RAM NANDAN PODDAR Vs. LAXMI PRASAD SAH

JUDGEMENT

(1.) HEARD learned counsel for the petitioners and learned counsel for plaintiff - opposite parties first set. No one appears for other opposite parties although notices have been validly served upon them.

(2.) THIS Civil Revision has been filed on behalf of defendants no. 1 and 2 -peti -tioners against order dated 14.2.2005, by which the learned Subordinate Judge -ll, Rosera, allowed the petition filed by defendants no. 2(a) to 2(d) (opposite parties no. 7 to 10) and allowed them to file their written statement in Title Suit No. 59 of 1996. The aforesaid title suit was filed by the plaintiff -opposite parties first set for declaration of their title as well as for other ancillary reliefs. Defendants No. 1 to 3 appeared in the suit and filed their joint written statement in the year 1999 contesting the suit. During the pendency of the suit, defendant no. 2 Ramchalitar Singh died and his heirs and legal representatives were substituted in his place by the learned below and notices were sent to the said heirs, who are defendants no. 2 (a) to 2(d), who appeared in the said suit on 19.9.2003. After much more than ninety days, they filed a petition on 23.12.2003, which was rejected by he learned court below on the same day i.e. on 23.12.2003 debarring them from filing any fresh written statement.

(3.) HOWEVER , after more than a year a petition was filed by defendants no. 2(a) to 2(d) (opposite parties no. 7 to 10) in the learned court below on 10.1.2005 for recall of the order of the learned court below dated 23.12.2003 and accept the written statement filed by them. A rejoinder to the said petition was filed on behalf of defendants no. 1 and 3. The said matter was decided by the learned court below by impugned order dated 14.2.2005 considering the entire matter and finding that the said substituted defendants were bound by the pleadings of their predeces -sor -in -interest and that even otherwise they did not file any such petition within the time prescribed under Order VIII Rule 1 of the Code of Civil Procedure (hereinafter referred to as 'the Code ' for the sake of brevity), but in spite of the said finding, the learned court below allowed the said defendants to file their written statement as a last chance on payment of cost to the plaintiffs as well as to defendants no. 1 and 3. The cost paid to the plaintiffs was accepted, whereas, defendants no. 1 and 3 did not accept the cost and filed the instant Civil Revision challenging the said order of the learned court below dated 14.2.2005.