IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.575 of 2008 MAUJE MAHTO, Son of Late Raudi Mahto, resident of village-Madhopur Rausan @ Visa, P.S.Dumra, District-Sitamarhi. ………….. Plaintiff/Appellant/ Appellant/Appellant. Versus 1. Ram Shewak Mahto 2. Chulhai Mahto 3. Ram Balabh Mahto All sons of late Puran Mahto, resident of village-Madhopur Rausan @ Visa, P.S.Dumra, District- Sitamarhi. …………….. Defendants/ Respondents/ Opposite Parties/ Respondents -------- 3 11.05.2009 Heard Mr. Dronacharya, learned counsel for the appellant. The impugned order has the effect of dismissing the appeal on merits inasmuch as on account of refusal of the Court to restore the Eviction Suit No. 10 of 2003 filed by the appellants against the judgment and decree of the trial Court dismissing the suit for eviction, would virtually seal the fate of the appellant. This Court would find that the grounds which were taken for restoration of the appeal related to illness of family member of the layer of the appellant and it was under a bonafide impression of deposit of the Court fee 2 by the clerk of the lawyer that steps could not be taken for filing of Miscellaneous case for restoration of the appeal. The Court below however, has not taken any note of this aspect into consideration while passing the impugned order and in its one line observation that “lack of knowledge for all these period of 976 days does” not seem to be logical and in the opinion of this Court, would also amount to not consideration of the pleas raised by the appellant. This Court therefore, finding that the order dated 7.7.2008 dismissing the application for restoration is not in accordance with law, would set it aside and to cut short the whole thing would allow the Misc. Case No. 13 of 2008 filed by the appellants. The Eviction Appeal No. 10 of 2003 would now stand restored subject to deposit of cost of Rs. 5000/- by the appellants in the Court below for its being paid to the contesting defendant-respondent Nos. 1, 2 and 3 within a period of one month from the date of receipt/production of a copy of this order. The appeal is of the year, 2003 therefore if otherwise ready for hearing it 3 must be disposed of within a period of six months from the date of deposit of the aforesaid cost by the appellants in the Court below for its payment to contesting respondents. With the aforementioned observation and direction this appeal is allowed. Bibhash (Mihir Kumar Jha, J.)