The rejection of an application under 0.9 R.9 is appealable under 0.43 rule (1)(c) regardless of the reason for rejection, and the party is entitled to file an appeal against the order dismissing the application under 0.9 R.9 for whatever reason.

1. Suit was dismissed for default. Application under 0.9 R.9 was filed by the plaintiff 54 days out of time. Therefore an application under S.5 of the Limitation Act was also filed. Application for condonation of delay was dismissed. For that reason the application under 0.9 R.9 was also dismissed. Plaintiff filed C. M. Appeal against the order rejecting the application under 0.9 R.9. In that appeal he took grounds against rejection of the delay petition also. District Judge allowed the appeal. Second defendant seeks to revise that judgment.

2. There was serious challenge against the decision of the District Judge condoning the delay. But under S 115 CPC the power of the High Court is limited to see whether there has been assumption of jurisdiction when it did not exist; or refusal to exercise jurisdiction when it existed; or in the exercise of jurisdiction there was material irregularity or illegality. If none of these grounds are there and what is involved is only decision on a question of fact by appreciation of evidence, the High Court may not be justified in revision in interfering with that conclusion even if it is of the view that a different conclusion is possible. Whether or not the delay has to be condoned is a question on which the District Judge was entitled to come to a conclusion on appreciation of the facts and evidence and he did so without incurring the risk of any jurisdictional error, irregularity or illegality. I do not think that there is any scope for interference.

3. If so, the limited ground en which the decision of the District Judge is to be considered is on the touch atone whether he had jurisdiction to entertain and dispose of the appeal. The argument was that the order of the Munisiff that had to be challenged was the one refusing to condone the delay which is not appealable and the order dismissing the application under 0.9 R.9 was only consequential on the refusal to condone the delay and it will not come within the ambit of 0.43 rule (1)(c) of the Code of Civil Procedure. I do not think I will be able to agree.

4. There is no dispute on the question that the case is one open to appeal. In such a case, an order under R.9 of 0.9 rejecting an application to set aside the dismissal of a suit is appealable under 0.43 rule (1)(c). There is nothing in the sub rule indicating that appeal is provided only where the application is rejected on being considered on the merits. The words used in the rule are only "rejecting an application". The order need not be one an the merits in order to be appealable under the clause. The argument was that when an application under 0.9 R.9 is filed out of time and it is supported by an application under S.5 of the Limitation Act the court gets jurisdiction to entertain and decide the application under 0.9 R.9 only on the delay being condoned and when the delay is not condoned the application under 0.9 R.9 is not entertainable and it will not come into the picture at all. Therefore, the contention was that the order that has to be challenged is the one refusing to condone the delay and not the one rejecting the application under 0.9 R.9 which is only an automatic and inevitable consequence of the other order. But whatever be the reason the fact remains that it is an order rejecting an application under 0.9 R.9. That much alone is sufficient for the applicability of the provision for appeal in 0.43 R.1(c).

5. The argument to the contrary seems to have been raised on the basis of the decisions in Mamuda Khateen v. Benivan Bibi (AIR 1976 Calcutta 415), in Ainthu v. Sitaram Jayanarayan (AIR 1984 Orissa 230) and in Bal Kishan v. Tulsa Bai (AIR 1987 M P 120). Those decisions only dealt with cases of appeals filed out of time being dismissed consequent on the rejection of applications under S.5 of the Limitation Act for condonation of delay. In such cases, the decisions said that an order rejecting the memorandum of appeal following the rejection of an application under