Mohammad Azad Alias MD Azad Khan Vs Mohammad Shamim

Respondent no. 4 to 6 sons of Late Munni, daughter of Late Md. Aziz and the minor respondent no. 6 is represented through his elder brother Mohammad Sanni. All respondents resident of Mohalla Konka, Karbala Tank Road, P.O. G.P.O., P.S-Lower Bazar, District- Ranchi, Jharkhand.

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.…… Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners : Mr. Avilash Kumar, Advocate

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07/Dated: 07/07/2025

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Inspite of service of notice opposite parties have not appeared. On 23.01.2025 the matter was adjourned with a view to provide one more opportunity to the opposite parties. Identical was the situation on 21.04.2025 and on that date further proceeding in Original Suit No. 437 of 2019 was stayed. Further on 05.05.2025 the matter was adjourned with a view to provide further one more opportunity to the opposite parties and the interim order was extended. Inspite of that opposite parties have

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( 2025:JHHC:18030 )

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chosen not to appear as such this matter is being heard in absence of the opposite parties.

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Heard Mr. Avilash Kumar, learned counsel for the petitioners.

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This petition has been filed under Article 227 of the Constitution of India for setting aside order dated 03.02.2023 passed in Original Suit No. 437 of 2019 whereby the petition under order IX Rule 7 filed by the petitioners to recall the order dated 13.11.2019 of ex parte proceeding, has been dismissed.

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Mr. Avilash Kumar, learned counsel for the petitioners submits that the plaintiffs/opposite parties instituted Original (Partition) Suit No. 280 of 2018 in the court of learned Civil Judge (Senior Division)-I, Ranchi praying therein a decree claiming partition of the plaintiffs 1/4^th share in the suit property. He submits that the said suit was admitted and notice has been issued by order dated 09.07.2018. He submits that the petitioners fell ill and they were not able to appear before the learned court and in the meantime the case has been transferred to another court. He submits that some of the petitioners were able to find out the location of pendency of suit before the learned court and by order dated 13.11.2019 an ex parte proceeding was made in the suit by the learned court. He submits that in the meantime Covid19 effected and the lockdown was also imposed. In this background he submits that a petition dated 02.09.2022 was filed before the learned court which was rejected by the impugned order dated 03.02.2023. On these grounds he submits that one opportunity may kindly be allowed to the petitioners to file the written statement.

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From the pleadings it transpires that the said suit was instituted for partition. The notice has been received by the petitioners however it has been pointed out that due to illness the petitioners have not appeared before the learned court and the learned court has posted the matter for ex parte hearing by order dated 13.11.2019. In the light of Covid-19 and further

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( 2025:JHHC:18030 )

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appearance a petition was filed before the learned court however the said petition was rejected by the learned court. It appears that bonafidely the petitioners have not appeared before the learned court due to illness. It is well known fact that Covid-19 has effected and lock down was also imposed and the order has been passed during the existence of Covid-19. In a suo motu case the Hon’ble Supreme Court has allowed the period of limitation in statutory provision also.

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In a partition suit it is desirable that the suit be decided on

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contest.

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In view of above, the impugned order dated 03.02.2023 passed in Original Suit No. 437 of 2019 is set aside and consequently, the order 13.11.2019 by which the matter was posted for ex parte hearing is set aside at the cost of Rs. 5,000/- to be paid before the learned court to the plaintiffs. The learned trial court will proceed in accordance with law. Unnecessary adjournment will not be taken by the petitioners. The petitioners will cooperate in the trial.

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This petition is disposed of. Pending I.A, if any, stands disposed

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of.

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( Sanjay Kumar Dwivedi, J.)

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Satyarthi/-

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Mohammad Azad Alias MD Azad Khan v. Mohammad Shamim

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Mohammad Azad Alias MD Azad Khan v. Mohammad Shamim

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