AVILASH KUMAR @ MUKESH KUMAR Vs. BRAHMADEO SINGH

JUDGEMENT

(1.) Defendant-petitioner, being aggrieved by the order dated 6.4.2005 passed by the Subordinate Judge, II, Patna in T.S. No. 394 of 2002 refusing to recall the order dated 26.2.2003 debarring him from filing the written statement, has preferred this application.

(2.) Defendant, on service of summon, appeared in the suit on 30.9.2002. According to him, he appeard in the suit through an advocate who told him to come only after the information is sent to him. When he did not receive any communication through his advocate, he came to meet him on 21.11.2004 but failed. Later, on 14.3.2005 he came to know that hearing of the suit is going on and further that his advocate was murdered on 3.12.2002, so he was not informed by him. He also came to know that in the absence of the advocate, by order dated 26.2.2003, he was debarred from'filing the written statement. Accordingly, he filed application dated 21.3.2005 for recall of the said order and for permitting him to file the written statement. By reason of the impugned order, said prayer has been rejected.

(3.) Mr. Raj Shekhar, learned Counsel appearing on behalf of the petitioner, contends that the petitioner, having shown sufficient cause, the order debarring him from filing the written statement, ought to have been recalled. He further points out that nothing prevents the Court from accepting the written statement beyond the period stipulated under Order 8 Rule 1 of the Code of Civil Procedure. In support of his submission, he has placed reliance on a decision of the Supreme Court in the case of Kailash Vs. Nanhku and ors, 2005 3 PLJR(SC) 241 and my attention has been drawn to sub-paragraph nos.(iv) and (v) of paragraph no. 45 the judgment, which read as follows: