IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.1004 of 2009 SITA DEVI & ORS Versus INDRADEO LAL & ORS ----------- 5 05.08.2009 This petition has been filed under Order XLI and Rule 19 of the Code of Civil Procedure for restoration of M.A. No. 574 of 2000 which was dismissed by another Bench of this Court vide order dated 17.04.2007. It transpires that the said Miscellaneous Appeal filed by the petitioner was admitted whereafter it was placed for final hearing on 17.4.2007. It further transpires that on 17.4.2007 the petitioner who was appellant of the Miscellaneous Appeal did not appear in the court nor made any argument, but inspite of that the said Miscellaneous Appeal was dismissed on merit after considering the material on record as well as the facts and circumstances of the case. 2. .In the said order dated 17.4.2007 the appellant filed Civil Review No. 98 of 2007 which was finally heard on 09.02.2009 by this Court and after considering the facts and circumstances of the case as well as the pleadings and materials of the parties this court found that the Court while passing its order dated 17.4.2007 digressed the limit prescribed under the law as it had no jurisdiction to dismiss the appeal on merit when the appellant’s counsel did not make any argument and was absent at the time of final hearing of the appeal. In such circumstances the only remedy available to the court was to dismiss the appeal in default under the Provision of Order XLI Rule 17 of the Code of Civil Procedure. 3. Accordingly the Civil Review petition was allowed and the impugned order dated 17.04.2007 was reviewed with the effect that it was - 2 - dismissed only for default under Order XLI Rule 17 of the Code and not on merit under Order XLI Rule 30 and the appellants petitioners would have remedy under Order XLI Rule 19 of the Code against the said order by way of filing an M.J.C. Case. 4. It transpires that in view of the aforesaid order and the observation made by this Court in its order dated 9.2.2009 that the instant M.J.C. No. 1004 of 2009 has been filed by the appellants Under Order XLI Rule 19 of the Code of Civil Procedure. 5. Considering the facts and circumstances of the case as well as the argument of the parties, M.J.C. No. 1004 of 2009 is allowed and M.A. No. 574 of 2000 is restored to its original file and number along with interlocutory orders passed therein. 6. Since the matter is quite old the parties would be at liberty to move before the appropriate court for fixing an early date of final hearing of the miscellaneous appeal. (S.N. Hussain, J) M.Rahman