IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.339 of 2007 SK.RASHID, Son of Sk. Nad Ali, resident of Mohalla-Hariganj, Post office and Police Station Katihar, District-Katihar. ……………… Appellant-Appellant Versus 1. MD.IBRAHIM , son of Late Md. Wahid. 2. Mahfooz son of late Manowar Ali. Both resident of village-Partaili, Police Station-Muffasil, P.O & District- Katihar. 3 Bibi Hussain Arra, wife of Md. Abdul Gafoor resident of Mohalla- Khankan East of D.S. College, post office and Police Station- Katihar, District-Katihar. …………… Opposite Parties- Respondents. ------- 4 11.05.2009 Heard counsel for the petitioner and counsel for the respondents. While much cannot be said about the impugned order dated 27.4.2007 passed by Vth Additional District Judge, F.T.C. Katihar recording exhaustive reasons for refusing to restore an appeal of the year, 1992, (Title Appeal No. 20 of 1992) dismissed for default, this much becomes clear that the appellant petitioner alone was not guilty for such dismissal. It appears lawyer of the petitioner on the fateful day somehow was of the impression that the case would not be taken up 2 and as such had not remained present in the first half and probably did not choose to appear again in second half. The evidence adduced by the petitioner before this Court also goes to show that the case was dismissed in the second half and therefore when the appeal of the year 1992 dismissed in the year 2002 i.e. after waiting for a period of 10 years on the ground of default of the counsel of the petitioner. It has to be noted that the appeal was always ready for final arguments and the petitioner was represented on most of the dates fixed in the appeal. Counsel appearing on behalf of the defendants-respondents would however submit that they have not only harassed for the last 17 years on account of the pendency of the appeal but even otherwise the plaintiff- appellants have no case for restoration of appeal which is writ large on the face of the record. This Court after considering the submissions of both the sides, is of the opinion that it would always be in the interest of justice to get an issue adjudicated on merits instead of on technicalities and that 3 too in a civil litigation wherein the lower appellate Court is the last Court on question of fact. True it is that a party or his counsel has to remain vigilant but then if a case is dismissed for default for the negligence on the part of the counsel, normally the litigant should not be made to suffer. This Court therefore is inclined to direct for hearing of the appeal on merit. Nonetheless, as the defendants- respondents have been dragged up to this Court and the lis still survives on account of which they will have to contest the appeal in the Court below, this Court would award a cost of Rs. 5000/- to be paid by the appellant to the respondents within three months from the date of receipt/production of a copy of this order. It goes without saying that if the amount of Rs. 5000/- is not deposited in the Court below within the aforementioned period, the Court below shall not restore the appeal. On the other hand, if the amount is so deposited and the appeal is ready for argument, which is of the year 1992, the same must be disposed of within a period of not 3 months from the date of deposit of the aforementioned amount by the 4 appellant for its paid to the respondents. With the aforementioned observations and directions this appeal is disposed of. Bibhash (Mihir Kumar Jha, J.)