IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.624 of 2001 RAJENDRA PRASAD,SON OF SARJU PRASAD, RESIDENT OF VILLAGE PIRO, P.S. PIRO, DISTRICT BHOJPUR--PETITIONER Versus 1.KANHAIYA PRASAD GUPTA 2.Radhey Shyam Gupta 3.Sri Nath Gupta All sons of Harinarain Sao(Deceased), residents of village Piro, police station Piro District Bhojpur 4.Radhika Devi wife of Sarju Prasad, resident of village Piro, P.S. Piro, District Bhojpur 5.Kapildeo Pandey, son of Mathura Pandey 6.Manik Rajo Devi wife of Kapildeo Pandey Both residents of village Piro, Police Station Piro, District Bhojpur 7.Rahamtulla Mian son of Ilahi Mian, resident of Dehari Idgah, P.S. Dehari, District Rohtas, at Present Pior, Police Station Piro, District Bhojpur---Respondents ---- For the Appellant:-Mr. Shashi Shekhar Dwivedi, Senior Advocate With Mr. Ajay Kumar Singh, Advocate For the respondent Nos. 1 to 3:- Mr. V.Nath & Md. Waliur Rahman, Advocates ------ 21 1.12.2008 Defendant-appellant aggrieved by the order dated 3.7.2001 passed by a learned Single Judge in MJC No. 1327 of 2001 dismissingthe same has preferred this appeal under Clause 10 of the Letters Patent. Defendant no.1 aggrieved by the judgment and decree dated 30.8.1980 passed by the 3rd Additional Subordinate Judge, Arrah in Title Suit No. 77/49 of 1976-79 has preferred First Appeal No.1164 of 1980 before this Court. The appeal came up for consideration before this Court on 26.8.1999 and although no body appeared on behalf of the appellant but the Court showing indulgence granted one week time to take step for fresh service of notice under registered cover as also ordinary process. It was further directed that on its failure the appeal shall stand dismissed without further reference to the Bench. - 2 - Appellant did not comply with the said order and the appeal stood dismissed in view of the per-emptory nature of the order. Thereafter appellant filed MJC No. 4127 of 1999 before this Court and by order dated 21.4.2000 passed in the said case the appeal was restored on the appellant’s statement that the order was complied with on 24.11.1999.Thereafter the Registry placed the matter for consideration before the Court, inter alia, pointing out that the appellant had not complied the per-emptory order. The matter came up for consideration before the Court on 29.8.2000 and taking note of the aforesaid facts dismissed the appeal for non-compliance of the order. Thereafter the appellant preferred MJC No. 1327 of 2001 for recall of the order dated 26.8.1999 and 29.8.2000 referred to above and for restoration of First appeal No. 1164 of 1980. The said application has been rejected by the impugned order. Mr. Sashi Shekhar Dwivedi,Senior Advocate, appearing on behalf of the appellant submits that there is laches on the part of the appellant but the first appeal which the appellant had filed in the year 1980 and pursued for about two decades ought to have been restored, subject to the payment of cost. Md. Waliur Rahman, appears on behalf of respondent nos.1 to 3. Having heard learned Counsel for the party, we are of the opinion that the appellant having pursued the appeal diligently for about two decades the learned Judge ought to have given him opportunity. True it is that there is latches on part of the appellant but - 3 - dismissing the appeal would be too-harsh. Accordingly, order dated 3.7.2001 passed by the learned single Judge in MJC No. 1327 of 2001 is set aside and First Appeal No. 1164 of 1980 is restored to its original file subject to the appellant paying to respondent nos.1 to 3 a cost of Rs.11,000/-(Eleven Thousand) and filing receipt within two weeks and complying the order dated 26.8.1999 passed in the said appeal, if already not complied with by 3rd of December, 2008.. In the result, the appeal is allowed, order dated 3.7.2001 passed in MJC No. 1327 of 2001 is set aside with the direction aforesaid. (Chandramauli Kr.Prasad,J.) (Dr. Ravi Ranjan,J.) A.Kumar