ORDER : The present Special Appeal is directed against order of ld. Single Judge date.18.12.2009 passed in misc. appeal dismissing the application for restoration being barred by limitation. 2. The appeal was originally filed by the appellant who is member of Scheduled Tribe category assailing order date.21.04.1998 passed on an application filed by the respondent Prem Bai for restitution of conjugal rights u/S.9 of Hindu marriage Act, 1955 (the Act). According to the appellant it was ex-parte order and service was never effected upon him and when the appeal was preferred by the appellant, it has been specifically stated that the contents of the application filed by the respondent u/S.9 of the Act before the Family Court were completely false and he has denied the element of marriage being solemnized and in the given circumstances when they are members of Scheduled Tribe category, the application filed by the respondent u/S 9 of the Hindu Marriage Act, itself was not maintainable. 3. The appeal preferred by the present appellant against order of the ld. Family Court date.21.04.1998 when listed before the ld. Single Judge at the relevant point of time, as there was delay in filing appeal as such notices were issued of the application u/S.5 of the Limitation Act & of the appeal and after the matter being heard, ld. Single Judge of this court framed two legal questions as reveals from order date.15.5.2002 which read ad infra- (i) Whether the present appeal is maintainable in absence of necessary steps for setting aside the ex parte decree having not been taken in accordance with law before the trial Court? (ii) Where both the parties being members of Scheduled Tribe (ST) (Meena Community), whether the impugned judgment is sustainable u/S 9 of the Hindu Marriage Act by not taking into considerations the said provisions? 4. Unfortunately, when the matter later on listed after six years, counsel for the appellant could not record his presence on the date of hearing and Civil Misc. Appeal No. 1271/1999 was dismissed for non prosecution/default vide order date.19.11.2008. Since this fact was not brought to the notice of the appellant and counsel also did not inform him and as such delay caused in filing application seeking for recalling & for restoration of the appeal. In support thereof, application was filed u/S 5 of the Limitation Act. 5. When restoration application came up for hearing, ld. Since this fact was not brought to the notice of the appellant and counsel also did not inform him and as such delay caused in filing application seeking for recalling & for restoration of the appeal. In support thereof, application was filed u/S 5 of the Limitation Act. 5. When restoration application came up for hearing, ld. Single Bench of this Court was not satisfied with the delay in filing application and accordingly rejected the application filed u/S.5 of the Limitation Act for condonation of delay. In consequence thereof, restoration application was also dismissed vide order date.18.12.2009 which is subject matter of challenge before us. 6. Notices were issued by this Court of the present appeal on 08.07.2011 which was later on admitted 01.11.2011. As per office report, notices are duly served upon the respondent but no one has put in appearance despite service. 7. We have heard counsel for the appellant and also perused the application which he originally filed u/S 5 of the Limitation Act for recalling of order date.19.11.2008 and for restoration of appeal and find that sufficient reasons are being assigned for the delay being caused in filing the application for recalling and restoration of the original appeal No. 1271/1999 and if the counsel has failed to inform the appellant of the order being passed by this Court, at least he cannot be saddled with such heavy cost and we are satisfied with the justification which he has tendered and needs indulgence of this Court. 8. Consequently, the appeal is allowed. The order passed by the ld. Single Judge date.18.12.1999 is accordingly set aside. The original misc. appeal no. 1271/1999 is restored to its original number. Office to proceed.