IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.22058 of 2011 ====================================================== Tetar Rai, Son of Hukum Rai, Resident of Village - Pokahan, P.O. & Police Station - Marhowrah, District – Saran. .... .... Plaintiff / Petitioner. Versus 1. Motilal Rai Son of Saryug Rai Resident of Village - Pojhi, P.O. Parsa, Police Station- Dariyapur, District – Saran. 2. Madan Rai Son of Ram Swarath Rai Resident of Village - Pojhi, P.O. Parsa, Police Station- Dariyapur, District – Saran. 3. Yamuna Rai Son of Ramashray Rai Resident of Village - Sahbajpur, P.O. Mobarkpur, Police Station - Marhowrah, District – Saran. 4. Dhaneshwar Rai Son of Sugan Rai Resident of Village - Madhopur, P.O. Orhanpur, Police Station - Marhowrah, District – Saran. 5. Jaleshwar Rai Son of Sugan Rai Resident of Village - Madhopur, P.O. Orhanpur, Police Station - Marhowrah, District – Saran. 6. Krishna Rai Son of Godhan Rai Resident of Village - Madhopur, P.O. Orhanpur, Police Station - Marhowrah, District – Saran. .... .... Defendants / Respondents 1st Set. 7. Sugiya Devi Wife of Ram Pratap Rai , daughter of Saryug Rai Resident of village - Tejpurwa, P.O. Tejpurwa, Police Station - Marhowrah, District – Saran. 8. Sawariya Devi wife of Rachheya Raut, daughter of Bhairav Rai Resident of village - Pathara, P.O. Khodaibagh, Police Station - Garkha, District – Saran. 9. Nagiya Devi Wife of Yamuna Rai, daughter of Bhairav Rai Resident of Village - Darhibari, P.O. and Police Station- Baniapur, District – Saran. 10. Khekhar Rai Son of Jodha Rai Resident of Village - Saraiya, P.O. Parsa, Police Station - Driyapur, District – Saran. 11. Achhelal Rai Son of Dharikshan Rai Resident of Village Sahbajpur, P.O. Mobarkpur, Police Station - Marhowrah, District – Saran. 12. Vichar Rai Son of Dharikshan Rai Resident of Village Sahbajpur, P.O. Mobarkpur, Police Station - Marhowrah, District – Saran. .... .... Defendants / Respondents 2nd Set. 13. Chaniya Devi Wife of Chandradip Rai, daughter of Mewa Raut Resident Patna High Court CWJC No.22058 of 2011 (3) dt.22-12-2011 2 / 3 2 of Gaura, P.O. Gaura, Police Station - Marhowrah, District – Saran .... .... Defendants / Respondents 3rd Set. 14. Nanhaka Devi Wife of Ganga Rai, Daughter of Hukum Rai Resident of Village - Derhi Bari, P.O. & Police Station - Baniapur, District – Saran. .... .... Defendants / Respondents 4th Set. ====================================================== Appearance : For the Petitioner : Mr. Umesh Kumar Mishra, Advocate. For the Respondent/s : ---- ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE ORAL ORDER 3 22-12-2011 Feeling aggrieved by the order dated 11th December 2007 made by the learned Sub Judge VII, Saran in Partition Suit No. 252 of 1995, the plaintiff has preferred this petition under Article 227 of the Constitution. Learned Advocate Mr. Umesh Kumar Mishra has appeared for the petitioner. He has submitted that earlier the petitioner had filed Civil Revision No. 249 of 2008 under Section 115 of the Code of Civil Procedure. Later, that Civil Revision application was withdrawn with the permission of the Court to file a petition under Article 227 of the Constitution of India. Hence, the present petition. In the suit instituted against as many as 14 defendants, the defendant no. 8 did not appear to contest the suit. When the suit was adjourned for passing judgment, the defendant no. 8 appeared before the court and filed application for recall of the order and for permission to contest the suit. According to the defendant no. 8, she had not received the summons of the court. She, therefore, had no opportunity to appear before the court and to contest the suit. The application was contested by the plaintiff, the present writ petitioner. Patna High Court CWJC No.22058 of 2011 (3) dt.22-12-2011 3 / 3 3 Learned Sub Judge after hearing the parties, by the impugned order dated 11th December 2007, recorded the finding that the summons to the respondent no. 8 was never issued at her proper address. She had, therefore, not received the summons of the court. The suit was dismissed for default on 19th August 2002. The same was later restored on 28th March 2003. After restoration of the suit, no summons was issued to the defendant no. 8. In view of the finding that the defendant no. 8 was not properly served, the learned Sub Judge allowed the application and permitted the defendant no. 8 to contest the suit. The defendant no. 8 was permitted to file the written statement and to lead evidence. Feeling aggrieved, the plaintiff has approached this Court; first under Section 115 of the Code of Civil Procedure, and now, under Article 227 of the Constitution. I have heard learned Advocate Mr. Mishra extensively. He has not been able to disprove the fact that the defendant no. 8 was not served. In view of the finding recorded by the learned Sub Judge, the impugned order dated 11th December 2007 does not call for interference. Petition is dismissed in limine. Dilip. (R.M. Doshit, CJ)