SIKANDAR YADAV Vs. OM PRAKASH YADAV

JUDGEMENT

(1.) Heard, Mr. Ganpati Trivedi, learned senior counsel for the petitioners and Mr. Swapnil Kumar Singh, learned counsel for the respondent no. 15.

(2.) By way of the present application preferred under Article 227 of the Constitution of India, the petitioners have challenged the order dtd. 27/4/2018 passed by the learned Sub- Judge-XIII, Bhagalpur in Title Suit No. 455 of 2014 whereby he has dismissed the petition dtd. 23/3/2018 filed by the petitioners to recall the order dtd. 4/5/2016 by which the suit proceeded under Order 8 Rule 10 of the Code of Civil Procedure (for short 'CPC').

(3.) Mr. Ganpati Trivedi, learned senior counsel appearing for the petitioners submitted that the court below erred in dismissing the petition filed by the petitioners, who were defendants in Title Suit No. 455 of 2014. He contended that while refusing to recall the order passed under Order 8 Rule 10 CPC, the court below failed to appreciate that the ex-parte decision would deprive the defendants from putting their defence. It erred in not condoning the delay in filing the written statement and permitting the petitioners to file the same after recalling the previous order. It also failed to exercise its jurisdiction vested in it by law as Order 8 Rule 1 of the CPC and the proviso thereto as amended read with Order 8 Rule 9 of the CPC clothed the court below in permitting the defendants to file written statement.