' HASAN FEROZ, J.----This C.M.A. Bearing No,5219 of 2012 has been filed on behalf of the appellant for restoration of 1st Appeal, which was dismissed by this Court vide order dated 6-8-2012 in nonpayment of Court fee and non-prosecution. The appeal of the appellant was dismissed on 6- 8-2012 under Order XLI, Rule 17 due to nonpayment of Court fee and non-appearance.
2. I have heard the learned counsel for the parties. It has been contended by the appellant that after filing of the appeal, he could not furnish the Court fee as he was suffering from sugar and high blood pressure and the contention of the learned counsel was that since Appeal has not been listed with its number. Learned counsel for the appellant has further contended that the valuable right of the appellant will frustrate if the appeal is not restored to its original position as the purpose of appeal is to impugn the judgment wherein leave to defend could not be fulfilled by him due to reason beyond his control and as such the present appeal if not restored, ends of justice will be defeated.
3. The learned counsel for the respondent has opposed this application on the ground that the same has been filed after the lapse of 30 days as required under Article 168 of Limitation Act and thus, inherent powers cannot be invoked. Further it has been contended that the appellant has failed to give each day's account of delay for attracting condonation of delay under section 5 of Limitation Act.
4. I have in my consideration the essence of Rule 19 C.P.C. Read with section 5 of Limitation Act. It has been urged by appellant that he was prevented by a sufficient cause from appearing when the appeal was called for hearing and from depositing the Court fee. The appellant has paid Court fee on 17-10-2012 after dismissal of his appeal with an application for condonation of delay. The apparent conduct of the appellant with the deposit of court fee and so also his inability for appearing on the date fixed for hearing being taken together, attract the essence of section 5 of Limitation Act in as much as that if appellant would be precluded from pursuing of his appeal, substantial justice would not meet the ends of justice. Although the application for restoration of appeal has been filed after lapse of more than two months however, the inability expressed in shape of illness of appellant who is an aged person and that the contention of the learned counsel that the appeal was not listed with number, therefore, he could not pursue the same require consideration hence the appeal is restored subject to payment of cost of Rs,5,000 to be deposited with the Library of High Court Bar Association.
' C.M.A. Stands disposed of.
Appeal restored.