IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.322 of 2007 ---- 1. Prayag Sharma, son of Late Kailash Sharma. 2. Devnath Sharma, son of Late Rambriksh Sharma. Both resident of Mouza-Adalpur, Post-Adalpur, Police Station- Jandaha, District-Vaishali. -- Defendants-Petitioners. Versus 1. Satya Narayan Sharma, son of Late Rakatu Thakur. -- Plaintiff-Opposite Party. 2. Sunita Devi. 3. Pasatiya Devi. Both daughters of Late Ram Briksh Sharma. 4. Ahilya Devi. 5. Mandodari Devi. Both daughters of Late Kailash Sharma. All residents of Mouza-Adalpur, Post-Adalpur, Police Station- Jandaha, District-Vaishali. -Defendants-Opposite parties. ----- For the petitioners : M/s Sanjay Kumar & Surendra Kumar Choubey, Advocates. For opposite party no.1: Mr.Manish Chandra, Advocate. For opposite party nos.2 to 5: None. ---- 02. 14.07.2009 Heard learned counsel for the petitioners and learned counsel for opposite party no.1. 2. This civil revision has been filed by defendants- petitioners challenging order dated 20.11.2006 by which learned Civil Judge (Senior Division), Vaishali, rejected their petition for recall of order dated 12.01.2006 by which they were debarred from filing their written statement in Partition Suit No.81 of 2005. 3. Learned counsel for the petitioners submits that a frivolous Partition Suit bearing P.S.No.81 of 2005 was filed by plaintiff-opposite party no.1 for partition of the suit property and for other ancillary reliefs. He further submits that in the said suit summons were issued and defendant nos.1 and 2 appeared in the suit - 2 - on 23.08.2005. However, when no written statement was filed within the period prescribed under Order VIII Rule 1 of the Code of Civil Procedure, they were debarred from filing their written statement vide order dated 12.1.2006 passed by the learned court below. 4. Learned counsel for the petitioners submits that petitioner no.1-defendant no.2 was seriously ill from December, 2005 to September, 2006 and hence immediately after his recovery they filed a petition dated 11.10.2006 for recall of the order dated 12.01.2006 debarring the petitioners from filing their written statement and thereafter on 20.11.2006, they also filed their written statement. He further states that before December, 2005, written statement could not be filed because the defendants-petitioners were trying to take out some documents which were necessary for the filing of the written statement. 5. Learned counsel for the petitioners also submits that the learned court below did not appreciate properly the aforesaid facts and circumstances and passed the impugned order which will cause failure of justice and none of the defendants having appeared except the petitioners, the plaintiff will succeed in his nefarious attempt. 6. On the other hand, learned counsel for plaintiff-opposite party no.1 vehemently opposes the contentions of the learned counsel for the petitioners and submits that the entire averments of the petitioners’ counsel is against the specific provision of law. 7. After hearing both the parties and considering the facts and circumstances of the case, it is quite apparent that neither of the - 3 - parties are able to state the date on which defendants no.1 and 2 received the summons from the court below. However, learned counsel for the petitioners stated that defendants no.1 and 2 appeared in the suit on 23.08.2005. In the said circumstances, it was incumbent upon the defendants-petitioners to file their written statement within thirty days, i.e. by the end of September, 2005 and if they were deprived due to any genuine reasons they should have at any cost filed their written statement within ninety days, i.e. by the end of November, 2005. 8. The excuse of the defendants-petitioners that they were trying to obtain copies of some documents due to which delay had occurred appears to be absolutely frivolous as on such grounds delay cannot be legally condoned. Furthermore, even according to the claim of the defendants-petitioners, only petitioner no.1-defendant no.2 fell ill, hence, petitioner no.2-defendant no.1 could have taken necessary steps. Furthermore, even according to their case, petitioner no.1-defendant no.2 fell ill in December, 2005, i.e. much after the expiry of the period of ninety days. Hence, no valid ground is shown for such an enormous delay and the entire claim of the petitioners appears to be absolutely frivolous and his petition for recall of order dated 12.01.2006 was fit to be rejected, especially in view of the decision of this court in case of Smt. Sunita Devi & Ors Vs. Abdesh Kr. Singh @ Kamleshwar Pd. Sinha & Ors, reported in 2005(2) P.L.J.R 482 as well as the decision of the Hon’ble Supreme Court in case of Kailash Vs. Nankhu & ors, reported in 2005 (3) - 4 - P.L.J.R (SC) 241. 9. This court does not find any illegality or jurisdictional error in the impugned order of the learned court below. Accordingly, this civil revision is dismissed. Sunil (S. N. Hussain, J.)