(1) LEAVE granted.

(2) WE have heard the learned Counsel for the parties. The writ appeal filed by the appellant before the Division Bench of the High Court was within time but it was dismissed in default on 2/9/1997 as nobody appeared on behalf of the appellant before the High Court on that day. On 23/7/1998 an application for recalling the order dated 2/9/1997 was filed by the appellant but it was dismissed on the ground of limitation invoking the provisions of Article 122 of the Limitation Act which prescribes a period of 30 days for making an application for restoration of an appeal dismissed in default. The High Court has held that the date of knowledge on which the order of dismissal was passed was immaterial. In the application for restoration the appellant had pleaded the material facts which are reproduced hereunder :-

"YOUR petitioner/appellant states that Mr. Ashok Kumar Roy was and is the sole advocate in the matter for the petitioner/ appellant That the said learned advocate suffered a severe heart attack in 1996 and was advised to be hospitalised In fact he was ultimately admitted to Daffodil Nursing Home and was kept in I C U for few weeks That further again on 20th August, 1997 the said learned advocate felt severe chest pain and fell seriously ill He had to undergo medical treatment According to the medical advice he was advised bed rest for one month The said learned advocate had nothing but to follow the said medical advice and was confined to bed for the said period i.e. from 20/8/1997 to 20/9/1997. Your petitioner/appellant has to produce the prescription, if necessary at the hearing. That on 15/6/1998 the petitioner/appellant had been to the said learned aadvocate to enquire about the fate of the aforesaid appeal. He was also requested to take steps for early hearing and requested by the petitioner/appellant the said learned advocate assured the petitioner/appellant that he would take steps to get the matter heard by this Honble Court shortly, he would mention the matter before the Honble Court on Monday next i.e. 26/6/1998. Accordingly, the said learned advocate mentioned the matter before the Honble Mr Justice, Satya Brata Singh, and the Honble Mr Justice, Dibyandu Bhusan Dutta on 22/6/1998 for inclusion in their Lordships list for hearing That despite such mentioning before the said Honble Court on 22/6/1998 the matter was not included in the hearing list of their Lordships, the learned advocate caused an enquiry through a Court Clerk Sri Anup Dutta as to why in spite of mentioning before their Lordships the matter was not appearing in the list Your petitioner/appellant has to produce the prescription, if necessary at the hearing That on 156 98 the petitioner/appellant had been to the said learned advocate to enquire about the fate of the aforesaid appeal He was also requested to take steps for early hearing of the appeal On being enquired and requested by the petitioner/appellant the said learned advocate assured the petitioner/appellant that he would take steps toget the matter heard by this Honble That being directed by the learned advocate, said Sri Anup Dutta searched about the matter and informed him on 14 7 98 that the said appeal being FMA 555 of 1989 was already dismissed for default on 2 9 97 by their Lordship the Honble Mr Justice, R.Dayal and the Honble Mr Justice, Amitava Lala Your petitioner/appellant states that as the learned advocate for the petitioner/ appellant fell ill medically, advised bed rest, acted accordingly and was confined to bed from 22.8.97 to 20.9.97 He was prevented from appearing before the Honble Mr.Justice, R. Dayal and Mr. Justice, Amitava Lala on 2.9.97 when the matter was called on. He was not aware at all about the said order of dismissal before 14/7/1998."

(3) IT appears that no reply to the application for restoration was filed before the High Court and the application was not opposed on the facts pleaded therein. Even in the counter