IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Jurisdiction Case No.231 of 2011 THE STATE OF BIHAR THROUGH EXECUTIVE ENGINEER WESTERN KOSHI CANAL DIVISION KUNAULI DISTRICT- SUPAUL Versus M/S HARDEO SINGH SON OF RESIDENT OF VILLAGE + P.O.- BATHNAH DISTRICT- PURNEA ---------------------------------- 4 05.09.2011 Heard learned counsels for the petitioner and the State. Interlocutory application vide I.A. No. 4096 of 2011 is filed for condoning the delay in filing the present MJC application for restoration of the Miscellaneous Appeal No. 346 of 2006, which stood dismissed for default on 30th September, 2008. The present MJC application has been filed on 14th January, 2011. Learned counsel for the petitioner, in support of the aforesaid interlocutory application, submits that on perusal of paragraph 6 of the application it would appear that the present restoration application was filed as soon as the dismissal of the aforesaid appeal could be learnt under letter no. 10 dated 24th December, 2001 issued under the signature of the Chief Engineer, Water Resources Department, Government of Bihar, Patna. Learned counsel further submits that the appeal itself was dismissed for non-prosecution for the reason that the concerned Advocate Clerk of the petitioner due to inadvertence and in bonafide mistake could not mark the list with respect to the aforesaid miscellaneous appeal. It is further submitted that the petitioner did not deliberately allowed the said miscellaneous appeal to be dismissed and in case the appeal remains dismissed it will cause serious loss to the State. Mr. Vivek Prasad, learned counsel for the opposite party submits that a counter affidavit has been filed detailing the relevant dates in order to show that the dispute between the parties started long ago and even after subjecting to arbitration proceeding the matter could not be finally settled as yet. This apart, it is submitted that this restoration application has been filed after inordinate delay since the appeal was dismissed on 30th September, 2008 and the present restoration application was filed on 11th January, 2011. It is further submitted that the cause shown by the State in support of the application for condoning the delay is not sufficient, and as such, the limitation application as also the main restoration application both deserves to be dismissed. Learned counsel in support of the above submission has relied on a decision of the Apex Court in the case of Oriental Harona Chemical Industries Ltd. Vs. Gujrat Industrial Development Corporation, reported in (2010) 5 SCC 459. Considering the rival submissions of the parties, it appears that the case of the petitioner-State is that it had no information/knowledge with respect to the dismissal of the aforesaid miscellaneous appeal and as soon as they could learn about the dismissal, the present MJC application for restoration of the connected miscellaneous appeal was filed, and as such, there is no willful latches on its part and in case the appeal is not restored, it will cause serious loss to the State. A counter affidavit has been filed on behalf of the opposite party. Although there is no specific denial of the assertion of the petitioner in paragraph 6 of the interlocutory application for condoning the delay, however, it has been stated that the whole dispute is pending since long for about 25-27 years and the opposite party is not getting the due payments on account of this inordinate delay. The decision of the Apex Court relied upon by the opposite party is on the question as to whether any sufficient cause has been made out and in case there is no cause, the delay is not to be condoned. In the instant case, the State has made out a cause that it had no information with regard to the dismissal of the aforesaid miscellaneous appeal when it was dismissed on 30th September, 2008, however, the moment they could learn about the dismissal, as stated in paragraph 6 of the interlocutory application, the restoration application has been filed and there is no delay on its part. Considering the submissions of the parties and the grounds stated in this application for condoning the delay as also in the counter affidavit, I find that there is sufficient cause for condoning the delay. Accordingly, the delay in filing the aforesaid MJC No. 231 of 2011 is condoned. The I.A. No. 4096 of 2011 stands disposed of. As regards the restoration application vide MJC No. 231 of 2011, it is submitted on behalf of the petitioner, as stated in paragraph 4 of the application for restoration that due to inadvertence and bonafide mistake the concerned Advocate Clerk of the petitioner could not mark the daily cause list, with the result the appeal was dismissed for non-prosecution. The above averments are not denied in the counter affidavit. Accordingly, upon consideration of the submissions of the learned counsel for the petitioner and the grounds stated in this application, the prayer for restoration is allowed and the connected Miscellaneous Appeal No. 346 of 2006 is restored to its original file on condition of payment of cost of Rs. 1500/- to the other side within a period of four weeks and receipt showing such payment be filed accordingly within the aforesaid time. The MJC No. 231 of 2010 accordingly stands disposed of. Manish/- ( Shailesh Kumar Sinha, J.)