IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.3380 of 2008 RAJ KUMAR GAJADHAR & SONS PRIVATE LIMITED, a Company incorporated under the Indian Companies Act, 1913, and having its registered office at No.2, Church Lane, within the Municipal Limits or Corporation of Calcutta in the State of West Bengal … Plaintiff-Appellant. Versus 1. SRI NAGENDRA PRASAD SINGH 2. Sri Yozendra Prasad Singh 3. Sri Rajendra Prasad Singh Sons of Shri Sahalu Pd. Singh, by occupation agriculture and farmers, residents of village Arna, P.S. Masrakh, District Saran, and also residing at no. A 57 Strand Bank Road, in the town of Calcutta 4. Dasai Prasad, son of Haruni Rai, by profession cultivation, resident of village Sanwalia, P.S. Baikunthpur, District Saran 5. Most. Lalhari Devi, wife of Dr. Ramsaarey Singh @ Dr. Rameshwar Singh 6. Kishore Singh, son of Ramasrey Singh @ Dr. Rameshwar Singh 7. Umesh Singh, Minor son of 8. Uma Kumari 9. Gita Kumari 10. Anita Kumari Minor daughters of Dr. Ramasrey Singh @ Dr. Rameshwar Singh through Sri Kamla Singh, Advocate, Guardian 11. Suraj Singh, son of Mahendra Singh, by Profession cultivator, resident of village Jagdishpur, P.S. Baikunthpur, District Saran 12. Pushp Lal Singh, son of Rachpal Singh 13. Sardho Singh, son of Rachpal Singh By profession cultivator, resident of village Harpur Jan, P.S. Marhowrah, District Saran 14. Bibi Masulan, wife of Rahmattal Mian, by profession cultivator and business, resident of Lakhanpura, P.S. Mashrakh, District Saran 15. Sheonath Singh, son of Deosaran Singh by profession cultivator, resident of village Pipara Singahi, P.S. Masrakh, District Saran 16. Sham Bahadur Prasad, son of Sheotahal Pd. By profession cultivator, resident of village Lakhanpur, P.S. Masrakh, District Saran 17. Kapildeo Rai, son of Pratap Rai, by profession cultivator, resident of village Lakhanpura, P.S. Mashrakh, District Saran 18. Ganpat Rai, son of Hari Charan Rai 2 19. Sheo Nandan Rai, son of Ganpat Rai All by profession cultivation, residents village Lakhanpura, P.S. Masrakh, District Saran 20.Mathura Prasad, son of Sheo Pahal Prasad, by profession cultivation, resident of Lakhanpur, P.S. Masrakh, District Saran 21. Singasan Singh, son of Awadh Singh, by profession cultivator, resident of village Kudaria, P.S. Masrakh, District Saran 22. Binda Prasad Sah, son of Rampati Sah, by profession cultivator, resident of village Chainpura, P.S. Masrakh, District Saran 23. Hira Singh, son of Bhardul Singh, resident of village Kartalpur, P.S. Baikunthpur, District saran 24. Mukhtar Bhagat, son of Sudama Bhagat, of village Karalpur Tole Pakri, P.S. Baikunthpur, District Saran 25. Ram Lagan Singh, son of Hanuman Singh, resident of village Hansidpur, P.S. Bakunthpur, District Saran, District Saran … Defendants- Respondents. ----------- 4. 3.3.2010 Heard counsel for the petitioner. This miscellaneous application has been filed for restoration of F.A.No. 171/1978 which has stood dismissed for non-compliance of per-emptory order dated 12.9.1983 passed by a Division Bench of this Court. Mr. Ashutosh Jha, learned counsel for the petitioner seeking to explain the delay of more than 25 years in filing of this application has submitted that it was on account of lack of knowledge on the part of the petitioner as with regard to per-emptory order dated 12.9.1983 and the death of his counsel that when he could ultimately get the information of dismissal of 3 connected first appeal through an inspection slip on 10.8.2004 that he came to know of such dismissal of the first appeal and in these circumstances, it cannot be said that the petitioner was negligent in pursuing his First Appeal (F.A. No. 171 of 1978). We have carefully perused the connected file of F.A.No. 171/1978 and have found the said appeal was filed on 1.4.1978 as against a judgment and decree dated 12.1.1978 in T.S.No. 171/1966, dismissing the suit relating to declaration of the disputed lands belonging to the plaintiff- petitioner. When the first appeal was filed there were three Advocates engaged by the petitioner, namely, Sri Rameshwar Prasad No.2, Sri O.P.Agarwal and Sri Upendra Prasad. The appeal was pending after its being admitted on 23.10.1078 and awaiting service report of notices issued on the respondents. From the order sheet of the connected F.A. No. 171/1998 it would also transpire that the order of the Registrar of this Court dated 25.1.1979 for taking fresh steps for service of notice against non-appearing respondents was not complied for a long time only because it was not per- 4 emptory. It has to be noted that in the meantime the appeal had abated as against the heirs of the deceased respondent no.20 as no steps for substitution of heirs were taken in terms of per-emptory order and the matter relating to appeal being incompetent on account of non- substitution of the heirs of respondent no.20 was left open to be considered at the time of hearing of the appeal by an order of this Court dated 14.10.1982. It has to be also noted that it was the counsel for the appellant- petitioner appearing on 17.5.1979 who had made a prayer that he should be permitted to get the paper book prepared outside the Court and as such, the prayer was also allowed by an order dated 17.5.1979 but the same was not complied till 12.9.1983 when the case was again placed before the Bench for non-compliance of the order relating to preparation and filing of the paper book as undertaken by the counsel on 17.5.1979. This Court in such circumstances had passed the following per-emptory order dated 12.9.1983: “ Let the appellant prepare 10 copies of paper book outside the Court and file them within three months, failing which the appeal 5 shall