IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1099 of 2007 RAM KRIT SINGH @ KRITT SINGH Versus KISHUN RAM & ORS ----------- 7 19.8.2008 Heard counsel for the petitioner. By the impugned order the prayer of the petitioner to recall an ex-party order has been primarily rejected on the ground that the order proceeding ex-parte against the petitioner dated 29.5.1998 was valid and the plea of the petitioner the service of notice on him at his village address could not be challenged only because he had claimed to be posted at Lohardagga. This Court on perusal of the materials on record would find that the suit was initially filed against the father and the uncle of the petitioner who was only the two defendants in the suit subsequently, upon death of the father of the petitioner, the petitioner was substituted by disclosing only his village address. Apparently the summons which were sent through the Court or the registered notices which were sent on the village address are said to have been not served on the petitioner and the presumption of the court below that the - 2 - petitioner had knowledge from his family members by itself cannot be sufficient proof of the service of summons. Thus this Court is not satisfied with the specific plea raised by the petitioner in his application seeking recall of the ex-parte order but then inabsence of any proof of service of summons on the petitioner either through the ordinary process of the Court or through registered cover, only the deem service could not have been sufficient to disallow the petitioner from contesting the suit. The fact with regard to the petitioner being employed and posted at Lohardagga was not disputed by the plaintiffs-opposite parties and therefore, the interest of justice require that when the petitioner had filed his written statement after acquiring knowledge of the suit and had made a prayer to recall the ex-parte order, the same in all fairness could have been allowed specially when in the order dated 28.5.1998 (Annexure-3) the Court below while recording service of summons on the substituted heir had taken note of non-receipt of the acknowledgement due under the registered cover. At the same time, whatsoever may be - 3 - the plea of the petitioner in capacity of the substituted heir. It is true that even other defendants had not filed their written statement and as such if for some technical reason such compact ex-parte order dated 28.5.1998 has to be recalled by putting the parties in a situation that was existing 10 years back, the same cannot be done unless, the petitioner compensates the loss caused to the plaintiff who as per the impugned order have also examined two witnesses. This Court would therefore, accept the offer of the counsel for the petitioner to allow contesting the suit on payment of cost. Keeping in view that the plaintiff-opposite parties have been harassed for almost last 18 years and at least 10 years even after the date of the ex-parte order, such amount of cost is quantified at Rs. 7500/- which would be a condition precedent for allowing the petitioner to contest the suit. Consequently, in view of the aforementioned facts and circumstances, this Court would set aside the impugned order and would direct the Court below to allow the petitioner to contest the suit in which written statement has already been filed by the - 4 - petitioner. The petitioner, however, must deposit the cost of Rs. 7500/- within a period of three months from the date of receipt/production of a copy of this order whereafter the Court below will recall the two witnesses examined by the plaintiff for there being cross-examined and thereafter be further hearing of the suit would proceed in accordance with law. Keeping in view that the suit is of the year 1990, the petitioner will not be given any unnecessary adjournment in course of hearing of the suit and the suit must be decided 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 disposed of. Shahid (Mihir Kumar Jha, J)