IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.323 of 2007 1. MUSHAI YADAV, Son of late Paltu Yadav 2. Ruplal Yadav, Son of Paltu Yadav 3. Chano Yadav, Son of Mushai Yadav 4. Santosh Yadav, Son of Mushai Yadav 5. Sobhi Yadav, Son of Mushai Yadav 6. Nago Yadav, Son of Mushai Yadav All are the resident of village Saroni, P.S. Mahishi, District Saharsa, and petitioner no. 3 to 6 are the minor son of Mushai yadava and represented through their father legal guardian Mushai yadav. ….. Appellants Versus BALBHADRA YADAV & ORS ……………………… Respondents ----------- For the appellants : M/s Bhola Prasad and Shapnil Kumar Singh For the Respondents : None ------- 8 24.03.2009 Heard learned counsels for the appellants under Order 41 Rule 11 CPC. Through the instant appeal preferred under Order 43 Rule 1(f) C.P.C. the appellants have sought for the setting aside of the order dated 29.5.2007 passed by the Presiding Judge, Fast Track Court No. III, Saharsa, in Misc. Case No. 1 of 2006, arising out of Title Appeal No. 36 of 1997, whereby the petition under Order 41 Rule 19 CPC for setting aside the order dated 21.9.2006 dismissing the appeal for default and for restoration thereof to its original file has been rejected . It has been submitted on behalf of the appellants that appellant no. 1 used to look after the case on behalf of all the appellants from the very initial stage as a representative of all the appellants and by virtue thereof he used to take all required steps in connection with the litigation. It is further submitted that on 5.7.2006 he could not come to the court by reason of falling - 2 - ill and even the junior counsel who was authorized to do pairvi on behalf of the appellants was out of station and under these circumstances the appeal on the relevant day went unattended resulting in the dismissal of the appeal. The Misc . Case being 1 of 2006 was filed for restoration of the same but as would appear from the impugned order no paper in support of the alleged illness of appellant no. 1 being produced in court in evidence thereof nor any of the witnesses examined on behalf of the appellants seeking to support his propounded story of having fallen ill on the relevant date, no “sufficient cause” was shown and accordingly the Misc. case was dismissed. Rule 19 of Order 41 CPC provides for re-admission of appeal dismissed for default where it is proved that he was prevented by any sufficient cause from appearing when appeal was called out for hearing……………… ” Unfortunately no “sufficient cause” or document appears to have been laid in evidence to make out “sufficient cause” for restoration of the appeal dismissed for non prosecution. In the aforesaid situation I am unable to allow the appeal and dismiss the same under Order 41 Rule 11 CPC. Spd/- (Abhijit Sinha, J.)