stand dismissed without further reference to a Bench. In that view of the matter, no order is called for in terms of the office note.” It would thus be clear that it was the prayer of the counsel for the appellant- petitioner which was allowed with sufficient time of further three months for filing the paper book. There is, however, nothing on record to show that the order of this Court dated 12.9.1983 was carried out and in fact in view of per- emptory order the appeal stood automatically dismissed on 12.12.1983 since the requisite number of paper books were not filed by the counsel for the appellant- petitioner. Thereafter the appeal was listed before the Bench on 26.8.1989 for taking steps for fresh service of notice on non-appearing respondents no. 12, 13, 14, 15, 16, 17, 18, 19, 21, 23, 24 and 25 and the prayer of the counsel of the appellant- petitioner for grant of time of three weeks was allowed for taking steps for fresh service of notice under registered cover with A/D on the aforementioned non-appearing respondents. This order 6 was also per-emptory in nature and when it was not complied the question of competency matter of appeal on account of its having stood dismissed against the aforementioned non-appearing respondents was directed to be considered at the time of final hearing of the appeal. It however appears that when the office of this Court had examined the records of the case for placing it under the heading hearing it was noticed that the earlier order dated 12.9.1983 as with regard to filing of the paper books was not complied and as such, an office memo was issued to the counsel for the petitioner informing that the Memo of Appeal has stood dismissed due to non-compliance of per-emptory order dated 12.9.1983 and such notice was also received on 1.9.2000 by one of the counsel as is apparent from a copy of the notice placed in the file. In this backdrop when we have examined the grounds mentioned in the restoration application which was filed on 8.12.2008 we would find that the fourth counsel, Mr. Ashutosh Jha engaged by the appellant- 7 petitioner by a vakalatnama dated 2.12.2008 had emerged on the scene who took a plea that a fifth counsel, namely, Vijay Kant Mishra on behalf of the appellant- petitioner in his information slip had got an information from the office of the Court that F.A.No. 171/1978 was still pending in view of the order dated 10.11.1997. It has to be noted that the order dated 10.11.1997 only records that the substitution petition against respondent no.1 had stood rejected for non- compliance of the order and as such, competency matter was to be considered at the time of final hearing of the appeal. There is no other inspection slip filed on behalf of the appellant- petitioner on record and as such, the first plea of the learned counsel for the petitioner in paragraph 9 enclosing the aforementioned information slip can be no ground for restoration of the appeal which stood dismissed for non-compliance of per-emptory order dated 12.9.1983 in December 1983 itself. This Court is also not impressed that one of his lawyer, namely, Mr. Rameshwar Prasad, had died and on account of that alone he could not get the 8 knowledge of per-emptory order dated 12.9.1983. Mr. Rameshwar Prasad, who had earlier filed this appeal, in fact had already been way back designated as a Senior Advocate by this Court and that is how an application was also filed by the appellant on 3.11.1987 through Sri Upendra Prasad Advocate, of one of the three counsel who has filed appeal in 1978 for seeking substitution of respondent no.1 which by itself would be a proof of the fact that Late Rameshwar Prasad, Senior Advocate who also became Advocate General in 1993 was no longer the concerned Advocate on record conducting the appeal of the petitioner. It is thus clear that laches on the part of the appellant- petitioner is writ large on the face of record and the appeal had stood dismissed for non- compliance of per-emptory order in December 1983 itself as also had stood abated for non-substitution of the deceased respondent no.1 and respondent no.20 making this appeal even incompetent. In this respect it has to be noted that the judgment and decree under appeal is inseparable and when it has stood abated against the main contesting respondent no.1 and the per-emptory 9 order of this Court dated 12.9.1983 has not been complied even till today, this Court would not be impressed with the submission of the learned counsel for the appellant- petitioner that subsequently part compliance of the order was sought to be made by filing six out of ten copies of paper book. This miscellaneous application infact has also been filed against the dead persons, namely, Nagendra Prasad Singh, Mathura Prasad and Binda Prasad Sah, O.P.Nos. 1, 20 and 22 to this application being defendants- respondents no. 1, 20 and 22 to the connected F.A.No. 171/1978 against whom the same has stood abated on account of their non-substitution after their death. It is, thus, clear that the first appeal which has stood abated and also dismissed on account of non- compliance of per-emptory order is sought to be revived by furnishing misleading information only by way of change of counsel and that too by taking incorrect pleas as noticed above. Thus, we are not inclined to allow whipping of a dead horse after a period of more than 25 years. 10 That being so, we find no justification in now restoring the First Appeal No. 171/ 1978 to its original file. In the result, this application being devoid of any merit must be and is hereby dismissed. There would be, however, no order as to costs. (Dipak Misra,C.J.) (Mihir Kumar Jha,J.) Surendra/