Patna High Court
Guddu Pandey @ Binod Pandey vs Ramashray Choubey on 17 April, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1180 of 2023
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Guddu Pandey @ Binod Pandey Son of Late Bal Bachan Pandey @ Bal
Chand Pandey, Resident of Village-Asharam Bhaluhi, P.s. Rudrapur, P.S.
Kateyan, District-Gopalganj.
... ... Petitioner/s
Versus
1. Ramashray Choubey son of Late Laxuman Choubey, Resident of Village-
Khutwaniya, P.O. and P.S. Kuchaikot, District-Gopalganj.
2. Bipin Bihari Choubey, son of Late Laxuman Choubey, Resident of Village-
Khutwaniya, P.O. and P.S. Kuchaikot, District-Gopalganj.
3. Ram Ekbal Choubey, son of Late Laxuman Choubey, Resident of Village-
Khutwaniya, P.O. and P.S. Kuchaikot, District-Gopalganj.
4. Keshav Kumar Choubey, son of Late Laxuman Choubey, Resident of
Village-Khutwaniya, P.O. and P.S. Kuchaikot, District-Gopalganj.
5. Kamal Kanti Devi, Wife of Anil Kumar Pandey and daughter of Late
Laxuman Choubey, resident of Village Ratanpur, P.O. Kuchaikote, P.S.
Gopalpur, District-Gopalganj.
6. Paras Pandey, son of Late Birjhan Pandey, Resident of Village-Asharam
Bhaluhi, P.O. Rudrapur, P.S. Kateya, District-Gopalganj.
7. Birendra Pandey, Son of Late Bal Bachan Pandey @ Bal Chand Pandey,
Resident of Village-Asharam Bhaluhi, P.O. Rudrapur, P.S. Kateya, District-
Gopalganj.
8. Shuddu Pandey, Son of Late Bal Bachan Pandey @ Bal Chand Pandey,
Resident of Village-Asharam Bhaluhi, P.O. Rudrapur, P.S. Kateya, District-
Gopalganj.
9. Haresh Pandey, Son of Late Sheo Bachan Pandey, Resident of Village-
Asharam Bhaluhi, P.O. Rudrapur, P.S. Kateya, District-Gopalganj.
10. Ishwar Pandey @ Ishwar Chand Pandey, son of Late Lal Bachan Pandey,
Resident of Village-Asharam Bhaluhi, P.O. Rudrapur, P.S. Kateya, District-
Gopalganj.
11. Gudia Daughter of Late Umesh Pandey, Resident of Village-Asharam
Bhaluhi, P.O. Rudrapur, P.S. Kateya, District-Gopalganj.
12. Umrawati Kunwar, Wife of Late Umesh Pandey, Resident of Village-
Asharam Bhaluhi, P.O. Rudrapur, P.S. Kateya, District-Gopalganj.
13. Munna Pandey, son of Late Umesh Pandey, Resident of Village-Asharam
Bhaluhi, P.O. Rudrapur, P.S. Kateya, District-Gopalganj.
14. Dina Nath Pandey, son of Late Lal Bachan Pandey, Resident of Village-
Asharam Bhaluhi, P.O. Rudrapur, P.S. Kateya, District-Gopalganj.
15. Yadu Nandan Pandey son of Late Ram Sundar Pandey, Resident of Village-
Asharam Bhaluhi, P.O. Rudrapur, P.S. Kateya, District-Gopalganj.
16. Mahima Pandey, son of Late Khenhar Pandey, Resident of Village-Asharam
Patna High Court C.Misc. No.1180 of 2023 dt.17-04-2025
2/8
Bhaluhi, P.O. Rudrapur, P.S. Kateya, District-Gopalganj.
17. Parashuram Pandey, son of Late Khenhar Pandey, Resident of Village-
Asharam Bhaluhi, P.O. Rudrapur, P.S. Kateya, District-Gopalganj.
18. Smt. Nawal Kishore Devi, Daughter of Khenhar Pandey, Resident of
Village-Asharam Bhaluhi, P.O. Rudrapur, P.S. Kateya, District-Gopalganj.
