Heard Shri Kuber Singh Yadav, learned counsel for the appellants.
This First Appeal From Order has been filed under Order 43 Rule 1(3) of the Civil Procedure Code, whereby a belated application filed by the appellant, for recall of an order dated 29.09.1997 has been dismissed as the Court found the reason given for condonation of delay in filing the restoration application to be insufficient.
The order date 29.09.1997, was an order passed on the application filed by the appellant abating his appeal under Section 5 of the U.P. Consolidation of Holdings Act.
The provision which has been invoked in this F.A.F.O., namely Order 43 Rule 1(t) is quoted herein below:-
"Order 43 Rule 1(t):- an order of refusal under Rule 19 of Order XLI to readmit, or under Rule 21 of Order XLI to rehear, an appeal"
For an F.A.F.O. to lie under Order 43 Rule 1(t), the order appealed against must either be an order under Order 41 Rule 19 or one under Order 41 Rule 21.
The order impugned is not an order under Rule 21 of Order 41 because the application before the Court below was filed by the appellant and not the respondent. The said Rule 21 deals with applications filed by a respondent, against whom an ex parte decree has been passed. The appellant in the instant case was the appellant-applicant before the Court below.
Rule 19 of Order 41, which alone may be applicable in the instant case empowers the Court to readmit an appeal dismissed under Rule 11 Sub-rule 2. The said sub rule reads as follows:-
"(2) If on the day fixed or on any day to which the hearing may be adjourned the appellant does not appear when the appeal is called for hearing, the Court may make an order that the appeal is dismissed."
Thus, Rule 19 of Order 41 deals with the dismissal of an appeal for the appellant's default.
As already noticed herein above, the appeal of the appellant had been ordered to abate on account of the start of consolidation operations in the year 1999. The recall application was filed on 19.03.2008 more than ten years later. The court below found that no cogent explanation for this inordinate delay had been furnished. It therefore refused to condone the delay and dismissed the restoration application itself.
It is therefore, clear that the order sought to be recalled was not an order passed under either Rule 19 or Rule 21 of Order 41 and therefore Order 43 Rule 1(t) cannot be invoked to challenge it.
The instant FAFO is therefore, not maintainable under Order 43 Rule 1(t).
It is accordingly dismissed.
Order Date :- 3.10.2016 Mayank