & ORS ----------- 7 2.12.2008 Heard Counsel for the parties. While there can be no difficulty in accepting the proposition advanced by the counsel for the petitioner, that the impugned order ought to have been speaking one, spelling out the reasons for restoring the suit but then at the end of the day, the matter remains one of restoration of the suit which was earlier decided ex- parte. Mr. Ravi Sankar Duivedi, learned counsel appearing on behalf of the petitioner has referred to the evidence of the parties to contend that there was definite proof of service of summons on some of the defendants which by itself disentitled them to raise a plea of having no knowledge of the suit in hand. Mr. S.K. Mazumdar, learned senior counsel appearing on behalf of the defendants-opposite parties however would contend that it is a partition suit in which the share of the defendants also to the extent of 1/3rd of the suit property is not being denied by the petitioners. In that view of the matter, Mr. Mazumdar would also submit that the interest of justice could be better served if the suit was decided on merit after 2 contest by all the parties. In the opinion of this Court, Mr. Mazumdar seems to be correct. In a partition suit, when the plaintiff- petitioners had staked their claim only to the 1/3rd of the suit property, the other co-sharers including the defendants-opposite parties were definitely required to be heard and for that purpose, the Court below has allowed the application after awarding a cost of Rs. 2,000/-. Such order cannot be said to be vitiated by any jurisdictional error. Mr. S.K. Mazumdar, learned senior counsel however, fairly agrees that the amount of cost of Rs. 2,000/- was on a lower side. This Court, accordingly, would direct the opposite parties to pay a further sum of Rs. 3,000/- more by making the total cost of Rs. 5,000/- . Such payment must be paid within a period of one month from the date of receipt/production of a copy of this order. With the aforesaid modification in the impugned order this Civil Revision Application is disposed of. Rsh (Mihir Kumar Jha, J.)