IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.2097 of 2010 Dasai Mahto & Ors. Versus State Of Bihar & Ors. ----------- For the petitioners: Mr. Ganpati Trivedi, Advocate Mr. Satya Prakash Sinha, Advocate Mr. Madan Pandey,Advocate For opp. party No.5: Mr. Suraj Narain Yadav, Advocate For the State: Mr. Mritunjay Kumar, A.C. to G.P.10 ---------- 8. 13.7.2011 Heard learned counsel for the petitioners and learned counsel for opposite party No.5. The application has been filed for restoration of C.W.J.C. No.3476 of 2006, which has been dismissed on 15.12.2006 due to non-compliance of the peremptory order dated 1.12.2006. By the said order two weeks’ time was granted for taking steps for fresh service of notice on respondent No.10, as the notice issued earlier could not be served upon him. By an earlier order dated 16.5.2006, while initially issuing notices to respondent Nos. 5 to 11, this Court had directed that there shall be stay of operation of the impugned order dated 8.12.2005 (Annexure-7) passed by the learned Additional Member, Board of Revenue until further orders of this Court. On account of non-filing of the requisites within the time granted, the writ application stood dismissed on 2 15.12.2006. Thereafter on 11.5.2010, the restoration application has been filed. The stand of the petitioners is that the Advocate on record of the petitioners Mr. Sangeet Deokuhar neither complied with the Court’s order dated 1.12.2006 nor communicated the same to the petitioners and thus they were under the impression that the same is pending for hearing. This was also the information given by the Pairvikar. The petitioners claim that they received a letter dated 29.4.2010 from the DCLR, Mahua, Vaishali on 3.5.2010 that in compliance of this Court’s order dated 5.4.2010 passed in C.W.J.C. No.4608/2010, Deed No.3479 dated 28.4.2010 of Registration Office, Mahua has been executed in favour of Ram Bilas Rajak, Opposite Party No.5, with respect to Land Acquisition Case No.17 of 2001( Ram Bilas Rajak & ors.vs. Punit Mahto & ors.); and upon receipt of the said letter they made further enquiry and learnt about the dismissal of their writ petition for non-compliance of the peremptory order passed in C.W.J.C.No.3476/2006. Accordingly, the restoration application has been filed. Learned counsel for the petitioners thus submits that the writ petition is fit to be restored, as it is a case of failure 3 of the Advocate on record, who did not take proper steps in the matter and also did not inform the petitioners. Learned counsel for the opposite party No.5, on the other hand, relies upon the order sheet of Land Ceiling Case No.17 of 2000-01 and the notices issued therein to the petitioners from which it is evident that the petitioners had appeared in the Land Ceiling Case after issuance of notices on 25.8.2009. Thereafter, the case was heard finally on 17.11.2009 and the order for conveying the sale deed was also passed. It is thus submitted that the petitioners had knowledge about the dismissal of their writ petition, as the said fact was recorded in the order dated 22.12.2009 of the D.C.L.R. in Ceiling Case No.17 of 2000-01. In the supplementary counter affidavit the further stand taken on behalf of opposite party No.5 is that after obtaining the certified copy of the order dated 1.12.2006 on 11.5.2009 along with the formal order of dismissal dated 15.12.2006 recorded on 27.2.2008 by the Assistant Registrar, the opposite party No.5 had filed a substitution petition in the ceiling case along with the order sheet of this Court. The substitution petition was allowed and notices were issued to the substituted heirs. It is further stated in the 4 supplementary counter affidavit that on 25.8.2009, counsel for opposite party No.5 again filed certified copies of the orders dated 1.12.2006 and 27.2.2008 before the D.C.L.R with the list of documents. It is, thus, submitted by learned counsel for opposite party No.5 that the petitioners were well aware of dismissal of their writ petition as early as on 21.7.2009 and 25.8.2009 and thus on the sole ground that they have taken a false plea that they have learnt for the first time about the said order of dismissal of their writ petition on 3.5.2010, the writ petition ought to be dismissed. I have considered the rival submissions of learned counsels for the parties. It is possible that opposite party No.5 may have filed these documents in the ceiling case in question at any stage before the final order dated 22.12.2009 was passed as there is reference to the dismissal of C.W.J.C. No.3476/2006 in the said order. However, this Court is inclined to accept the submission of learned counsel for the petitioners that had the petitioners personally become aware of the dismissal of their case they would have no reason to not approach this Court by filing a restoration petition earlier. Further the petitioners, if they had known about the dismissal, would have ensured that the restoration 5 application was filed and the writ petition restored particularly keeping in view the fact that there was a stay order granted in the writ petition. Thus, according to this Court, while it is possible that the fact regarding dismissal for non-compliance of the writ petition may have been brought on the record in the ceiling case, yet the petitioners personally may not have become aware of the same so as to file a restoration petition in this Court. Thus, this Court does not find that the petitioners have deliberately sought to suppress the fact of earlier knowledge and wrongly stated that they learnt about the dismissal of their writ petition only on 3.5.2010. There can hardly be any doubt that the compliance of the order dated 1.12.2006 was to be made by the Advocate on record and keeping particularly in view that there was also a stay order of this Court, there was no occasion that the petitioners would not have taken appropriate steps in the matter for the issuance of fresh notices, if they would have been properly communicated by the Advocate and fault appears to be that of the Advocate on the record and pairvikar as submitted on behalf of the petitioners. 6 Further, no benefit would be derived by the petitioners by stating that, for the first time, they got knowledge about the dismissal of their writ petition on 3.5.2010, when there was no question of limitation in filing the restoration application. Thus, considering all aspects of the matter, this Court is of the view that it is a fit case for restoration of C.W.J.C.No.3476 of 2006. C.W.J.C. No.3476 of 2006 is, accordingly, directed to be restored to its original file, subject to the petitioners complying with the order dated 1.12.2006 passed in the said writ petition within a period of one week from today. VPS ( Ramesh Kumar Datta, J. )