IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.65 of 2009 RAJ KISHORE THAKUR @ MANGNU THAKUR Versus RAM NATH YADAV ----------- 2. 16.1.2009 Heard counsel for the petitioner. There is no dispute that in round one an ex-parte decree was passed which was ultimately set aside at the instance of the petitioner on 28.12.2006. Thereafter the petitioner in the capacity of the defendant in the suit was expected to file his written statement and when that was not done the court below by an order dated 23.4.2007 had debarred him from filing such written statement. If the petitioner had ultimately filed his written statement on 2.1.2008 and thereafter had made a prayer for recalling the order dated 23.4.2007 prima facie the court below has not committed any jurisdictional error in passing the impugned order as that is exactly the requirement of law and a mandate of Order 8 Rule 1 C.P.C. but then there were certain plea of the petitioner which were required to be taken into consideration. The illness of the wife of the petitioner was definitely a factor which could have led to belated filing of the written statement. Therefore, the delay 2 of almost one year in filing of the written statement even from the date of setting aside of ex-parte decree in the circumstances was fit to be condoned. The court below while doing go could have subjected the petitioner to certain cost for the loss and agony caused to the plaintiff but the rejection of the prayer of the petitioner would virtually amount to putting him in the same situation in which the earlier ex-parte judgment had been passed. This Court, therefore, basically guided by the interest of justice would allow the prayer of the petitioner for acceptance of the written statement which as noted above has already been filed on 2.1.2008 and would direct the court below to take the same on record, subject to payment of cost of Rs. 2500/- to be paid by the petitioner within a period of one month from the date of receipt/ production of a copy of this order. With the aforementioned observation, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/