IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1387 of 2006 RABINDRA NARAYAN SINGH Versus VIDYANAND SINGH & ORS ----------- 2 26.9.2008 Heard counsel for the petitioner. By the impugned order dated 18.5.2006, the court below has rejected the prayer of the defendant-petitioner for recall of the order dated 10.8.2004 by which he had been debarred from filing the written statement. Learned counsel for the petitioner has submitted that the plaintiff-opposite parties had filed a suit questioning the compromise decree dated 4.12.1999 passed in Title Suit No. 139 of 1999 which was in favour of the defendant-petitioner and against the plaintiffs-opposite parties and in the same suit, the subsequent sale deed dated 21.1.2000 executed by the defendant-petitioner was also questioned. In the said suit, when the defendant-petitioner had appeared on 2.9.2003, he, being the sole defendant, could not file his written statement due to some serious family problem on account of which he had to go to his village home and as such, he had filed an application on 10.9.2004 on return 2 from his home for recalling the order dated 10.8.2004 by which he had been debarred from filing the written statement. According to the petitioner, the court had permitted him to file his written statement and he had also done so on 3.12.2004 but due to the mistake on the part of the lawyer, the application for condoning the delay in filing of the written statement was not filed and therefore, when such an application was ultimately filed on 10.3.2006, the court below had rejected such prayer by holding that the petitioner had already stood debarred from filing his written statement by an order dated 10.8.2004. Counsel would further submit that once the court below had passed an order on 10.9.2004 allowing the petitioner to file his written statement and the same was also filed on 3.12.2004, the court below ought to have adopted a literal attitude specially when the petitioner was the sole defendant in whose absence the suit could have been decided ex-parte leading to multiplicity of litigation. He has also drawn attention of this Court that as a matter of 3 fact the suit in question was not maintainable in terms of Order 23 Rule 3A which prohibits filing of a fresh suit for questioning a compromise decree. Strictly speaking, there are some laches on the part of the petitioner in contesting the suit. Whether the suit is maintainable or not in terms of Order 23 Rule 3A C.P.C. could have been or can still be gone into by the court below but that would not absolve the defendant-petitioner from filing his written statement in time. At the same time, when the court on 10.9.2004 had allowed the petitioner to file his written statement and the petitioner had also done so by filing the same on 3.12.2004, the court below taking into account that the petitioner was sole defendant, ought to have been accepted such written statement even by imposing some cost to compensate the loss of plaintiff/opposite party. The approach of the court below that no fresh application was filed by the petitioner for condoning the delay and recall of the order dated 10.8.2004 debarring the petitioner from filing the written statement would be a 4 hyper technical approach in view of the admitted position that soon after such an order, the petitioner had already filed his written statement. The court below had to take into account that the petitioner was the sole defendant and delay in filing of the written statement could have been condoned even by adequately compensating the plaintiff-opposite party for the period 2.9.2003 to 3.12.2004 in the light of the judgment of the Apex Court in the case of Kailash Vs. Nanhku & Ors. reported in AIR 2005 SC 2441. Considering all these aspects of the matter, this Court would set aside the impugned order and direct the court below to accept the written statement of the defendant- petitioner dated 3.12.2004 on depositing of Rs. 3,000/- for its being paid to the plaintiff-opposite parties within a period of one month from the date of receipt/production of a copy of this order. With the aforementioned observations/ direction, this application is allowed. Rsh (Mihir Kumar Jha, J.)