The High Court of Patna allowed the restoration of a civil appeal dismissed for default, observing that the petitioner had brought the delay to the notice of the lower court through an intervening application which remained unadjudicated.
Restoration of LPA No.148 of 2009 and directions to pass orders on the unadjudicated intervening application.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Jurisdiction Case No.1116 of 2015
In
LPA 148 of 2009
====================================================== Bodh Narayan Bhagat .... .... Petitioner Versus The State of Bihar & Ors .... .... Opp. Parties ====================================================== Appearance : For the Petitioner/s : Mr. Uday Chand Prasad, Advocate For the State : Mr. Vikash Kumar, AC to PAAG ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA and HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL ORDER (Per: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA) 3 27-07-2015 The application has been filed for restoration of LPA No.148 of 2009, which stood dismissed for default on 13.1.2012 for non-compliance of the order dated 2.2.2012.
The confusion in this case has arisen on account of the fact that the original peremptory order was passed on 4.1.2012 in which the appellant was directed to comply with the order dated 25.11.2011, i.e., to file a petition for jointness within a week. The appellant filed I.A.No.268 of 2012 on 12.1.2012 stating that he had no specific information about the jointness of Mostt. Premlata Devi who had received the notices on behalf of other substituted heirs, i.e., two grandsons of Late Sumitra Devi and further that the three daughters of Late Sumitra Devi were married and had their family life in different places and accordingly a prayer was made that fresh notices may be directed to be issued upon the grandsons and daughters of Late Sumitra Devi, who had already been
Patna High Court MJC No.1116 of 2015 (3) dt.27-07-2015
2
substituted in the appeal, with a prayer to recall the order dated 25.11.2011. However, on 2.2.2012 without noticing the aforesaid I.A.No. 268 of 2012 it was directed that two weeks time was granted to file petition for jointness and in default the office note dated 13.1.2012 shall become operative. Since the appellant did not take any further step in the matter the appeal for the second time appears to have been dismissed for default.
In our view, learned counsel for the petitioner had bought the fact to the notice of the Court by filing I.A.No. 268 of 2012 but no order was passed on the same.
In the aforesaid facts and circumstances, we are of the view that the appeal ought to be restored and further orders be passed in the I.A.No. 268 of 2012 filed by the petitioner.
L.P.A. No. 148 of 2009 is, therefore, directed to be restored to its original file.
The restoration application is, accordingly, allowed.
(Ramesh Kumar Datta, J)
spal/-
(Amaresh Kumar Lal, J)
U
1 issue framed by the court
Whether an appeal dismissed for default should be restored despite the non-passing of an interim order on a subscription filed within the stipulated time.
Bodh Narayan Bhagat
The State of Bihar
Ramesh Kumar Datta
Amaresh Kumar Lal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
