IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.1287 of 2003 JAI KRISHNA JHA @ BIHARI JHA & Versus MOST.PRITAM DEVI & ORS ----------- 9. 4.1.2010 The present application has been filed for restoration of M.J.C. No.2112 of 2002, arising out of Second Appeal No.525 of 1998 to its original file, the same having been dismissed for default on account of non-appearance of learned counsel for the petitioners. It is stated by learned counsel for the petitioners that on 13.12.2002, his Advocate’s Clerk on account of emergency call from his village home had gone to his village home and, therefore, the list had to be marked by learned counsel himself. While doing so, he failed to mark the present case. For the said reasons, he could not appear in the Court when the matter was called out. Subsequently on learning from his client on 28.7.2003 that the case had stood dismissed for default, immediately steps have been taken and the present restoration application has been filed on 30.7.2003. Learned counsel for opposite party Nos. 2,9,11 and 12, on the other hand, submits that opposite party No.2 has died as back as on - 2 - 4.12.1995 and, therefore, no substitution of his heirs after a period of 14 years should have been allowed. In the order dated 30.8.2007 while allowing the substitution petition, this Court has noted the fact that some of the heirs and legal representatives of opposite party No.2 are already on the record. Thus, the said delay could not be fatal so far as the substitution of the remaining heirs of opposite party No.2 is concerned. Moreover, as rightly pointed out by learned counsel for the appellants, the appeal itself was admitted in July, 1989 and the appellants were not aware of the death which took place after the admission of the appeal, specially when the pairvikar of this case had also died in the meantime. In view of the aforesaid facts, this Court does not find any force in the submission of learned counsel for the newly added heirs. Learned counsel for the substituted heirs of opposite party Nos. 2,9,11 and 12 further submits that the present restoration application should not be allowed since it was filed after a delay of nearly six months. The said delay has been duly explained by the petitioners and this - 3 - Court is inclined to accept the explanation on their behalf. In the above circumstances, the delay in filing the restoration application is condoned. I.A. No.4138 of 2003 is, accordingly, disposed of. The restoration application is also accordingly, allowed accepting the reasons given in the application and M.J.C. No.2112 of 2002 shall stand restored to its original file. VPS ( Ramesh Kumar Datta, J. )