IMPORTANT POINT
The court emphasized the need for substantial justice, the wide discretionary powers under Article 227 of the Constitution of India, and the balance of convenience between the parties.

JUDGMENT :

1. Heard Mr. Upadhyay, learned Advocate for Petitioners and Mr. Gole, learned Advocate for Respondent No. 1.

2. Report dated 26.02.2024 filed by the Assistant Registrar, Civil Writ Petition Department states that the present Writ Petition is maintainable and rejects the contention raised by Respondents that the impugned order is to be challenged in Appeal from Order only. Hence it is taken up for hearing and disposal.

3. Present Writ Petition takes exception to the judgment & order dated 21.07.2015 passed by the learned Appellate Court in Civil Misc. Application (MCA) No. 28/2014 dismissing Application for condonation of delay of 2 years and 2 months in filing Application for restoration of Appeal. Admittedly both parties agree that delay is of 2 years and 2 months. Present Petition is filed on 07.12.2022. There is a little history as to why the Writ Petition is filed so late which needs to be delineated before I advert to the submissions made by Mr. Upadhyay and Mr. Gole.

4. RCS No. 1049/1995 is filed by Petitioners seeking declaration in respect of the suit property. After the trial, Suit was dismissed on merits on 28.07.2003. Plaintiffs being aggrieved filed statutory Appeal No. 134/2003. That Appeal was dismissed for want of prosecution and in default on 14.10.2011. Petitioners / Appellants filed MCA No. 28/2014 for restoration of the Appeal. That Application below Exh. 41 was dismissed by the impugned judgment delivered on 21.07.2015 which is the subject matter of the present Writ Petition.

5. Mr. Gole in his usual fairness has informed the Court that in the interregnum the Petitioners / Appellants filed two substantive proceedings i.e. Writ Petition (St) No. 12983/2016 and Second Appeal (St) No. 30013/2016 to challenge the judgment dated 21.07.2015 and withdrew both the proceedings on 26.09.2016 and 04.09.2022 as they were not maintainable. Thereafter Petitioners / Appellants filed the present Writ Petition in 2022.

6. Mr. Upadhyay would restrict his case to the grounds for condonation of delay. As observed, there is delay of 2 years and 2 months. He would draw my attention to the averments made in paragraph Nos. 2 and 3 of the Application and would submit that admittedly there is delay and as an officer of the Court he cannot plead any reason other than that mentioned in the Application. He would submit that when the dismissal occurred due to non-appearance of Advocate, Petitioners / Appellants requisitioned services of another Advocate and filed the aforementioned two proceedings as advised to them which are delineated by me herein above. He would submit that when it was realized that the aforementioned proceedings were not the correct proceedings, they were withdrawn resultantly leading to the delay. He has also drawn my attention to the grounds mentioned in paragraph Nos. 6 and 7 and would only make one submission i.e. Petitioners / Appellants be not penalized for the delay and be allowed to prosecute the Appeal which was filed by Petitioners / Appellants within time, but was not prosecuted. He would submit that Appeal No. 134/2003 was in fact filed by Petitioners within time to challenge dismissal of the suit proceedings. All that he would submit is that the statutory right of Appeal of the Petitioners / Appellants be protected by this Court by putting the Petitioners / Appellants to terms as deemed fit.

7. Mr. Gole raises a preliminary objection with respect to the maintainability of the present Writ Petition challenging the judgment dated 21.07.2015. He would submit that the judgment dated 21.07.2015 is required to be challenged by filing an Appeal from Order in view of the specific provisions of O. XLIII, Rule 1(1) read with O. XLI, R. 17 and R. 19 of the CPC. Considering his submissions, the said provisions are delineated herein under:-

“O. XLIII, R. 1(1) of CPC:

1: Appeals from orders— An appeal shall lie from the following orders under the provisions of Section 104, namely:—

(a) an order under Rule