SHIV KUMAR Vs. VITH ADDITIONAL DISTRICT JUDGE BANDA

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) Petitioner and three of his brothers, i.e. respondents No.9, 10 and 11 in this petition were subsequently impleaded as defendants in O.S. No.65 of 1987. Their father Sri Buddhu Sahu was arrayed as defendant since the inception of the suit. He is respondent No.8 in this writ petition. Petitioner and his brothers did not appear in the suit, hence the suit was directed to proceed ex parte against them. Learned counsel for the petitioner states that as far as the order directing the suit to proceed ex parte against respondents No.9 to 11 is concerned, that has been set aside. However, by the impugned orders, the said order against the petitioner has not been set aside. Civil Judge, Senior Divison, Banda on 22.02.2001, rejected the application of the petitioner to set aside the order directing the suit to proceed ex parte against him. Against the said order, petitioner filed Revision No.10 of 2000, which was dismissed on 23.02.2001 by VIth A.D.J., Banda, hence this writ petition.

(3.) In my opinion, when all the defendants are contesting the proceedings, then in the interest of justice, petitioner may also be permitted to contest the proceedings. Moreover, the suit is for partition and in partition suit it is more appropriate that all the parties concerned must be heard. In certain circumstances, even if a party has not been duly vigilant still ex parte order or order directing the suit to proceed ex parte may be set aside on payment of good cost. Moreover, even without setting aside order directing the suit to proceed ex parte, defendant is entitled to participate in the proceedings of the writ from the stage when he appears. In the instant case the only question involved is as to whether petitioner should be permitted to file written statement or not. Through impugned orders too technical view has been taken, which is not warranted in restoration and delay condonation matters.