SHIV KUMAR LATH Vs. PAPPU KUMAR LATH

JUDGEMENT

(1.) This writ petition is under Article 227 of the Constitution of India, whereby and whereunder, the order dtd. 7/1/2013 has been assailed, by which, the written statement has been refused to be accepted.

(2.) The brief facts of the case, as per the pleadings made in the petition are required to be enumerated, which reads as under:- The respondent/plaintiff filed a suit for a preliminary decree of 1/3rd share in the suit house and also for carving out Takhta to the extent of 1/3rd share of the plaintiff by appointing a Pleader Commissioner. The said suit was registered as Partition Suit No.37 of 2010. The trail Court, after having heard the learned counsel for the plaintiff, has issued notice but the defendant has not appeared, therefore, the notice has been published in the daily newspaper on 9/2/2011 and thereafter, the defendant has appeared and prayed for time to file written statement. The trial court has allowed the time and the defendant no.2 has filed written statement contesting the suit. The plaintiff/respondent filed an objection petition on 20/4/2011 with a prayer for debarring the defendant no.2 from filing any written statement and to proceed with the suit ex-parte against the defendant no.2. The said objection was rejected by the trial court and allowed the written statement filed by the defendant, subject to payment of cost of Rs.1000.00 But, even in spite of the aforesaid order, the written statement has not been filed. The defendant no.2, the petitioner herein, has filed an application praying therein to exonerate him from the cost of Rs.1000.00 or to fix installment for payment of the same. But, vide order dtd. 2/1/2012, the said petition dtd. 6/8/2011 was rejected, against which, the present petition has been filed.

(3.) Mr. Anand Kumar Pandey, learned counsel for the petitioner has submitted that since the petitioner was facing the financial difficulty, therefore, he could not be able to deposit the said amount, as such, the application for exonerating him to deposit Rs.1000.00 or allowing the petitioner to deposit the same by way of installment has been filed. But the trial Court has rejected the same and therefore, the instant petition has been filed. He further submits that as on today, he is now ready to deposit the aforesaid cost as has been directed to be deposited as a condition of acceptance of written statement.