IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.200 of 2008 ANKUR PRASAD, SON OF LATE JAGAR NATH PRASAD, RESIDENT OF VILLAGE-SUGAULI, P.O. & P.S. SUGAULI, DISTRICT-EAST CHAMPARAN AT MOTIHARI………………………. ……………………………...DEFENDANT/PETITIONER/APPELLANT. Versus 1. DINA NATH PRASAD, SON OF RAM SHARAN PRASAD, RESIDENT OF VILLAGE-SUGAULI, P.O. & P.S. SUGAULI, DISTRICT-EAST CHAMPARAN…….PLAINTIFF/OPPOSITE PARTY NO.1/RESPONDENT 1ST PARTY. 2. AZIZUL HAQUE, SON OF MD. GANI MOHAMMAD OF VILLAGE-JATWA, P.O. & P.S. TURKAULIA, DISTRICT-EAST CHAMPARAN……………DEFENDANT/OPPOSITE 2ND PARTY/ RESPONDENT 2ND PARTY. ----------- For the Appellant : Mr. Chandra Mauleshwar, Advocate. ------------ 3. 30.3.2009. Heard the learned counsel for the appellant under Order 41 Rule 11 C.P.C. Through the instant appeal preferred under Order 43 Rule 1(t) read with Section 151 C.P.C., the appellant has prayed for setting aside the order dated 22.2.2008 passed in Misc. Case No.1 of 2005/1 of 2007 by the learned 4th Additional District Judge, East Champaran at Motihari, whereby he has dismissed the Misc. Case as barred by Article 122 of the Indian Limitation Act at the admission stage itself. It appears that the appellant herein, had filed Title Appeal No.139 of 1989 which was eventually dismissed for default on 23.9.1998 and for the restoration thereof Misc. Case No.1 of 2005/1 of 2007 was filed on 21.122.005 alongwith a petition under Section 5 of the Limitation Act for condonation of delay in filing the Misc. Case. It has been submitted on behalf of the appellant that the learned - 2 - lower appellate court had failed to consider and appreciate the pleading of the appellant. In this connection, it was submitted that Title Appeal No.139 of 1989 had been dismissed for non filing of process fee although the same had been deposited by the appellant with his counsel and clerk, but for reasons best known the same had not been filed by the counsel and his clerk. It was further sought to be submitted that no information in respect of the dismissal for default of the Title Appeal was conveyed to him by his counsel who to the contrary always kept assuring him that everything was going on smoothly and regular pairvi was being made. It was further submitted by the learned counsel for the appellant that the fact of dismissal of the Title Appeal came to his knowledge when he, apprehending foul play that an appeal of the year 1989 had still not been taken up, filed an inspection slip on 20.12.2005 and was astonished to learn that the same had been dismissed for default on 23.9.1998 for non filing of the process fee. It was also detected that pairvi had been given a go bye since 12.5.1992. The further submission on behalf of the appellant is that the learned lower appellate court had erred in not appreciating while considering the limitation petition for restoration of appeal 30 days’ time from the date of knowledge is permissible and he had filed the limitation petition within the statutory period. It was also submitted that the learned appellate court ought to have appreciated the fact that there was considerable merit in the appeal and it could not have been dismissed. Rule 19 of Order 41 C.P.C. provides for re-admission of appeal, dismissed for default, wherein it is proved that the appellant was prevented by any sufficient cause from appearing when the case is called - 3 - for hearing or from depositing the sum so required. It appears from perusal of the impugned order that the appellant had left pairvi since 22.5.1992 and although they were directed to deposit process fee by 25.6.1992, no steps were taken and the required process fee was not deposited till 23.9.1998 by reason whereof the appeal was dismissed. It further appears from perusal of the impugned order that the learned 6th Additional District Judge, East Champaran at Motihari, who passed the impugned order considered the provisions of Article 122 of the Indian Limitation Act which also provides for sufficient grounds to be shown and as no sufficient cause or grounds for restoration of the appeal were shown by the appellant the Misc. Case was dismissed as barred by Article 122 of the Indian Limitation Act. It is also apparent from perusal of the impugned order that the court took into account the fact that the suit out of which Title Appeal arose related to the property of Janta Dal and Sanyukta Socialist Party none of which were presently in existence. In the situation, stated above, I am not in a position to accede to the prayer made by the learned counsel for the appellant for restoration of the Title Appeal No.139 of 1989 to its original file since no evidence was brought before the court to show that the amount of process fee had been deposited with the lawyer/clerk for filing in court. Accordingly, the instant appeal is dismissed. P.S. (Abhijit Sinha,J)