An order refusing condonation of delay and dismissing the application for restoration of the suit is considered an order in the appeal or the application and not an order under section 5 of the Limitation Act in isolation.

1. Suit for declaration with consequential relief of permanent prohibitory injunction, titled, ‘Charan Dass v. Chander Shekhar Gupta and ors.’ filed by plaintiff, Charan Dass, the predecessor-in-interest of herein respondents, against the petitioners was dismissed in default by the trial court on 25.09.2004 as none of the parties appeared before the court on that day.

2. On 11.01.2005 plaintiff filed a composite application before the trial court headed as “RESTORATION APPLICATION" and "Application Under Section 5 of the Limitation Act for Condonation of Delay” seeking restoration of his suit after condoning the delay. The prayer part in this application is reproduced as it is important for disposal of this petition.

“It is, therefore, prayed that in view of the above facts and circumstances and others to be urged during the course of hearing the delay, if any, be condoned in the interest of justice, equity and fair-play. The application be accepted and after condoning the delay and restoration of the suit, the suit be proceeded further for expeditious disposal on merits.”

3. Defendants filed objections to this application. Learned trial court after hearing both the sides by its order dated 04.11.2006 dismissed the application for condoning delay taking the view that the delay of more than 3½ months is beyond acceptable range and that the plaintiff was obliged to file the application within prescribed period of limitation which is 30 days under Article 163 of the Limitation Act, 1995 and consequently dismissed also the application for restoration of the suit.

4. Plaintiff challenged the order dated 04.11.2006 passed by the learned trial court in a Civil Miscellaneous Appeal before the District Judge, Reasi. Learned District Judge by his judgment dated 18.03.2009 allowed the appeal, set aside the order dated 04.11.2006 passed by the learned trial court and ordered restoration of the suit filed by the plaintiff subject to payment of Rs.5000/ as costs by the plaintiff. Hence, this revision petition.

5. Petitioners/defendants have challenged the order dated 18.03.2009 passed by the learned District Judge, Reasi.

6. Heard learned counsel for the parties and perused the record.

7. In allowing the appeal, learned appellate court after hearing both sides took the view inter alia that the plaintiff (therein appellant) was late in filing the appeal but negligence in action or lack of bona fide cannot be attributed to him and taking hyper technical view in such a situation may hamper the cause of justice and declining condonation of delay would mean placing a clog on the rights of the plaintiff to contest a matter concerning his civil rights and in the final analysis, he would be out of court and that in fact would suffice to condone the delay.

8. Petitioners (defendants) have challenged the impugned order dated 18.03.2009 primarily on the ground that the same has been passed by the learned District Judge without jurisdiction as the Code of Civil Procedure (for short, the Code) does not provide for an appeal against an order refusing condonation of delay under Section 5 of the Limitation Act and the only remedy available to the aggrieved party against such an order is to file a revision before the High Court. Besides, the order is challenged on merits and it is contended that no case for condoning the delay was made out. Contextually, it is contended also that the learned District Judge has fallen in error by not taking up the question of delay alone but also the application for restoration of the suit, which was required to be disposed of by the trial Court.

9. Mr. Ajay Sharma, learned counsel appearing on behalf of the petitioners/defendants, argued that under the Code, besides final decree of a court, appeal lies against those orders only, which are specified in Section 104 and Order XLIII thereof. The order dated 04.11.2006 was passed by the learned trial court primarily under Section 5 of the Limitation Act, whereas dismissal of th