IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2185 of 2005 GHURAN YADAV Versus ACHHAIBAR YADAV & ORS ----------- 5 18.07.2008 Heard counsel for the petitioner. Despite service of notice and in fact appearance filed on behalf of the opposite party Nos. 1 and 2, no one appears on their behalf. In the opinion of this Court, when one error was sought to be rectified by the Court below in the impugned order it had also a duty to see as to whether there were still similar error which, if not rectified could have vitiated the entire proceedings, rendering its entire exercise of disposing the suit to be futile. It is not in doubt that it was by mistake that the order dated 10.2.2005, debarring the defendant- petitioner from filing their written statement had been passed despite the fact that the petitioners had already deposited the cost of Rs. 400/- as directed in the order dated 24.5.2003. Therefore, when the order dated 10.2.2005 was sought to be rectified holding to be a clerical error, the Court below was further required to look into the aspect as to whether its order dated 27.6.2005 fixing the case for judgment after completing ex-parte hearing in the given circumstances, was - 2 - justified. This Court in fact, would accept the submission of the counsel for the petitioner that when the Court below had passed the order dated 27.6.2005 it had assigned no good cause and in fact had mechanically fixed the case for ex-parte hearing. The consequence of fixing a case for ex-parte hearing is always very serious and therefore, the requirement of Order IX Rule 7 of the Code of Civil Procedure has to be strictly followed. This aspect in fact stand well settled and reference in this connection may be made to the judgment of the Apex Court in the case of Arjun Singh Vs. Mohindra Kumar & Ors. reported in AIR 1964 SC 993. and the judgment of this case in the case of Sukhlal Mahton and others Vs. Amrit Mahton and others reported in 1970 BLJR 519 . In that view of the matter, this Court would set aside the impugned order dated 29.7.2005 refusing to recall the order of the ex-parte hearing dated 27.6.2005 and consequently both the aforesaid orders being vitiated by apparent jurisdictional error, are hereby set aside. The Court below is directed to take up the hearing afresh and permit the petitioners to cross- examine the witnesses examined by the plaintiffs- opposite parties as also lead its own evidence. - 3 - Considering the fact that the suit is of the year, 1999 and requires to be disposed of expeditiously, this Court would direct the petitioner to complete the cross- examination of the witnesses of the plaintiffs-opposite parties within a period of three months from the date of receipt/production of a copy of this order and thereafter also complete its evidence both oral and documentary within next three months. The parties thereafter must complete their arguments expeditiously so as to enable the trial Court to deliver the judgment within a period of one year from the date of receipt/production of a copy of this order. With the aforementioned observations and directions this Civil Revision application is allowed to the extent indicated above. BCJ (Mihir Kumar Jha, J.)