19. Sabhapati Devi, Wife of Gyan Prakash Pathak and daughter of Jhotil
Pandey, Resident of Village, P.O. and P.S.-Pataherwan, District Kushi Nagar
(U.P.).
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Nagendra Rai, Advocate
Mr. Navin Nikunj, Advocate
Mr. Koshalendra Rai, Advocate
For the Respondent/s : Mr. Najeeb Ahmad, Advocate
Mr.Lokesh Kumar Singh, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 17-04-2025
Heard learned counsel for the parties and I intend to
dispose of the petition at the stage of admission itself.
2. The petitioner is aggrieved by the order dated
01.05.2023
passed by learned Munsif, Gopalganj in Final
Decree Case No. 14 of 2016, whereby and whereunder the
learned trial court rejected the prayer for recall of ex-parte order
dated 12.09.2017 against the defendant/petitioner.
3. Learned counsel for the petitioner submits that
the plaintiffs/respondents 1st set filed an application on
31.03.2016 before the learned trial court for preparation of final
decree (numbered as F.D. Case No. 14 of 2016) in Partition Suit
No. 478 of 1995. Earlier the suit was partially decreed by the
Patna High Court C.Misc. No.1180 of 2023 dt.17-04-2025
learned trial court in 2012, however, in Title Appeal No. 53 of
2012, vide the judgment and decree dated 27.01.2016, the suit
was decreed in full by the court of learned Additional District
Judge-8, Gopalganj granting preliminary decree in favour of the
plaintiffs/respondents 1st set by giving them 1/6th share in the
entire suit properties. Application was filed for preparation of
final decree. Notice was issued to defendant but, learned
counsel submits that, no notice was served upon the petitioner
and substituted service through paper publication was resorted
to, the defendant/petitioner did not get any knowledge and the
matter was fixed for ex-parte proceeding vide order dated
12.09.2017. Learned counsel further submits that the
defendant/petitioner filed an application on 23.02.2018 for
recall of the order dated 12.09.2017 fixing the matter for ex-
parte hearing. The said petition of the defendant/petitioner was
dismissed as not maintainable vide order dated 15.05.2019.
Learned counsel further submits that it could be seen from the
order sheet dated 26.11.2019 that the final decree application
was permitted to be amended and the said amendment was
incorporated in the application for final decree on 05.12.2019.
In this background, the petitioner filed an application on
27.01.2021 to recall the order dated 12.09.2017 fixing the
Patna High Court C.Misc. No.1180 of 2023 dt.17-04-2025
matter for ex-parte hearing of the final decree proceeding.
Learned counsel further submits that the learned trial court did
not take into consideration the legal provision that one an
amendment has been incorporated by the plaintiff, fresh notice
was required to be issued to the defendant. In this regard,
learned counsel relied on a decision of this Court in the case of
Bhageshwari Choudharain and another Vs. Pratap Narayan
Choudhary and others, reported in 1994(1) PLJR 640, wherein
the learned Single Judge of this Court relying on a decision in
the case of M/s. Jharkhand Mines & Industries Limited Vs.
Nand Kishore Prasad, reported in AIR 1969 Pat. 228 held that
it was incumbent upon the court to see that the notices of the
amended plaint be served on the defendants of the suit. The
Code of Civil Procedure casts a duty on the court to see that the
defendants are made aware of any amendment in the plaint,
whether the amendment be in regard to the addition of parties or
in regard the contents thereof. Unfortunately, the learned trial
court which passed the ex-parte order, did not direct any notices
to be issued to the defendants with a view to make them aware
about the amendment of the plaint and finding of the impugned
order stands vitiated on account of aforesaid fact. Learned
counsel further submits that on 15.03.2020 direction for
Patna High Court C.Misc. No.1180 of 2023 dt.17-04-2025
measurement of plot was issued to the learned Survey Knowing
Pleader Commission by the learned trial court and on
21.03.2020, learned Survey Knowing Pleader Commission
prayed for issuance of notice to the defendants. Learned counsel
further submits that the case remained pending due to Covid-19
pandemic started from 27.03.2020 and thereafter, the application
dated 27.01.2021 was filed. However, the learned trial court
after hearing the parties dismissed the said application vide
impugned order dated 01.05.2023, filed for recalling the order
dated 12.09.2017. Learned counsel further submits that the
learned trial court failed to consider that a hyper technical
approach should not be adopted in the given facts and
circumstances. It has also failed to consider that only two days
prior to the petition of the petitioners for recall, the learned
Advocate Commissioner had prayed to issue fresh notice to the
defendants as regards left out/fresh plots. Learned counsel
further submits that the petitioner being a co-sharer and having
high stakes in the suit property, should not be denied the
opportunity to participate in the final decree proceeding as the
same would permanently jeopardize his property rights. Thus,
learned counsel submits that the impugned order is not
sustainable and the same may be set aside.
