2025:JHHC:12265 --1-- C.M.P. No. 935 of 2022 IN THE HIGH COURT OF JHARKHAND, RANCHI C.M.P. No. 935 of 2022 ---- 1. Qayum Mian, aged about 74 years, son of Late Kheruddin Mian 2. Aslam Mian, aged about 57 years, son of Late Hussain Mian 3. Zohra Biwi, aged about 65 years, widow of Late Nizam Mian 4. Tamanna Parween, aged about 19 years, daughter of Late Nizam Mian 5. Azam, aged about 17 years, minor son of Late Nizam Mian, represented by his natural guardian/mother Zohra Biwi (petitioner No.3) All are residents of village – Mahuadawar, PO and PS – Madhupur, District – Deoghar, Jharkhand .... Petitioners -- Versus -- 1. Jamal Mian, son of Late Israil Mian, resident of village Mahuadawar, PO and PS – Madhupur, District – Deoghar, Jharkhand 2. Sultan Mian, son of Late Shakina Biwi and Late Aashique Mian 3. Multan Mian son of Late Shakina Biwi and Late Aashique Mian Sl. Nos.2 and 3, both are residents of village Mahuadawar, PO and PS – Madhupur, District – Deoghar, Jharkhand 4. Kuresha Biwi, wife of Md. Shafiq, resident of village Patwabad, PO and PS – Madhupur, District – Deoghar, Jharkhand 5. Hamida Biwi, daughter of Late Hussain Mian, wife of Md. Abbas, resident of Madina Mohalla, PO and PS – Madhupur, District – Deoghar, Jharkhand 6. Samida Biwi, daughter of Late Hussain Mian wife of Md. Sohrab Ansari, resident of Village – Panahkola, PO and PS – Madhupur, District – Deoghar, Jharkhand .... Opposite Parties 2025:JHHC:12265 --2-- C.M.P. No. 935 of 2022 ---- CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI --- For the Petitioners :- Mr. Shambhu Nath Tiwary, Advocate For O.P. No.1 :- Mr. Rohit Kr. Gupta, Advocate :- Mr. Rahul Ranjan, Advocate ---- 22/22.04.2025 Heard learned counsel appearing for the petitioners and learned counsel appearing for the opposite parties. 2. This petition has been filed under Article 227 of the Constitution of India for setting aside of the order dated 25.08.2022 passed by learned Civil Judge (Senior Division) – I, Madhupur in Original Suit No.130 of 2014. 3. Learned counsel appearing for the petitioners submits that Original Partition Suit No.66 of 2013 – 130 of 2014 was instituted before the Court of Settlement Officer, Dumka and the same after admission was transferred to the Court of learned Civil Judge (Senior Division)-I, Deoghar for adjudication and in view of that the said case is pending before the learned Civil Judge (Senior Division)- I, Madhupur. He submits that the defendants Nos.1, 2, 5 and 8 had filed their written statement on 08.07.2015 jointly and defendant Nos.9 and 10 were minor at that time and they accepted the written statement filed on behalf of their mother i.e. defendant No.8 (who petitioner No.3 herein). He submits that the petitioners herein are defendant Nos.2, 5, 8, 9 and 10 in the said suit and defendant No.1 had died on 16.04.2020 due to corona disease and information to that effect has been given to the learned Court. He submits that the petition was filed for recalling the PW-1, 2, 3 and 4 to cross 2025:JHHC:12265 --3-- C.M.P. No. 935 of 2022 examine which has been rejected by the learned Court. By way of referring to paragraph No.5 of the said petition, he submits that even the copy of the evidence of the PWs has not been served upon defendant Nos.1, 2, 5, 8, 9 and 10 and defendant Nos.3 and 4 are supporting the plaintiff and only they have cross-examined the PWs 11 and 12. He submits that in the interest of justice the said prayer may kindly be allowed and no adjournment will be taken and within a fixed time period they will be cross-examined. 4. On the other hand, learned counsel appearing for the opposite parties opposes the prayer and submits that they were not present before the Court and in view of that the learned Court has rightly discharge the PWs and defendant Nos.11 and 12 have cross- examined the PWs. 5. In view of the above and particularly considering the averments made in paragraph No.5 of the petition meant for recalling the PWs, it transpires that even evidence on affidavit of the PWs has not been served upon the defendant Nos.1, 2, 5, 8, 9 and 10, who are the petitioners herein in this petition. 6. CPC is meant for doing the justice and the rules are made of hand made and in particular cases that can be relaxed and further considering that during Covid-19 the defendant No.1 has left for his heavenly abode and it was pointed out that he was looking into the said suit, as such impugned order dated 25.08.2022 is hereby set aside. 7. The petition filed by the petition dated 18.04.2022 is hereby 2025:JHHC:12265 --4-- C.M.P. No. 935 of 2022 allowed subject to the payment of cost of Rs.5,000/- to be paid before the learned trial court. 8. The learned trial court will recall the PWs 1 to 4 for cross examination on behalf of the defendant Nos.1, 2, 5, 8, 9 and 10 and this exercise shall be completed within four weeks from the next date of the case fixed before the learned Court. 9. The petitioner herein will not pray for any adjournment on any ground whatsoever and if within four weeks this exercise will not be completed the right of the petitioner will be closed to cross- examine the PWs. 10. This petition is allowed in above terms and disposed of. (Sanjay Kumar Dwivedi, J.) Sangam/