IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.135 of 2007 SATYA BHAMA DEVI & ORS Versus DEVATA SINGH & ORS ----------- 10. 18.12.2008 With the consent of both sides, this appeal was heard under Order 41 Rule 11 and 12. This appeal is against the order dated 20.11.2006 on which date the appellants who were the heirs of sole appellant in Title Appeal No. 16 of 1991 as well as the respondents were present before the court below and a substitution petition dated 7.3.2005 was called on for hearing but no body had appeared on behalf of the appellant, hence, the substitution petition was dismissed and thereafter that being the case, the heirs of the sole appellant having not been substituted, the whole appeal was ordered to be dismissed as abated. The learned counsel for the appellant submits that the substitution petition was pending since long and the appellant was vigilant in attendance on previous dates also. As regards his absence at the time of hearing on the substitution petition, the learned counsel for the appellant submitted that the appellant had filed his attendance and he was ready to press the substitution petition but suddenly he fell ill due to vomiting, hence, he could not appear at the time when the appeal was called for hearing on the substitution petition. In support of his ailment medical certificate at Annexure-4 has been filed which mentions about pain in abdomen and vomiting and the prescription of medicines by the doctor for the ailment. The learned counsel for the respondent submitted that there were other heirs also. But the counsel for the respondent replied that - 2 - Ashok Kumar Jha, one of the heirs was in charge of the case and he was doing pairvi in that appeal. Thus hearing both sides and considering the facts and circumstances of the case, I feel that absence of the appellant at the time of hearing of the substitution petition has been reasonably explained. In such view of the matters, the impugned order dated 20.11.2006 is set aside. The trial court will afford an opportunity to the parties for hearing on the substitution petition dated 7.3.2005 and will pass order thereon according to the law. Accordingly, the appeal is allowed. Ravi/- (C.M. Prasad, J.)