CIVIL REVIEW No.173 OF 1998 ------- In the matter of an application under Order 47 Rule 1 of the Code of Civil Procedure. ------- 1.SHIV BAHADUR RAI } SONS OF RUP LAL RAI 2.RAM EKBAL RAI } 3.HARI RAI SON OF SHYAM BAHADUR RAI 4.JAMUNA RAI SON OF YADUNANDAN RAI ALL RESIDENTS OF PEARPURWA KE TOLA, JAGAN CHAPRA, P.S. MARHAURA, P.O. MIRJAPUR, DISTRICT- SARAN -------- Appellant/Petitioners Versus 1.JONHIA DEVI, WIFE OF JAHGARU RAI 2.PHULENA RAI } 3.RAJENDRA RAI } SONS OF JHAGARU RAI 4.JOGENDRA RAI } 5.DAUGHTER DHANJOYTIA WIFE OF CHULHAN RAI, RESIDENT OF VILL. PAIGA, P.S.-AMNAUR, DISTRICT- SARAN 6.PHULWA DEVI } 7.PANA DEVI } DAUGHTERS OF LATE RAM CHANDRA RAI 8.KUSHUM DEVI } 9.DEWANTI DEVI } 10.ARJUN RAI SON OF RAM BALLAV RAI EXCEPT OPP.PARTY NO.5, ALL RESIDENTS OF VILLAGE-PEARPURWA KE TOLA, JAGAN CHAPRA, P.S. MARHAURA, P.O. MIRJAPUR, DISTRICT- SARAN 11.RAM JANAM RAI SON OF MOTI RAI, RESIDENT OF VILLAGE-PEARPURWA KE TOLA, JAGAN CHAPRA, P.S. MARHAURA, P.O. MIRJAPUR, DISTRICT- SARAN 12.SMT.BHAHARAN DEVI WIFE OF SHIVJEE PRASAD RAI, RESIDENT OF VILLAGE- KHAWANI, P.S. BANIAPUR, DISTRICT-SARAN, PRESENTLY RESIDENT OF JAGAN CHAPRA, P.S. MARHAURA, DISTRICT SARAN 13.SUMATIA DEVI, ALLEGED TO BE DAUGHTER OF RUP LAL RAI 14.MAHENDRA RAI SON OF MOTI RAI 15.SURESH PRASAD, SON OF LATE RAM KISHUN RAI 16.USHA MINOR DAUGHTER OF RAM KISHUN PRASAD THROUGH HER MOTHER AND GUARDIAN BALKESHARI DEVI 17.SHIV RATIA DEVI } BOTH DAUGHTERS OF 18.JAMURTI DEVI } YADUNANDAN RAI 19.PARVATI DEVI } DAUGHTERS OF SHUK RAI 20.RADHIKA DEVI } ALL RESIDENTS OF VILLAGE-PEARPURWA KE TOLA, JAGAN CHAPRA, P.S. MARHAURA, P.O. MIRJAPUR, DISTRICT – SARAN. -------Respondents/Opp.Party ------- For The Petitioners :RAVI SHANKER DWIVEDI,Adv. For The Respondents :V.K.RAI,Adv. ------- P R E S E N T THE HON'BLE MR. JUSTICE JAYANANDAN SINGH - 2 - J.N.Singh,J : Heard learned counsel for the petitioners. No body appears for the respondents. 2. This review application has been filed for review and recall of the order dated 7.1.1998 passed in F.A.No.208 of 1990 and for restoration of the said First Appeal to its original file. 3. By order dated 7.1.1998 passed in the said First Appeal, it was held that as the appeal stood dismissed against respondent nos.2 to 5, 7 and 8, who were plaintiffs in the suit, and respondent nos.11 to 22, who were defendants, due to non-compliance of the peremptory order passed in the appeal on 26.9.1997, the whole appeal had become incompetent and therefore, the same was dismissed. 4. By order dated 26.9.1997 passed in the First Appeal, peremptory time was granted for filing requisites for issue of notice to the said respondents within a period of one week. As the said order was not complied with, the appeal stood dismissed against those respondents. The suit being a partition suit, this Court by order dated 7.1.1998 held that the whole appeal has become incompetent and therefore, the same was dismissed. 5. It is stated in the review application that all the appellants were very old, and therefore, they had entrusted the pairvi of the appeal to one Chhabila Rai of their village to whom they used to give information received from their advocate and they also used to give necessary expenses to contact their learned counsel in the case in this Court and take - 3 - suitable steps for prosecuting appeal. It has been stated in the review application that the said Chhabila Rai had gone in collusion with the respondents and therefore, he left pairvi on behalf of the appellants inspite of instructions from the appellants and payment of necessary costs for the same from time to time. In the circumstances, no step could be taken in time for compliance of the peremptory order dated 26.9.1997, on account of which the appeal stood dismissed as against those respondents. Later on, the suit being a suit for partition, the whole appeal was dismissed as incompetent. 6. It is stated in the review application that this fact could be discovered only when the son of appellant no.2, who was an employee of Dr.Ram Manohar Lohia Hospital, New Delhi, came to the village and made personal enquiry from learned counsel for the appellants about the progress in the appeal. Thereafter, urgent steps were taken for restoration of the appeal by filing the present review application. 7. No one appears for the respondents to counter the said assertions made by the petitioners (appellants) in the review application. 8. From perusal of the review application, it appears that no prompt steps were taken in the appeal by the appellants due to bona fide mistake and due to their reliance on the said Chhabila Rai, pairvikar, who was entrusted to get into contact with learned counsel for the appellants in this Court and take steps for its progress from time to time. In the circumstances, in - 4 - absence of any opposition from the respondents, this Court is satisfied that no proper steps could be taken in the appeal in time for no deliberate and willful laches on the part of the appellants. In the circumstances, this review application is allowed, the order dated 7.1.1998 is recalled and the First Appeal is restored to its original file. Learned counsel for the petitioners prays that since the appeal has been restored to its original file, time granted for filing requisites for notice to the concerned respondents by order dated 26.9.1997 be extended for three weeks from today after filing substitution petition for the concerned respondents, who have died in the meanwhile. Let time for the same be treated as extended by three weeks from today. In the result, this application is allowed. Patna High Court 18th November,2008 N.A.F.R./Pradeep/ (Jayanandan Singh, J.)