IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10349 of 2010 1. Baso Mahto 2. Rabindra Mahto Both sons of Late Yugal Mahto, R/o Vill. Din, P.S. Birpur (Barauni), Distt.- Begusarai. …… Defendant nos. 2 & 3/Petitioners. Versus 1. Umeshwar Prasad Singh, S/O Late Ramautar Singh, R/o Vill. Din, Pergana Malki, P.S.- Birpur (Barauni), Distt.- Begusarai. ………….Plaintiff –Respondent Ist Party 2. Ram Naresh Sharma, 3. Hare Ram Sharma 4. Ratan Sharma 5. Anil Sharma All sons of Late Asho Sharma. 6. Girija Devi, W/o- Late Asho Sharma, All residents of Vill.- Muzafara, P.S.-Birpur, (Barauni), Distt.- Begusarai. 7. Dropadi Devi, D/o Late Asho Sharma, W/o Sri Arjun Sharma R/o Vill.- Masti Fatehpur, P.S. -Muffasil, Distt.- Begusarai 8. Bimal Devi, W/o Sri Dayanand Sharma, D/o Late Asho Sharma, R/o Vill.- Govindpur, P.S.- Rosera, Distt.- Samastipur. ……….. Respondents 2nd Parties. 9. Phul Kumari Devi, W/O Late Maheshwar Mahto. 10. Deepak Kumar, S/O Late Maheshwar Mahto 11. Maula Devi 12. Renu Devi 13. Rekha Devi 14. Preeti Devi 15. Reman Devi 16. Anhula Devi All daughters of Late Maheshwar Mahto, R/O Vill.- Dhi P.S.-Birpur, (Barauni), Distt.- Begusarai. 17. Ranju Devi, D/O Late Sultan Mahto, W/O Sri Ganesh Mahto, R/O Mohalla Lohiyanagar, P.S. Town, Distt.- Begusarai 18. Pinku Devi, D/O Late Sultan Mahto, W/O Sri Dilip Mahto, R/O Vill.- Ratanpur, P.S. -Town, Distt.- Begusarai. 19. Rinku Devi, D/O Late Sultan Mahto, W/O Sri Shambhu Mahto, R/O Vill.- Chakaur, P.S. Matihani, Distt.- Begusarai 20. Sanju Devi, D/O Late Sultan Mahto, W/O Sajjan Mahto Vill.- Pahoara, P.S. New Kothi, Distt.- Begusarai 21. Guria Devi, D/O Late Sultan Mahto, W/O Sri Pintu Mahto, R/O Vill.- Cheriya Bariyarpur, P.S. Cheriya Bariyarpur, Distt.- Begusarai. 22. Marni Devi, W/O Late Sultan Mahto, R/O Vill.- Dih, P.S.-Birpur, (Barauni), Distt.- Begusarai 23. Arti Kumari 24. Madhu Kumari Both minor daughters of Late Suresh Mahto, under the guardianship of their aunt Marni Devi R/O Vill.- Dih, P.S. Birpur (Barauni), Distt.- Begusarai. 2 ………Defendants Ist Party/Respondents 3rd Party. 25. Nanu Mahto, S/O Late Ram Swaroop Mahto, R/O Vill.- Dih, P.S.- Birpur, (Barauni), Distt.- Begusarai. ………Defendants 2nd Party/Respondents 4th Party For the petitioners : Mr. Shyameshwar Dayal, Advocate. Mr.Manoj Kumar Sinha, Advocate. ----------- 2. 03.11.2010 1. Heard learned counsel for the petitioners. 2. This writ petition is directed against order dated 12.05.2010 by which Sub-ordinate Judge-V, Begusarai, rejected the application of Defendant Nos. 2 & 3 (petitioners) to recall order dated 12.08.2005 debarring them from filing written statement and to accept the written statement filed by them on 4.01.2007 in Title Suit No. 90 of 2004. 3. The aforesaid title suit was filed by plaintiff- Respondent Ist Party for declaration of title and for other ancillary reliefs. In the said suit notices were issued to defendants, whereafter defendant nos. 2 & 3 (petitioners) appeared in the suit on 10.05.2005 and prayed for adjournment and asked the plaintiffs to serve a copy of the plaint. No written statement having been filed within 90 days as per the requirement of Order VIII Rule 1 of the Code of Civil Procedure, the court below debarred them from filing their written statement vide order dated 12.08.2005. 4. It transpires that about 17 months thereafter the said defendant nos. 2 & 3 (petitioners) filed their written statement in the court and five months after filing of the written statement, they filed an application for recall of order dated 12.08.2005 and 3 for acceptance of the written statement. The said application was dismissed by the trial court on 09.12.2009 due to non-prosecution, whereafter also defendant nos. 2 & 3 (petitioners) remained silent and all of a sudden on 5.5.2010 they again filed an application for accepting the said written statement and for recall of order dated 12.08.2005. This application has been rejected by the court below vide its impugned order dated 12.05.2010. 5. So far as the plea of the petitioners that the delay was caused due to non-service of the plaint to the defendants, is concerned, it is quite apparent that summons/notices are sent in suit along with copies of the plaint and hence there was no requirement at all for the plaintiff to serve a copy thereof upon the defendants. Furthermore, if the defendants had lost their copies of the plaint they could have obtained the same from the court itself. But from the aforesaid facts, it is quite apparent that the written statement was filed after a delay of about one and half year and even the application for accepting the written statement was filed after about five months for filing of the written statement and even that was dismissed due to non prosecution. 6. No cogent or reliable reasons having been disclosed by defendants-petitioners, this court does not find any illegality in the impugned order rather the said order is found to be inconsonance with the settled principle of law with regard to Order VIII Rule 1 of the Code of Civil Procedure as per the decision of this court in case of Smt. Sunita Devi & Ors.-Petitioners Vs. 4 Abdhesh Kumar Sinha @ Kamleshwari Pd. Sinha & Ors.-Opp. Parties. reported in 2005(2) PLJR 482 as well as order of the Apex Court in case of Kailash-Appellant Vs. Nankhu & Ors.- Respondents reported in 2005 (3) PLJR (SC) 241. 7. Accordingly, this writ petition is dismissed. Sujit (S.N.Hussain,J.)