An appeal under Order XLIII Rule 1 against rejection of a delay condonation application is not maintainable when the original appeal was dismissed as not pressed, not for default.

JUDGMENT

In this F.A.O, the petitioner/appellant in I.A.No.1 of 2021 in A.S.No.118 of 2014 is challenging the order dated 23.12.2021 of the Sub Court, Pala. By the impugned order, the learned Sub Judge rejected I.A.No.1 of 2021 filed by the appellant under Section 5 of the Limitation Act to condone the delay of 2 years and 59 days in filing the restoration petition as well as the restoration petition 2 of 2021.

2. A.S.No.118 of 2014 was dismissed as not pressed on 08.11.2018. A memo was filed by the counsel for the appellant to that effect. Much later, the appellant filed restoration petition along with the application to condone the delay. The learned Sub Judge rejected both applications as noted above by the impugned order.

3. When this appeal was taken up for hearing, the learned counsel appearing for respondents 1, 11, 12 and 14 raised a preliminary objection. He submitted that an appeal under Order XLIII Rule 1 will not lie against the impugned order. The learned counsel submitted that the appeal was dismissed as not pressed. It was not dismissed for default. Therefore he contended that the F.A.O is not maintainable.

4. I find considerable force in the submission made by the learned counsel. It is clear that the appeal was dismissed as not pressed taking note of a memo filed to that effect by the counsel for the appellant before the Sub Court. It is not a case of dismissal on account of non appearance of the appellant. Therefore as contended by the learned counsel for the respondent, this appeal is not maintainable.

Hence the appeal is dismissed as not maintainable. However dismissal of this appeal shall not stand in the way of the appellant in pursuing appropriate remedies in accordance with law. It is clarified that all contentions are left open.