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Patna High Court

Manoj PrasadversusShriniwash Ojha

Decided
Disposal
ALLOWED

Holding

The Court restored the First Appeal to its original file, allowing the restoration application.

Summary

The petitioner filed an application seeking restoration of First Appeal No. 72 of 2018, which had been dismissed for default on 8 August 2022 for failing to comply with a peremptory order dated 27 June 2022 that required removal of defects in the stamp report within six weeks. The petitioner argued that a miscalculation by counsel caused the deadline to be missed and that the required e‑court fee of Rs. 22,880 was purchased on 8 August 2022, a day after the deadline. The respondent contended that the peremptory order was not complied with and that the restoration application lacked any explanation for the delay. The Court examined the timeline, noted that the fee was obtained immediately after the deadline, and found the petitioner's explanation sufficient to merit restoration. Consequently, the Court allowed the restoration application and reinstated the appeal to its original file.

Issues considered

  • Whether a First Appeal dismissed for default can be restored when the appellant demonstrates a procedural error and pays the court fee a day after the deadline
  • Whether the lack of a detailed explanation for the delay defeats the petitioner's request for restoration

Subjects

  • restoration of appeal
  • default dismissal
  • court fee
  • procedural defect
  • peremptory order
  • e‑court fee

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                               Miscellaneous Jurisdiction Case No.664 of 2025
                                                       In
                                        FIRST APPEAL No.72 of 2018
                 ======================================================
                 Manoj Prasad Son of Sri Shiv Sharan Ram, R/o Village- Babhnauli, Dr.
                 Kashila, P.O.- Ander, P.S.- Asawn, District- Siwan.

                                                                           ... ... Petitioner/s
                                                    Versus
                 Shriniwash Ojha Son of Late Ramashnkar Ojha, R/o Village- Dehura, Dr.
                 Ander, P.S. and Post Asawn, District- Siwan.

                                                        ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :    Mr. Anil Kumar Sinha, Advocate
                                               Mr. Ajay Kumar Tiwary, Advocate
                 For the Opposite Party/s :    Mr. Mithilesh Kumar Upadhayay, Advocate
                                               Ms. Tetara Kumari, Advocate
                                               Mr. Raju Prasad, Advocate
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE PARTHA SARTHY
                                       ORAL ORDER

4   16-01-2026                   Heard learned counsel for the petitioner and learned

                   counsel for the respondent.

                                 2. The instant application has been filed praying for

                   restoration of First Appeal no. 72 of 2018 which stood

                   dismissed for default on 8.8.2022 for non-compliance of the

                   peremptory order dated 27.6.2022.

                                 3. It is submitted by learned counsel appearing for the

                   petitioner that by order dated 27.6.2022, six weeks time was

                   granted to the appellant to remove the defects pointed out in the

                   stamp report, failing which it was directed that the appeal shall

                   stand dismissed without further reference to the Bench. It is
Patna High Court MJC No.664 of 2025(4) dt.16-01-2026
                                            2/3




          submitted that there were error on part of learned counsel for the

          appellant in calculating the date within which the defect had to

          be removed.

                       4. Further referring to the Annexure-P/2 to the

          restoration application, learned counsel submits that though the

          E-Court fee amount of Rs. 22,880/- was obtained by the

          appellant on 8.8.2022 itself, as a result of the inadvertent error

          in the calculation, the same was not filed. In fact the same

          should have been filed as per the Office on 7.8.2022.

                       5. The application is opposed by learned counsel

          appearing for the respondent. It is submitted that besides the

          peremptory order of this Court not having been complied with,

          there is no explanation whatsoever for the delay in filing of the

          instant restoration application. It is further submitted that the

          restoration application being devoid of any explanation, the

          same be dismissed.

                       6. Having heard learned counsel for the parties and

          having perused the contents of the record, it transpires that by

          order dated 27.6.2022, the appellant was granted six weeks time

          to remove the defects pointed out in the stamp report dated

          11.7.2018. Thus the defects had to be removed on or before

          7.8.2022. The same not having been removed, the appeal stood
           Patna High Court MJC No.664 of 2025(4) dt.16-01-2026
                                                       3/3




                     dismissed for default on 8.8.2022.

                                  7. On further perusal of the restoration application, it

                     transpires that for removal of the defects with respect to non-

                     payment of the Court fee, the appellant purchased E-Court fee

                     amount of Rs. 22,880/- on 8.8.2022. The Court fee amount

                     having been purchased on 8.8.2022, just a day after the

                     peremptory time for removal of the defects expired, the Court is

                     convinced that the petitioner has made out a case for restoration

                     of the appeal.

                                  8. The restoration application is allowed.

                                  9. First Appeal no. 72 of 2018 is restored to its

                     original file.



                                                 (Partha Sarthy, J)
sauravkrsinha/-

U


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