IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.624 of 2007 Nalanda Zila Aushadhi Bikreta Sangh, Karim Market, Bihar Sharif, Nalanda through its Joint Secretary, Rajmani Singh, son of Ramprit Singh, resident of village Barah, P.S. Harnaut, District Nalanda at Present residing at Harnaut, P.S. Harnaut, District Nalanda. …….Plaintiff-Petitioner versus Md. Ghulam Sarwar @ Lallu, son of late Md. Suleman, resident of Mohalla Sakunat Khurd, Town Bihar, P.O. Biharsharif, District Nalanda. ….Defendant-Opposite Party ----------- For the Petitioner : Mr. R. K. P. Singh, Advocate. For the Opp. Party : Mr. Amar Nath Singh, Advocate. ------ 02/ 08.10.2009 Heard learned counsel for the petitioner and learned counsel for the opposite party. 2. This civil revision has been filed by the sole plaintiff-petitioner challenging order dated 05.02.2007, by which the learned Subordinate Judge VII, Nalanda, affirmed his order dated 08.08.2006 without considering the application of the plaintiff dated 18.09.2006, by which he sought recall of the said order dated 08.08.2006 in Title Suit No. 53 of 2001. 3. The aforesaid suit was filed by the sole plaintiff against the sole defendant-opposite party for specific performance of contract with respect to the suit property detailed in Schedule 1 of the plaint and for other reliefs. It is submitted by learned counsel for the petitioner that summons were issued to the sole defendant of the suit, which was served upon him on 06.12.2001, whereafter he appeared in the suit on 22.01.2002. 4. Learned counsel for the petitioner further submits 2 that the sole defendant took ten adjournments for filing his written statement and when even thereafter he did not file his written statement, the learned court below, vide its order dated 21.11.2002 adjourned the suit as a last chance to 04.12.2002 for filing written statement. It is also stated that on 04.12.2002 neither any pairvi was made nor any written statement was filed on behalf of the defendant and hence the learned court below fixed the case for ex parte hearing and subsequently on 24.01.2003 specific order for ex-parte hearing was passed directing the plaintiff to produce evidence. 5. It is also stated that after examination of four plaintiff’s witnesses, the evidence of the plaintiff was closed on 20.08.2004 and while the suit was pending for final decision, the defendant filed an application dated 06.05.2005 for recall of order for ex parte hearing, but no leave of the Court was prayed for filing written statement and without it the written statement was filed on 06.05.2005. To the said application, the plaintiff filed his rejoinder on 06.06.2005 and finally vide order dated 08.08.2006 (Annexure 5) the learned court below recalled the order of ex parte hearing and accepted the written statement. 6. It is also stated on behalf of the petitioner that the plaintiff filed an application on 18.09.2006 (Annexure 6) in the learned court below for recall of its order dated 08.08.2006. It is also stated that subsequently order dated 05.02.2007 was passed by the said court, in which order dated 08.08.2006 was reaffirmed without even mentioning the application of the plaintiff dated 3 18.09.2006 and without meeting the points raised therein by the plaintiff. The said order is under challenge in the instant civil revision. 7. Although learned counsel for the sole opposite party vehemently opposes the contentions of learned counsel for the petitioner, but he failed to show that the learned court below in its impugned order dated 05.02.2007 had any way considered the plaintiff’s application dated 18.09.2006 or had any way met the points raised by the plaintiff in the said application although it was legally incumbent upon the learned court below to decide the said application on its merit before affirming its earlier order dated 08.08.2006 and proceeding with the suit. 8. In the said circumstances, without making any comment on the merit of respective claims of the parties, the impugned order of the learned court below dated 05.02.2007 is set aside and the learned court below is directed to pass a fresh order in accordance with law considering the points raised by the plaintiff in his application dated 18.09.2006 as well as in the rejoinder to the said application filed by the defendant. The said matter must be decided by the learned court below by a reasoned order within two months from the date of receipt/production of a copy of this order in the court below. 9. With the said direction, this civil revision is allowed. MPS/ ( S. N. Hussain, J. )