Patna High Court C.Misc. No.1180 of 2023 dt.17-04-2025
4. Learned counsel appearing on behalf of respondents
1st set submits that there is no infirmity in the impugned order
and the same does not require any interference. Learned counsel
further submits that the learned trial court has taken into
consideration the conduct of the petitioner and mentioned the
fact that the matter was proceeded ex-parte on 12.09.2017 and
after passing of the ex-parte order defendant appeared on
11.10.2017 and submitted a petition supported with affidavit to
stay the proceedings of the final decree case till the orders of the
High Court, Patna. Again on 28.11.2017 and 07.12.2017, the
defendant/judgment debtor submitted a petition stating therein
that they have preferred Second Appeal Nos. 103 of 2016 and
234 of 2016 in the High Court and prayed to stay the
proceedings of the final decree till the disposal of the second
appeal. Learned counsel further submits that these facts go on to
show that the petitioner was having knowledge of the final
decree proceeding. So far as the amendment in the final decree
proceeding application is concerned, the same is only formal in
nature as bringing the relevant Mauza of the suit property on
record. Moreover, the said amendment was sought in 2019 and
the petitioner has been preferred Second Appeal No. 103 of
2016 which go on to show that the defendant/petitioner was
Patna High Court C.Misc. No.1180 of 2023 dt.17-04-2025
having knowledge way back in the year 2016. But the same has
not been explained and these circumstances go on to show
latches on part of the defendant/petitioner. Learned counsel
further submits that there is no infirmity in the impugned order
and the same may be affirmed.
5. I have given my thoughtful consideration to the
rival submission of the parties and perused the record. It is very
much evident from the impugned order that the
defendant/petitioner was having knowledge of final decree
proceeding in 2016 itself when he filed second appeal.
Thereafter, two applications were filed and were dismissed on
account of the fact that they were not pressed for quite long
time. Similarly, the submission made on behalf of the petitioner
that on 26.11.2019, the final decree application was permitted to
be amended and notice was required to be issued to the
defendant/petitioner, this defect on part of the court or the
plaintiff should not have come in the way of the petitioner for
not moving the application for recall of the ex-parte order
earlier. Therefore, to that extent I find no infirmity in the
impugned order.
6. However, considering the fact that it is a partition
suit and the defendant/petitioner being a co-sharer wants to
Patna High Court C.Misc. No.1180 of 2023 dt.17-04-2025
participate in the proceeding, I find for the ends of justice, the
court should allow the participation of the defendant/petitioner
in the final decree proceeding, of course, subject to imposition
of heavy cost. Therefore, on this limited point, this Court would
like to interfere with the order of the learned trial court and the
order dated 01.05.2023 is set aside and application dated
27.01.2021 is allowed subject to payment of cost of Rs.25,000/-
to be paid to the plaintiffs on the first day of hearing before the
learned trial court and the learned trial court is directed to take
the proceeding in all earnest without granting any unnecessary
adjournment to the parties since the partition suit is of the year
1995.
7. Accordingly, the present petition stands disposed
of.
(Arun Kumar Jha, J)
DKS/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 22.04.2025
Transmission Date NA
