CRP 354/2010 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY Heard Mr. A.R. Sikdar, learned counsel for the petitioner as well as Mr. N. Rajkhowa, learned counsel for the respondent. This petition by the defendant in Title Suit No.271/2009 is directed aga inst the order dated 09.08.2010 passed by the learned Munsiff No.1, Kamrup at Gu wahati refusing to vacate the order dated 04.11.2009 passed in the said suit dir ecting that the suit shall proceed ex-parte against the present petitioner/defen dant, on the ground of failure to file the written statement. It has been conten ded by the learned counsel for the petitioner that the learned Court below has r ejected the application on the ground that the earlier application filed praying for the same relief is still pending, though the said application was allowed t o be withdrawn vide order dated 05.01.2010. It has also been submitted that sinc e the learned Court below did not disbelieve the contention of the petitioner in the application filed on 05.12.2009, the order dated 04.11.2009 to proceed ex-p arte ought to have been vacated and the written statement filed on 05.12.2009 ou ght to have been accepted, as it would not cause prejudice to the plaintiff. Supporting the order dated 09.08.2010, the learned counsel for the respo ndent on the other hand has submitted that though the earlier application seekin g recall of the order dated 04.11.2009 was disposed of and was not pending at th e time when the application dated 05.12.2009 was taken up for consideration, it appears from the contents of both the applications that a contrary stand was tak en by the present petitioner while praying for recalling the order dated 04.11.2 009 and as such the learned Court below has rightly refused to vacate the order to proceed ex-parte against the defendant/petitioner and to accept the written s tatement filed. It appears from the impugned order dated 09.08.2010 that one of the grou nds on which the application dated 05.12.2009 rejected was that the earlier appl ication was pending. The order dated 05.01.2010, copy of which has been filed by way of an additional affidavit, reveals that the earlier application was allowe d to be withdrawn on 05.01.2010 and hence on the date when the impugned order wa s passed, the said application was not pending. The application dated 05.12.2009 further reveals that according to the petitioner, he could not file the written statement within the time as he was busy with the treatment of his son from 03. 11.2009 to 17.02.2010, in support of which the petitioner has also produce the c opy of the medical certificate issued by the attending doctor. Such statement of the petitioner has not been disbelieved by the learned Court below. It also appears that in the suit between the two brothers praying for pa rtition, the defendant brother has in fact filed the written statement on 05.12. 2009 and prayed for acceptance of the same by another application dated 05.12.20 09. Having regard to the aforesaid fact that the petitioner could not appear and file written statement on 04.11.2009 due to the illness of his son , I am of the view that the written statement already filed needs to be accep ted after vacating the order to proceed ex-parte, which would not cause prejudic e to the plaintiff/respondent, since the suit is between the two brothers and cl aiming partition. However, since the disposal of the suit has been delayed at th e instance of the present petitioner, he shall pay a cost of Rs.5,000/- to the r espondent/plaintiff, which shall be deposited before learned Court below on the next date fixed. The payment of cost is a condition precedent. The parties are d irected to appear before the learned Court below on 11.01.2011, on which date th e petitioner shall deposit the said amount. The revision petition is accordingly allowed by setting aside the order dated 09.08.2010. It is, however, needless to say that in the event if the petitioner fail s to deposit the cost, the written statement filed would not be accepted. The le arned Court below shall thereafter proceed in accordance with law.