- (1.) The present writ petition has been preferred under Article 227 of the Constitution of India, against the order passed by the learned Sub Judge-VII, Deoghar, dated 30th July, 2009, passed in Title Suit No. 10 of 2004. It appears that earlier, the trial court has passed order on 27th February, 2009 to proceed an ex-parte in the trial and original defendant no. 1 through his Power of Attorney holder given application on 22nd June, 2009 for recalling of order dated 27,th February, 2009, which was dismissed vide aforesaid order dated 30th July, 2009, by the trial court (order at Annexure-5) and therefore, the present writ petition has been preferred by original defendant no. 1.
(2.) Having heard learned Counsel for both the sides and looking to the facts and circumstances of the case, I hereby, quash and set aside the order passed by the learned Sub Judge-VII, Deoghar in Title Suit No. 10 of 2004, mainly on the following facts and reasons: (i) It appears that respondent no. 1, who is original plaintiff, has instituted Title Suit No. 10 of 2004 and is claiming and has prayed for declaration that the suit property may be declared as joint Hindu Family as well as he has prayed that the sale deed may be ordered to be executed in favour of the plaintiff by defendant no. 1. (ii) It appears that defendant no. 1, who is present petitioner had appeared before the trial court on 25th January, 2007 through Power of Attorney holder, namely Nand Gopal Das. Written statement was also tendered on the same day, which was never accepted by the trial court on the ground that in the deed of Power of Attorney, there was no reference of the written statement and therefore, through Nand Gopal Das, the written statement was not. accepted on behalf of original defendant no. 1 (iii) It further appears that thereafter, order dated 29th September, 2007 was passed by the trial court to the effect that written statement filed by the defendant was rejected. (iv) It also appears from the facts of the case that the first Power of Attorney, appointed by original defendant no. 1, namely Nand Gopal Das expired on 2nd December, 2008 and therefore, fresh Power of Attorney was given to one Sri Shiv Shankar Sah on 28th May, 2009. (v) Meanwhile, it appears that on 27th February, 2009, the trial court ordered to proceed ex-parte in the aforesaid title suit. Newly appointed Power of Attorney holder Sri Shiv Shankar Sah representing the petitioner-original defendant no. 1, preferred application on 22nd June, 2009, for recalling of order dated 27th February, 2009, passed by the trial court. This application was dismissed vide order dated 30th July, 2009, by the trial court vide order at Annexure-5 to the memo of the petition. (vi) It appears from the aforesaid facts and circumstances of the case that no fault lies on the part of original defendant no. 1 to approach the trial court, but, the only defect on the part of original defendant no. 1 was that earlier Power of Attorney was given to one Nand Gopal Das and in that Power, there was no reference of the written statement. Nonetheless, the fact remains that on 25th January, 2007, the written statement was already tendered. Meanwhile, the said Power of Attorney holder expired and fresh Power of Attorney was given to Sri Shiv Shankar Sah on 28th May, 2009 and without any loss of time, he has preferred an application on 22nd June, 2009 for recalling of the order, passed by the trial court dated 27th February, 2009. It appears that there is no deliberate action on the part of original defendant no. 1 for causing any unreasonable delay, in disposal of the Title Suit No. 10 of 2004. The petitioner, who is original defendant, is also not staying where the property is situated and where the trial is instituted, but, he is residing altogether in another State. This aspect of the matter has not been properly appreciated by the trial court while dismissing the application, preferred on behalf of original defendant no. 1 dated 22nd June, 2009. This is an error apparent on the face of record. (vii) Filing of the written statement by original defendant no. 1 will not cause prejudice to the plaintiff of Title Suit No. 10 of 2004. He has examined three witnesses and therefore now, the defendant no. 1 has to cross examine these three witnesses and it is assured by the learned Counsel for the petitioner-original defendant no. 1 that the examination of the witnesses and their cross examination will be over, within stipulated time, after getting order of cross examination and will present his evidence before the trial court.
(3.) As a cumulative effect of the aforesaid facts and reasons and in view of the aforesaid assurance, I hereby, allow the application, preferred by the petitioner-original defendant no. 1 dated 22nd June, 2009, and the order passed, by the trial court dated 27th February, 2009 as well as the order, passed by the trial court dated 30th July, 2009 are hereby, quashed and set aside, with cost of Rs. 1,000/- (Rs. One thousand only) to be paid by the petitioner to the original plaintiff, in the trial court, within a period of one week, from the date of receipt of a copy of an order of this Court. The petitioner-original defendant no. 1 will file his written statement and will present his evidence before the trial court and if he wants cross examination of the witnesses, already examined by the parties to the suit, necessary application will be given promptly, so that this process can be over, as expeditiously as possible and practicable. I hereby also, direct the trial court to dispose of Title Suit No. 10 of 2004 on or before 30th August, 2010. Looking to the aforesaid final limit, the trial court will not give unnecessary adjournment to the parties to the suit.;