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George Tagore vs Prakash Kumar Tagore & Ors on 3 September, 2008

Author: Mihir Kumar Jha

Bench: Mihir Kumar Jha

                    IN THE HIGH COURT OF JUDICATURE AT PATNA
                              C.R. No.1441 of 2008
                                 GEORGE TAGORE
                                     Versus
                           PRAKASH KUMAR TAGORE & ORS
                                  -----------
2.   3.9.2008

Heard counsel for the petitioner.

In the opinion of this Court the impugned order refusing to recall the order debarring the petitioner from filing written statement cannot be said to be bad because the court below has taken into account that the petitioner after service of summon on 14.6.2006 had been evading or had not filed the written statement in a period of next 15 months.

That being so, the court below was perfectly justified in rejecting the application for acceptance of the written statement but then a question would arise in a suit like the present one where the partition of the property is being claimed and has to be defended by the petitioner by not only filing the written statement or leading evidence, the right of the petitioner cannot be altogether taken away only because he had made some delay in filing of the written statement.

Realising this position counsel for 2 the petitioner in the light of the observation made in the case of Kailash Vs. Nanhaku, reported in AIR 2005 S.C. 2441, would himself contend that the petitioner is prepared to compensate the loss of the plaintiff in monitory terms and that any reasonable amount may be fixed by this Court would be paid by the petitioner for acceptance of his written statement.

Considering the delay of 15 months as also protracted course of litigation in a suit of 2006, this Court would direct the petitioner to pay a sum of Rs. 5000/- to the plaintiff within a period of one month from the date of receipt/production of a copy of this order and on producing evidence of such payment the court below shall take the written statement of the petitioner on record and would proceed to dispose of the suit in accordance with law.

                        With                the               aforementioned

            observation,         this       application         is     disposed

            of.



                                             ( Mihir Kumar Jha,J.)

Surendra/