IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.824 of 2006 KAMAL KISHORE CHOUDHARY Versus RISHIKESH SINGH & ORS With C.R. No.1263 of 2006 RISHIKESH SINGH Versus RAMESHWAR SINGH & ORS ----------- 8 28.7.2008 Heard Counsel for the petitioner in both the cases who are representing the plaintiff and defendant in Title Suit No. 103/2004. After hearing the parties, this Court is of the opinion that Civil Revision No. 824 of 2006 filed by the defendant, petitioner as against order dated 7.3.2006 passed by the Court below rejecting his application for recalling the order dated 5.3.2005, fixing the suit for ex-parte hearing, cannot be sustained. It is not in doubt that the service of summons on the defendant, petitioner was sought to be effected by way of substituted service by publishing it in a newspaper which had hardly any circulation much less a wide circulation. As a matter of fact, the counsel for the plaintiff, petitioner having 2 failed to explain the validity of such service of notice/summons in the manner prescribed in the Code of Civil Procedure had ultimately agreed that the defendant, petitioner should be allowed to contest the suit on merit provided the defendants would compensate the loss sustained by the plaintiff in monetary terms in course of pursuing the hearing of the suit in a period of more than four years during which the plaintiff has also adduced evidence by examining his eight witnesses. Adverting to this aspect, the counsel for the defendant, petitioner in Civil Revision No. 824 of 2006 had submitted that the defendant would be prepared to pay a reasonable amount of cost as may be fixed by this Court for allowing them to contest the suit on merit. Consequently, taking the aforementioned stand of the parties, the impugned order dated 7.3.2006 as also the earlier order dated 5.3.2005 fixing the suit for ex-parte hearing are set aside and Civil Revision application No. 824 of 2006 is hereby allowed. 3 At the same time, the grievance of the plaintiff, petitioner in Civil Revision No. 1263 of 2006 as against the order dated 27.6.2006 passed by the Court below rejecting the prayer for exhibiting certain documents into evidence can also not be sustained specially when this Court has passed an order allowing the defendant to contest the suit on merit, which therefore would require and/or enable the plaintiff to lead their evidence afresh The counsel appearing on behalf of the defendant (petitioner in C.R. No. 824 of 2006) has also agreed that the defendant will have no objection if the Court below consider afresh the relevance of the documents filed by the plaintiff for their being exhibited into evidence. In that view of the matter, this Court would also set aside the impugned order dated 27.6.2006 and allow the Civil Revision application No. 1263 of 2006 with a direction to the Court below that it would be consider the relevance of the documents sought to be exhibited by the plaintiff, petitioner and pass afresh order at 4 appropriate stage, of course, after hearing the counsel for the defendant. In that view of the matter, both the impugned orders in the two Civil Revision applications have been set aside and the suit is of the year, 2004, this Court would direct the defendant to file their written statement within three months from the date of receipt/production of a copy of this order in the Court below and thereafter once the issue in the light of the pleadings are framed, the defendant will be given an opportunity to cross-examine the witnesses already produced and examined by the plaintiff. Such exercise however must be completed within a period of three months from the date of framing of the issues. The plaintiff, if he would require to lead any further evidence beyond what has already been led by him, would to do so by completing his evidence within a period of six months from the date of framing of the issues and thereafter the defendants must produce their witnesses and complete their leading of evidence in all respect within a 5 period of six months from the date of closing of evidence by the plaintiffs. This Court having taken into note that the plaintiff has been pursuing his case with due diligence and the hearing of the suit has to now re-commence only on account of laches/lapse on the part of the defendant, would direct the defendant to pay a cost of Rs. 5000/- to the plaintiff within a period of three months from the date of receipt/production of a copy of this order in order to compensate the plaintiff, the loss sustained by him on account of the delay caused by the defendant for a period of more than four years in disposal of the suit. The failure on the part of the defendant to pay such cost within the aforementioned period would disentitle him to contest the suit. With the aforementioned observations and directions both the Civil Revision applications are disposed of. Rsh (Mihir Kumar Jha, J.)