IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.780 of 2009 REENA KUMARI @ NILAM SANGINI W/O TAPAN KUMAR , D/O SHREE KANT JHA R/O VILL CHHAJAN HARI RAI TOLA, P.S. KURHANI,DISTT- MUZAFFARPUR Versus TAPAN KUMAR S/O KAMLA KANT JHA R/O MOH ALKAPURI,P.O. BHAGWANPUR,P.S.SADAR,DISTT-MUZAFFARPUR ----------- 04. 28.06.2010 Heard learned counsel for the appellant. No one appears for the respondent despite having entered appearance. It is urged that the evidence of the respondent was closed on 03.01.2009 when he appeared not desirous of rendering any further evidence. Belatedly on 24.02.2009 the respondent filed an application for recall of the order dated 03.01.2009 and permission to lead evidence. On 06.04.2009, when the matter was called out, no one appeared to press the application on behalf of the respondent when the prayer for recall of the witness came to be dismissed. In the meantime, the examination of the defence i.e. of the petitioner commenced. Her witnesses deposed on 11.05.2009 and 12.06.2009 when cross examination was done on the latter date also. The order dated 12.06.2009 permitting the petitioner to lead further evidence is completely unreasoned based on a justification of cost of Rs. 500/- only. Subject to the appellant not having received costs, we direct that we are not satisfied with the conduct of the respondent in having moved an application belatedly for recall 2 of the order dated 03.01.2009 on 24.02.2009 then allowed it to be dismissed for non prosecution on 06.04.2009. The defence evidence having commenced and cross examined on 12.06.2009, there was no occasion for the court to allow the application of the respondent to lead further evidence and that too by a unreasoned and non-speaking order. The intention and alertness of the respondent in pursuing his rights and remedies is more than apparent in his disinterest despite having entered appearance to support the order in his favour. We are satisfied that the dilatory tactics on his part do not call for any sympathy, subject to the condition observed by us hereinabove with regard to the cost. The order dated 12.06.2009 is conditionally set aside. If the cost as has been received by the petitioner, this application shall be deemed to have been dismissed. The matter stands disposed. Shageer (Navin Sinha, J) (Dinesh Kumar Singh, J.)