IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.1599 of 2008 PUNAM CHAND Versus GEETA RAI BHATTA & ORS. ----------- 07/ 23.09.2008 This petition has been filed for restoration of Second Appeal No. 288 of 2004, which was dismissed for default on 16.05.2008 due to non-prosecution when it was called out for hearing under Order XLI Rule 11 of the Code of Civil Procedure. Learned counsel for the opposite parties-respondents vehemently opposes the contentions of learned counsel for the petitioner-appellant and submits that the learned lawyer of the petitioner-appellant, who was engaged in the said second appeal, has not given any certificate explaining the reason of his non-appearance on that date. He also submits that earlier notices were issued in the said second appeal and order of ad-interim injunction was also passed, hence on the said date i.e. 16.05.2008 the learned advocate on record for respondents along with Senior Counsel was present. Thus, the opposite parties- respondents have suffered loss, moreso when this second appeal has been filed by the petitioner-appellant after losing in both the courts below and the suit is of the year 1979. In any view of the matter, from the averments made by the learned counsel for the petitioner-appellant and the statements made in the petition, it appears that some reasons have been shown and in any view of the matter it is the petitioner-appellant, who is going to lose due to non-appearance of his counsel on the said date. Accordingly, this petition is allowed and Second Appeal No. 288 of 2004 is restored to its 2 original file and number. However, this order will be subject to payment of cost of Rs.1,500.00 by the petitioner-appellant to learned counsel for the opposite parties-respondents, namely Mr. Khatim Raza, Advocate, within one month from today. If the aforesaid order is complied, let the said second appeal be placed for hearing under Order XLI Rule 11 of the Code of Civil Procedure on 10th of November, 2008. harish (S.N. Hussain, J.)