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2005 DIGILAW 548 (PAT)

Sk. Sattar @ Abdul Sattar v. Bafatan

2005-06-21

S.N.HUSSAIN

body2005
Judgment S.N.Hussain, J. 1. Heard learned counsel for the petitioner and learned counsel for the opposite parties. 2. The petitioner is defendant in Title Suit No. 84/2003, which the opposite parties have filed for declaration of title and for other ancillary reliefs. 3. The petitioner is aggrieved by order dated 14.3.2005 passed in the aforesaid suit, by which the learned Munsif, Katihar rejected the petition of the defendant-petitioner under Order IX Rule 7 of the Code of Civil Procedure and debarred him from filing his written statement. 4. It appears from the certified copy of the order-sheet that on 9.8.2004 the learned Court below found that summons sent to the defendant was not received, whereafter by order dated 3.9.2004 the Court below held that the defendant had received notice sent by registered post on 8.9.2004. Learned counsel for the petitioner submits that the defendant-petitioner did not receive any summon or notice from the Court below and immediately after learning about the suit he appeared on 7.3.2005 and filed a petition on the same day for recalling the order for ex parte hearing of the suit and for allowing him to contest the suit by filing written statement. Learned counsel for the petitioner further submits that without holding any enquiry and without applying its mind the learned Court below had passed the impugned order rejecting his petition. He further submits that it was incumbent on the learned Court below to fix a date for the defendant to file written statement after the Court below held that notice was served, but no such date had been fixed by the learned Court below. He further submits that the case was taken up for ex parte hearing although no order for fixing the case for ex parte hearing was passed. In the said circumstances, he submits that the impugned order is illegal, arbitrary and perverse. 5. He further submits that the case was taken up for ex parte hearing although no order for fixing the case for ex parte hearing was passed. In the said circumstances, he submits that the impugned order is illegal, arbitrary and perverse. 5. On the other hand, the learned counsel for the opposite parties vehemently opposes the contention of the learned counsel for the petitioner and submits that from the order sheet itself it is quite apparent that notice had been served upon the defendant-petitioner by registered post, but inspite of receiving the notice and having full knowledge and information about the suit the defendant intentionally and knowingly did not appear for several months and after expiry of 90 days there was no occasion for the Court below to entertain the petition of the defendant and allow him to contest the suit, specially when the intention of the defendant was clearly only to delay the disposal of the suit. Hence he submits that the impugned order is fully legal, proper and justified. 6. After hearing the learned counsel for the parties and after perusing the materials on record, it is quite apparent that the Court in its order dated 3.9.2004 had completely confused the matter as he had assumed that the notices were served on 8.9.2004. It is also clear from the record that neither the learned Court below had fixed any date for filing written statement, nor it had passed any order fixing a date for ex parte hearing. On the other hand, the petitioner had specifically stated that he had no knowledge or information about filing of the suit and he had not received any notice from the Court below. In any view of the matter the case of equity demands that the suit be adjudicated after hearing both the parties on their pleadings and after considering the evidence adduced by them. Furthermore, the suit is only of 2003 and no delay will be caused if the defendant is allowed to file his written statement, specially when there is no order of the learned Court below fixing any date for filing written statement. Hence there is no question of violation of any order of the Court. 7. Furthermore, the suit is only of 2003 and no delay will be caused if the defendant is allowed to file his written statement, specially when there is no order of the learned Court below fixing any date for filing written statement. Hence there is no question of violation of any order of the Court. 7. In the aforesaid circumstances, I set aside the impugned order of the learned Court below and allow this civil revision and direct the defendant-petitioner to file his written statement positively within 30 days from today. However, if the defendant-petitioner fails to comply this order, the learned Court below will be at liberty to proceed with the suit ex parte. However, since the plaintiffs have been put to some loss, this order will be subject to payment of cost of Rs. 2.000.00 (rupees two thousand) to the learned counsel for the opposite parties Mr. Md. Quamrul Hoda, Advocate within three weeks from today, failing which this civil revision shall stand dismissed.