Court allows petitioner to file written statement in partition suit despite delays for effective adjudication.

CORAM: HONOURABLE MR. JUSTICE S. B. PD. SINGH ORAL ORDER

24 05-12-2025 The present petition has been filed for setting aside that part of the order dated 16.11.2018 passed by the learned Sub-Judge–VI, Bhojpur at Ara in Partition Suit No. 167 of 2008, whereby the petitioner's application seeking recall of the order dated 23.02.2011 - by which he was debarred from filing written statement has been rejected. The court below has committed an error apparent on the face of the record by observing that the petitioner (defendant no. 5) had appeared on 10.06.2009 and his pairvi was made, though no vakalatnama on his behalf is on record. In fact, it was defendant no. 4 who had appeared on 10.06.2009, but due to misreading of the materials, the court below erroneously treated the petitioner/defendant no. 5 as present and consequently debarred him from filing the written statement. The petitioner, therefore, seeks setting aside of the order dated 16.11.2018 as well as the consequential order dated 23.02.2011, and prays for permission to contest the suit by filing written statement.

2. Learned counsel for the petitioner submits that the petitioner is defendant no. 5 in Title Suit No. 167 of 2008 and was debarred by the Trial Court, vide order dated 23.02.2011, from filing his written statement. It is further submitted that the petitioner thereafter appeared before the Trial Court on 19.09.2018 and filed an application seeking recall of the aforesaid order dated 23.02.2011; however, the said application was also rejected. Learned counsel contends that the suit is one for partition of the suit property among the parties and therefore, filing of the petitioner’s written statement is essential for proper, effective, and complete adjudication of the dispute.

3. Certainly, there has been delay on the part of the petitioner, inasmuch as the suit is of the year 2008 and the petitioner entered appearance only in the year 2018. His plea of lack of knowledge cannot be fully accepted, particularly when his own brothers were contesting the suit. Nevertheless, in order to secure the ends of justice and for proper and effective adjudication of the partition suit, the impugned order rejecting the recall petition is set aside. The petitioner is granted one final opportunity to file his written statement, subject to payment of costs of Rs. 5,000/- (Rupees Five Thousand only) to the plaintiff, within a period of one month from the date of production/receipt of this order.

4. If the plaintiff wants to bring certain facts in rebuttal of written statement, he will be entitled to do so.

5. Accordingly, the instant Civil Misc. No. 537 of

2019 stands disposed of.

6. Learned trial court is requested to dispose of the case at the earliest, preferably within in one year, as the suit is of the year 2008.

7. Both the parties are directed to cooperate in the trial.

(S. B. Pd. Singh, J)