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2006 DIGILAW 1214 (JHR)

Pakku Marandi v. Miru Hembrom @ Tok Hembrom

2006-09-20

N.N.TIWARI

body2006
ORDER N.N. Tiwari, J. 1. In this writ application, the petitioner has prayed for setting aside the order dated 26.7.2006 passed by learned 4th Additional District Judge, Godda in Succession Case No. 2 of 2005, whereby the petitioners petition dated 3.7.2006 as also the written statement have been rejected for not filing the same within time, granted by the Court below. 2. It has been stated that though there was some delay in filing written statement, yet the same is not intentional and wilful, as the petitioner could not file the written statement because of her illness. If the petitioners written statement is not accepted, she shall suffer irreparable loss and injury and shall be highly prejudiced and will not be able to defend the said case. 3. Learned Counsel appearing on behalf of the respondent No. 4 submitted that there was wilful delay on the part of the petitioner and she has leisurely filed written statement after inordinate delay and even after the date fixed by the Court below. It has been submitted that the petitioner herself invited the said impugned order and there is no infirmity or illegality in the same. It has been submitted that the petitioner was allowed to file written statement by the Court below subject to payment of cost of Rs. 200/- but she did not pay the said cost and thereby violated the direction of the Court below. 4. From the impugned order I find that the same is based on sound reason and there is no illegality in the order. From the records, it appears that the petitioner did not deposit the cost awarded by the Court below which was the condition for granting time for filing written statement. The petitioner has submitted that she is a tribal lady and at the relevant time she had been ailing and she could not file her written statement within time, granted by the Court below under the circumstance beyond her control. It has been further submitted that in absence of the written statement, she will not be able to defend the said suit and shall be put to irreparable loss and injury, if an opportunity is not given to the petitioner to contest the suit on merit. 5. It has been further submitted that in absence of the written statement, she will not be able to defend the said suit and shall be put to irreparable loss and injury, if an opportunity is not given to the petitioner to contest the suit on merit. 5. Considering that the petitioner is a tribal lady and had taken the ground of illness at the relevant time, an opportunity is given to the petitioner to file a fresh application before the Court below after depositing the cost of Rs. 200/- awarded by the said Court, praying for recall of the order dated 26.7.2006 together with the cost of Rs. 2000/- to be paid to the plaintiff or as may be directed by the Court below. Application must be filed within a period of three weeks after reopening of civil Courts annual Durga Puja vacation, if such application is filed within the said period along with the cost, as directed hereinabove, learned Court below shall consider the grounds made in the application and pass appropriate order also considering that the petitioner is a tribal lady and that she may not be able to defend the said case, if written statement, already filed, is not accepted. The Court below shall pass his order before proceeding further in the matter. 6. With the said observation, this application is disposed of.