IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1434 of 2006 TARKESHWAR SAH & ORS Versus PARSURAM SAH & ORS ----------- 2. 19.11.2008 Heard counsel for the petitioners. The suit of the year 1981 and that too for partition has been waiting for final adjudication only because the defendants had not chosen to co- operate in final disposal of the suit. Even if all the plea of the petitioners as against the impugned order is accepted in its totality, that they are the heirs of the original defendants, who were contesting the suit, it does not improve their case, inasmuch as at least from 6.3.2003 when they were given opportunity to file their written statement they did not choose to do so and ultimately the impugned order came to be passed refusing to recall ex-parte order which of course in continuation to the earlier order dated 13.5.2004 as with regard to acceptance of written statement. Mr. Nagendra Rai, learned counsel appearing on behalf of the petitioners, however, would submit that the substituted heirs had hardly any knowledge of the facts and therefore, even if they had to adopt written statement already filed by their father, it took some time. He would, therefore, submit that in a suit for partition substantial right of not only the plaintiff but also the defendant is involved, an opportunity may be given to contest the suit on merit, else the petitioners would get rerooted from their ancestral home. This Court taking into account that the 2 petitioners are substituted heirs would allow their prayer to contest the suit on merits provided they pay a sum of Rs. 4000/- to the plaintiff within a period of one month from the date of receipt/ production of a copy of this order. In the event the payment of Rs. 4000/- is made in the prescribed period the petitioners would be allowed to adopt the written statement already filed by their father as also cross-examine the witnesses of the plaintiff and also lead evidence in their defence. Mr.Rai assures that so far evidence of the defendants petitioners is concerned, that will be concluded within a period of four months. Taking, therefore, interest of justice into consideration and that the defendants petitioners also have been prepared to compensate the loss of the plaintiff, this Court would allow this civil revision application by setting aside the impugned order and directing the court below to allow the petitioners to complete their case within the time framed as indicated above. (Mihir Kumar Jha,J.) Surendra/