Aggrieved by order dated 17.04.2012 in Civil Miscellaneous Appeal No. 5 of 2012, the present writ petition has been filed.

2. The petitioner was plaintiff in Title (Declaration) Suit No. 9 of 2002. In the suit one Lalan Sah was defendant no. 12. The defendant nos. 1 to 4, 6 and 8 to 13 filed a common written statement. After the plaintiff's evidence was closed, the defendants failed to adduce evidence though, several opportunities were granted by the trial court. Finally, the defendants' evidence was closed vide order dated 03.06.2011. The trial court decreed the suit vide judgment and order dated 26.07.2011. The decree was sealed and signed on 03.08.2011. The defendant no. 12 preferred Title Appeal No. 37 of 2011 against the judgment and order passed in Title (Declaration) Suit No. 9 of 2002 however, he filed an application for withdrawing the appeal. The said application was allowed on 25.11.2011 and thereafter, the defendant no. 12 (respondent no. 1 herein) filed a petition under Order IX Rule 13 CPC for setting aside judgment and order dated 26.07.2011 and decree dated 03.08.2011. The said application was registered as Miscellaneous Case No. 6 of 2011. The Miscellaneous Case was dismissed on 13.07.2012, against which the respondent no. 1 filed Civil Miscellaneous Appeal No. 5 of 2012. The appeal preferred by respondent no. 1 has been allowed vide order dated 17.04.2012. Aggrieved, the petitioner has approached this Court.

3. Heard the learned counsel for the parties.

4. Mr. K. P. Deo, the learned counsel for the petitioner submits that the defendant no. 12 along with other defendants filed written statement and cross-examined the plaintiff's witnesses. The trial court granted sufficient opportunity to the defendants for adducing evidence however, the contesting defendants failed to adduce evidence and consequently, defendants' evidence was closed on 03.06.2011 and therefore, it cannot be contended that judgment and order dated 26.07.2011 is an ex-parte order. It is contended that the defendants who contested the suit which was decreed “on contest” against the defendant nos. 1 to 4, 6 and 8 to 13, cannot maintain application under Order IX Rule 13 CPC.

5. Relying on decision in “Lalit Chandra Das and others vs. Sushil Chandra Guha and another” AIR 1980 Calcutta 148 and decision in “Satya Narayan Sah vs. Brij Gopal Mundra” AIR 1991 Patna 60, it is empathetically contended that the judgment in Title (Declaration) Suit No. 9 of 2002 is not exparte judgment and therefore, Miscellaneous Case No. 6 of 2011 was not maintainable.

6. As against the above, the learned counsel for the respondent no. 1 refers to paragraph no. 7 in the judgment in Title (Declaration) Suit No. 9 of 2002 and submits that the judgment in the suit is an exparte order. It is not on the merits of the matter. The defendant no. 12 (respondent no. 1 herein) has taken a specific plea that due to illness he could not prosecute the case and thus, the finding recorded by the trial court that the Miscellaneous Case is not maintainable is patently erroneous. The appellate court has rightly considered the plea taken by the respondent no. 1 and remanded the matter for a fresh consideration on merits.

7. I have carefully considered the submissions made on behalf of the parties and perused the documents on record.

8. In Title (Declaration) Suit No. 9 of 2002, the respondent no. 1 was defendant no. 12. As noticed above, a common written statement was filed by the defendants except, defendant nos. 5, 14 and 15 in which the defendants did not accept the genealogy described in the plaint. The defendants also disputed the assertion of jointness with Sital Prasad Sah. It was contended that Sital Prasad Sah was separate from Ram Prasad Sah and Govind Prasad Sah prior to Mc. Pherson Settlement. Other assertions in the plaint were also disputed by the defendants. It was specifically averred that Sital Prasad Sah was the ancestor of these defendants who purchased the ent