IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.180 of 2008 GIRJA RAI Versus MADAN MOHAN SINGH ----------- 6. 26.11.2008 This MJC application has been filed on 17.01.2008 by applicant Girja Rai with a prayer for restoring F.A. No. 122 of 1996 which stood dismissed due to non-compliance of the peremptory order dated 15.2.2005 which directed for filing appellant’s list and depositing initial printing cost within two weeks with a rider that if it was not complied, the appeal would stand dismissed without further reference to a Bench. The order was not complied. Hence, the said F.A. No.122 of 1996 was dismissed. On 16.4.2008 a separate I.A. No. 2181 of 2008 under Order- XXII, Rule-2 and 4(5) (b) read with Section-5 of the Limitation Act has been filed by Girija Rai, Birja Rai and Ram Akbal Rai praying for their substitutions by way of setting aside abatement due to the death of the original appellant Ram Prasad Rai under F.A. No. 122 of 1996 who died on 1.12.2007. The learned counsel for the petitioner submitted that on 15.2.2005 when the F.A. No. 122 of 1996 was listed and peremptory order dated 15.2.2005 was passed, the learned counsel for the appellant could not appear because mistakably the list was not marked by him on that date, hence, he was unaware of listing of the case. Mr. Arun Kumar, advocate has appeared in this case on behalf of the sole O.P./respondent and he has raised serious objection to the prayer for restoration of F.A. No.122 of 1996 as made by - 2 - petitioner. Firstly, it was argued that there has been abnormal delay in the filing of this MJC appeal, inasmuch as, the peremptory order was passed on 15.2.2005 but this MJC application has been filed on 17.1.2008 i.e. after two years and 11 months and there is no explanation for this delay. It was also submitted that the respondent is a residence of adjoining town Danapur which is in the same district of Patna where the Court situates and he had every opportunity to come and take care of the case. It was also submitted that the appellant had full knowledge of the peremptory order and the consequential dismissal of the appeal due to non-compliance of the order but he deliberately sat tight and did not take care in time. The learned counsel also submitted that the preemptory order dated 15.2.2005 had been passed for compliance of the order dated 14.10.2004 of the Lawazima Board, for which adjournment was also allowed before the Lawazima Board but the appellant had not taken any care to comply the order before Lawazima Board also. Besides this, the learned counsel for the respondent has also raised objection in the way that the original appellant Ram Prasad Rai died in the case and even proper steps was not taken for substitution of his heirs within the prescribed time of 90 days. In this MJC case and the petition for setting aside abatement as filed under I.A. No. 2181 of 2008 has also been filed with a delay and there is no explanation for that delay. On perusal of I.A. No. 2181 of 2008, I do not find any explanation for the delay in the filing of the same. Thus there being no reasonable explanation for the delay, the I.A. is not fit to be allowed. Hence, it is dismissed. - 3 - Upon hearing the counsels for the both sides as above, I do not find any ground justifying for restoration of F.A. No. 122 of 1996 as prayed. Therefore, the prayer is refused. This MJC application accordingly stood dismissed. (C.M. Prasad, J.) Ravi/-