Sunil Dutta Mishra, J.—Heard Mr. Jitendra Kishore Verma, learned counsel appearing for the petitioners and Mr. Y.V. Giri, learned Senior Advocate appearing for the respondents.

2. This Civil Miscellaneous Petition has been filed under Article 227 of the Constitution of India against the Order dated 24.03.2018 passed by learned Additional District Judge- XIII, Patna in Title Suit No. 5031 of 2014 whereby the petition dated 04.08.2015 of respondents no. 1 and 2 ( arrayed as defendants no. 2 and 3 in the Title Suit) for recall of order dated 04.07.2015 has been allowed with cost.

3. The brief facts of the case are that the petitioners/ plaintiffs have filed a Civil Suit being Title Suit No. 5031 of 2014 before the District Court, Patna, seeking inter alia, a decree of permanent injunction against the respondent from using and trading of the registered trade mark ‘HERO’ in relation of bicycle and bicycle parts and also sought mandatory injunction, rendition of accounts and other reliefs against the respondents.

4. The Claim of the petitioners is that summons of the said suit was served on 29.09.2014. Respondent no. 3 appeared on 11.11.2014 before the Trial Court and filed an application seeking extension of time to file his written statement. On 16.12.2014, the respondents no. 1 and 2 appeared and filed applications seeking time to file their written statement and vide order dated 16.12.2014, the learned Trial Court allowed time to file written statement and the matter was fixed for hearing on 23.12.2014 but on that day the Court was on leave and on next fixed date i.e. 06.01.2015, the lawyers were abstaining from work and accordingly the matter was fixed for further proceeding on 20.01.2015. On 20.01.2015 with the consent of parties, the suit was adjourned to 10.02.2015 and the learned Trial Court directed that in the meantime, the defendants are directed to file their written statement failing which no further time will be allowed.

5. On 10.02.2015, the respondents no. 1 and 2 filed their written statement. The case was adjourned time and again and vide order dated 04.07.2015, the learned Trial Court observed that the defendant appeared on 16.12.2014 and the statutory period for filing written statement has already been expired and no reasonable reply on the point of filing written statement has been given by defendant or no time petition for filing written statement has been filed which shows that they have not to file written statement accordingly they were debarred from filing written statement and the record was fixed for 24.07.2015 for settlement of issue.

6. Thereafter, on 04.08.2015 respondent nos. 1 and 2 filed an application under Section 151 of the Code of Civil Procedure, seeking recall of the said order dated 04.07.2015 which was allowed vide the impugned order dated 24.03.2018 subject to cost of Rs. 5,000/- and it was directed that after depositing the said cost, their written statement may be accepted. The learned court below observed that defendant no. 2 and 3 filed their written statement on 10.02.2015 but order dated 04.07.2015 shows that the defendants have not filed their written statement and thus the said order was based upon lack of knowledge that defendants had filed their written statement.

7. It appears from the record that by order dated 22.09.2014, the learned Trial Court restrained the defendants from using the trademark name ‘HERO’ either by itself or in conjunction with any prefix or suffix for bicycles or parts thereof. Defendant nos. 2 and 3 thereafter filed a petition under Order 39 Rule 4 CPC to set aside the ex-parte order dated 22.09.2014 which was dismissed vide order dated 21.03.2015. In appeal being Miscellaneous Appeal No. 121 of 2015, this Court vide order dated 07.07.2015 allowed the appeal and set aside the order dated 21.03.2015 passed by the Trial Court. The plaintiffs/ petitioners filed Special Leave Petition before the Hon’ble Supreme Court which was converted into Civil Appeal No. 8478/