IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2087 of 2008 BIMLA DEVI & ANR Versus CHUNCHUN YADAV & ORS ----------- 2 17/12/2008 Heard Mr. Amar Nath Singh, learned counsel appearing on behalf of the petitioners. There appears to be some force in the submission of Mr. Singh that the impugned order does not spell out any reason whatsoever, for exercising power by the court below under Order IX, rule 7 of the Code of Civil Procedure. He is also correct to the extent that the Court has definitely power to allow the defendant to contest the suit by recalling the exparte order, but for doing so there has to be good cause. In this context by referring the order sheet of the court below dated 27.1.2006 he has submitted that prayer of defendant no.7 for filing written statement and contesting the suit had already been rejected and similarly the prayer of opposite party no. 6A and 6B, who chose to appear in the suit only after publication of notice in the newspaper by way of substituted service was also 2 rejected as recorded in the order dated 28.9.2006 and thus there was no plausible explanation for accepting their prayer to recall the order of ex-parte hearing as has been done in the impugned order. The other part of submission of Mr. Singh also seems to be correct that the dispute in question is really in between the defendant 1st set and plaintiff-petitioners and therefore the real purpose of opposite party nos. 6A, 6B and 7, all whom are heirs and legal representatives of the original defendant no.6 Sri Ram Singh, appears to only delay the final disposal of the suit. Unfortunately, all these aspects which ought to have gone into by the court below while passing the impugned order has not been even taken note of. In that view of the matter, the impugned order is set aside and the court below is directed to reconsider the prayer of the opposite party nos. 6 A, 6 B and 7 in terms of Order IX, rule 7 of the Code of Civil Procedure only on the basis of materials existing on the records. 3 Let it be made clear that this Court has not expressed any opinion that the opposite party nos. 6 A, 6 B and 7 need not be given such opportunity to contest the suit, but then while doing so the safeguard under Order IX, rule 7 of the Code of Civil Procedure has to be definitely and strictly followed. With the aforementioned observation and direction this application is disposed of. (Mihir Kumar Jha, J) Abhay Kumar