IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1102 of 2006 BIMLA DEVI Versus SHYAM PRASAD YADAV & ORS ----------- 4. 21.10.2008 Heard counsel for the parties. In the opinion of this Court while it is true that when substantial justice and technical consideration are pitted against each other, cause of substantial justice must prevail but at the same time a person who is put to an absolute reverse situation on account of grant of such substantial justice to another has to be duly compensated. True it is that in a suit decided ex-parte the courts have always taken a liberal attitude but if it is found that such non-appearance of the defendants was not well explained, rather deliberate, the court while allowing such prayer on the ground of substantial justice will always have to take into account, the loss that has been suffered by the other side or would be subjected to in event of restoring the suit for being heard on merit. In the present case, it is found that the suit was instituted in the year 1991 and the same was decreed ex-parte on 2 8.8.2000. Thereafter the miscellaneous case came to be filed and that too without filing any limitation petition in the year 2001 and when the same was dismissed by a reasoned order the appellate court has sought to reverse the same by setting aside the ex- parte decree only on the ground that the opposite party was ill. Such illness in fact has not been conclusively proved and it is only oral evidence which somehow weighed upon the court below to accept the ground of illness. While this Court would not like to make any further comment on the approach of the court below because illness is a fact which can normally be proved with the documentary evidence but then as there was some sort of explanation that the doctor who has treated had settled at Surat, therefore, his objection for recording evidence was not possible. The lower appellate court even if had been satisfied with the sufficient cause it had to ensure that the amount of cost is proportionate to the loss sustained by the plaintiff petitioner. That being so, while this Court in the interest of justice would not interfere 3 with the impugned order seeking to restore the suit for its rehearing but then as the petitioner has been sufficiently harassed by the contesting defendants- O.P.Nos. 1 and 2, they must compensate the plaintiff petitioner by paying a further cost of Rs. 15,000/- i.e. beyond Rs. 3000/- already fixed by the lower appellate court. Such amount must be deposited within a period of three months from today. The moment proof showing payment of such cost is filed before the court below the plaintiff petitioner will produce his witnesses for their cross-examination and such exercise must be completed within a period of three months. It is made clear that the day such witnesses of the plaintiff would appear, the defendants must cross-examined them and in the event they refused to do so for any ground whatsoever they shall be discharged by the court below. At the same time as soon as the cross-examination of evidence of the witnesses of the plaintiff is completed, the defendants must also complete their evidence both oral and documentary within next three 4 months so that the suit in any event is disposed of within a period of one year from today. In view of the fact that hearing of the suit virtually has to recommence the contesting defendants or any defendant in the event choose to rely on those document, copies thereof must be furnished on the plaintiff before cross-examination of the witnesses of the plaintiff so that if necessary the plaintiff can take remedial action against the proposed case of the defendants. It is made clear that in the event opposite parties no. 1 and 2, the defendants to the suit, do not pay the cost of Rs. 15,000/- as fixed by this order or Rs. 3000/- as fixed by the court below within the aforementioned period of three months this order shall not be given effect to and the decree dated 8.8.2000 shall stand restored. (Mihir Kumar Jha,J.) Surendra/