Patna High Court
Manoj PrasadversusShriniwash Ojha
- Decided
- Disposal
- ALLOWED
- Bench
- PARTHA SARTHY
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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