-1- C.M.P. No. 1039 of 2024 IN THE HIGH COURT OF JHARKHAND, RANCHI ---- C.M.P. No. 1039 of 2024 ---- 1.Sogara Bibi wife of late Fajil Mian, aged about 64 years 2.Hamid Ansari, aged about 41 years 3.Md. Adam Ansari, aged about 44 years, Sl.Nos.2 and 3 are sons of Late Fajil Mian. All residents of Village Dhonti, PO Kalyanpur, P.S. and District Garhwa … Petitioner(s) -- Versus -- 1.Jaibun Bibi wife of Adam Ansari] 2.Amjhar Ansari 3.Ishan Ansari 4.Tehshan Ansari Sl.No.2 to 4 are sons of Adam Ansari Sl.No.4 represented through his natural guardian and mother namely Jaibun Bibi All are residents of Village Dhonti, PO Kalyanpur, PS and District Garhwa ….. Respondent/Petitioners 5.Saida Bibi wife of Subhan Ansari resident of Village Dhonti, PO Kalyanpur, P.S and District Garhwa 6.Jaida Bibi wife of Manul Ansari, residents of Village Champa, PO and PS Meral District Garhwa ….. Performa resp./Opposite Parties 7.Deputy Commissioner, Garhwa, AT PO, PS and District Garhwa ……. Respondent/ Opposite Party ---- CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI --- For the Petitioner(s) :- Mr. Jitesh Kumar, Advocate For the Opp. Parties 1to4 :- Mr. Niraj Kishore, Advocate Ms. Shobha Rani, Advocate For the O.P./State :- Mr. Rohit, Advocate ---- 3/16.01.2025 Heard the learned counsel appearing on behalf of the petitioners, the learned counsel appearing on behalf of the Opposite party/State and the learned counsel appearing on behalf of the Opposite parties nos.1 to 4. The -2- C.M.P. No. 1039 of 2024 opposite parties nos.5 and 6 are said to be the proforma respondent/O.Ps. 2. This petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 22.11.2022 passed by learned Additional District Judge-I, Garhwa in Original Suit/Probate Case No.1 of 2018 whereby the petition filed for recall of the order dated 22.11.2022 and 20.7.2024 has been rejected. 3. The learned counsel for the petitioners submits that the WILL dated 24.08.2007 executed by the Fajil Miyan was the subject matter in the said Probate case. He submits that notices were issued in the said probate case on 28.3.2019 and the petitioners appeared by way of filing their Vakalatnama and on 19.09.2019 and the rejoinder objection was filed by the petitioners but without the affidavit stating therein that the death of Fajil Miyan has not been mentioned in the plaint. He then submits that in view of that the knowledge of death of Fajil Miyan was not known to the petitioners. He submits that the case was fixed on 22.11.2022 for settlement of issues but defendants were absent and in view of that the learned court has posted the case as ex-parte and proceeded further and on 16.5.2023 the issues framed and the case was fixed for evidence of the plaintiff. He submits that on 27.05.2024 a petition was filed stating that due to typing mistake and oversight the written statement was filed without verification and affidavit and along with the said application, verification and affidavit was filed praying to accept the same. On the same day on 27.05.2024 another petition under Order IX Rule 7 CPC was filed for recalling the ex-parte order dated 22.11.2022 saying that the order was not in the knowledge of the petitioners and on 16.05.2024 the plaintiffs produced the P.W.1 for evidence which was not on affidavit and the learned court has debarred the petitioners for cross-examination of P.W.1. He submits that in this background, the said petition was filed however, the learned court has rejected only on the ground that this is a delay tactic adopted by the petitioners. He -3- C.M.P. No. 1039 of 2024 submits that the petitioners will co-operate in the trial and unnecessary adjournments will not be taken by the petitioners. 4. Learned counsel for the O.P.No.1 to 4 submits that belatedly the said petition was filed and the case was already fixed for ex-parte and in view of that the learned court has rightly passed the said order. 5. It is an admitted position that written statement was filed on behalf of the petitioners and on the date of recalling the affidavit and verification was filed praying therein to recall the ex-parte order dated 22.11.2022. The subject matter of the probate case is Will executed by the husband of the petitioner no.1 and if the Will of the husband of the petitioner no.1 is there, the substantial right of the petitioners are made out to contest the said probate case and sufficient cause is made out to recall the said order. 6. It has been pointed out that the petitioners will not take unnecessary adjournment in the probate case. 7. In view of above facts, the order dated 22.11.2022 and 20.07.2024 passed by learned Additional District Judge-I, Garhwa in Original Suit/Probate Case No.1 of 2018 are set aside subject to payment of cost of Rs.2500/- to the plaintiffs. 8. The learned court will proceed in accordance with law. 9. This petition is disposed of. 10. Pending petition if any also stands disposed of accordingly. ( Sanjay Kumar Dwivedi, J.) SI/