Mungeshwar Sahoo, J.

I have already heard the learned counsel, Mr. S.K. Verma, for the petitioner and the learned counsel, Mr. Mritunjay Kumar on behalf of the respondent No.1.

2. The petitioners who are defendant No.18 and 19 in Title Suit No.545 of 2009 filed an application for recall of the order dated 11.09.2015 whereby petitioners were debarred from filing the written statement. The learned Sub Judge II, Patna by the part of the impugned order dated 31.3.2016 rejected the application considering the conduct of the petitioner and held that the petitioners are trying to delay the disposal of the suit filed by the plaintiff respondent for partition by playing hide and seek game.

3. The learned counsel, Mr. S.K. Verma, for the petitioner submitted that the petitioners could not file the written statement within the period prescribed or granted by the Court because copy of the plaint was never served by the plaintiff in spite of direction of the Court. However, the learned counsel submitted that the petitioners are ready to compensate the plaintiff respondent for delay and the negligence, if attributable to the petitioners. But opportunity should be granted to the petitioner to contest the suit.

4. On the other hand, the learned counsel for the plaintiff respondent submitted that the petitioners and defendant respondent are in possession of the suit property, therefore, in spite of service of notice, the others have not appeared. These two petitioners appeared but no written statements were filed on the ground which is not available to them. According to the learned counsel, as directed by the trial Court, the copy of the plaint was served on the Advocate of the petitioners but he refused to receive the same, therefore, copy of the plaint was filed in the suit in the Court below. The petitioners were appearing on each and every date but they neither received the copy of plaint nor filed written statement, therefore, the learned Court below has rightly debarred them from filing written statement. The plaintiff respondent is residing at Bangalore. The defendant petitioners and defendants respondents are in possession of the property, as such they are adopting dilatory tactics on technical and on frivolous and vexatious grounds with a view to harass the plaintiff who comes to the Court from Bangalore on each and every date. If the order is set aside and the petitioners are allowed to contest then subsequently, other defendant will come one by one and shall seek adjournments for filing written statement then there will be another round of litigation and, thereafter same thing will be repeated by the other defendants and it will cause delay in disposal of the suit which will greatly prejudice the plaintiff respondent who is lady. The petitioners and respondents are enjoying the suit property the value of which is fifty lakhs. Moreover, the plaintiff has already examined one witness in the case and, thereafter they have filed this application. If cost is awarded then the cost must be exemplary cost and real cost incurred by the plaintiffs who attains the Court from Bangalore by air way.

5. The Hon’ble Supreme Court in the case of Sandeep Thapar Vs. S.M.E. Technology Pvt. Ltd. 2014(2)PLJR 284 S.C. has held that ‘the provision as contained under Order 8, Rule 1 CPC is not mandatory. The Court has the power to extend time for filing written statement beyond time schedule and this power of the Court is not taken away but the extension of time is permissible not in a routine manner, but only if it was needed to be given in exceptional cases so as to prevent grave injustice and for that cost may be awarded.

6. In the present case, admitted fact is that if the petitioners are not granted opportunity to file written statement, then there will be uncontested decree and that will be injustice to the defendant. But at the same time, it must be seen that the petitioners are trying to delay the matter and the reason appears to be writ large as