IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1758 of 2004 1. (I) Ram Prakash Prasad Son of Koli Devi (II) Ajay Kumar Prasad , Son of Koli Devi 2. Subash Prasad, Son of Mahendra Bhagat 3. Jogendra Prasad, Son of Prasad, 4. Jag Prasad, Son of Shivdani Prasad 5. Musmat Phulmati Devi @ Kuarn Wife of Radha Kishun Prasad All resident of village Alapur Redwaria, P.O.and P.s. Majhagradh, District Gopalganj ……. Plaintiffs /Petitioners Versus 1. NANDJEE PRASAD , Son of Chandra Prasad 2. Nakchhad Prasad, Son of Khedaro Prasad 3. Baidnath Prasad, Son of Shivdhari Bhagat, 4. Kamal Prasad, Son of Shivdhari Bhagat, 5. Bidiya Prasad, Son of Shivdhari Bhagat 6. Braham Prasad, Son of Shivdhari Bhagat, 7. Ramnresh Prasad, Son of Kuar Prasad, 8. Bhola Prasad, Son of Rampati Prasad 9. Musmat Malia Kuar, Wife of Rajballi Prasad 10. Ramakant Prasad, Son of Rajballi Prasad, 11. Ramnath Prasad, Son of Rajballi Prasad All are residents of village Alapur, P.O. and P.S. Mahagradh, District Gopalganj … Defendants / Opp. Parties For the petitioners : Mr. Jitendra Kr. Roy, Advocate For O.P Nos 2 to 7 : Mr.Akhilesh Kumar, Advocate & 9 to 12 ------- 17 30.10.2009 Heard learned counsel for the petitioners and O.P. Nos. 2 to 7 and 9 to 12. None appears for O.P. No. 8. This civil revision is directed against the order dated 13.8.2004 passed by Additional Munsif, II, Gopalganj, in Title Suit No. 86 of 1993, whereby the concerned Court had - 2 - rejected the prayer of the petitioners to restore the ex parte decree as the conditional order dated 10.10.2002 passed in Misc. Case No. 6 of 2002, setting aside the ex parte decree, had been violated by the defendants. It is submitted on behalf of the petitioners that suit was decreed ex parte and thereafter a Misc. Case No. 6 of 2000 was filed for setting aside the ex parte decree. The concerned Court by order dated 10.10.2002 had set aside the ex parte decree on the condition of payment of cost of Rs. 750/- and subject to further condition that on the next date, i.e. on 28.11.2002, the defendants must file written statement failing which the order would be automatically vacated. Since on the fixed date defendants had not filed any written statement, it has been urged on behalf of the petitioners that the Court below ought to have declared that the order setting aside the ex parte decree had already stood vacated. It is manifest from the order of the trial Court that on the fixed date a petition was filed on behalf of the defendants for directing the plaintiffs to file one agreement so that a proper written statement could be filed. The trial - 3 - Court directed the plaintiffs to file the required document. Thereafter, when the document ultimately could not be filed the defendant nos. 3, 5 and 6 filed their written statement and parties were heard and by order dated 25.3.2003 date was fixed for hearing the matter for framing of issues. Then the plaintiffs- petitioners filed a petition for the aforesaid purpose. The Court concerned has come to the conclusion that on several dates the plaintiffs were directed to produce the documents and thereafter on 10.2.2003 when no document could be filed by the plaintiffs then on 10.2.2003 the defendant nos. 3, 5 and 6 had filed their written statement. Then the matter was fixed for framing of issue and the other defendants, who had not filed written statement, were debarred from filing the same. The Court below then in the interest of justice rejected the prayer of the petitioners holding that the petitioners did not immediately raise this issue and raising the same at that stage appeared to be a dilatory tactics. I have heard the parties and in my opinion hyper technicality should not come in way of doing full and complete justice. When the defendants were directed to - 4 - file the written statement on 28.11.2002, on that day in place of filing the written statement they had filed a petition for directing the plaintiffs to produce a document so that they could file a proper written statement. The Court had two options either to reject the prayer and declare that since no written statement had been filed, the order setting aside the ex parte decree automatically stood vacated or it could have allowed the prayer of the petitioners by extending the date for filing written statement. Admittedly prayer of the defendants for direction to the plaintiffs to file necessary document was allowed by the Court. In my opinion that was deemed extension of the time granted for filing of written statement by the Court below expecting the petitioners – plaintiffs to file the necessary document to enable the defendants to file a proper written statement, specially, in view of the fact that it was the same Court which had passed the earlier order setting aside the ex parte decree. Now the issue was to be framed as some of the defendants had already filed written statement and other have been barred for filing . Thus, I do not find any jurisdictional error - 5 - committed by the Court concerned in passing the impugned order dated 13.8.2004. As a result the civil revision is dismissed. Spd/- (Dr. Ravi Ranjan,J.)