Kerala High Court
Ramachandran vs Raveendran on 22 January, 2025
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OPC 1072/2024
2025:KER:6699
'C.R.'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
WEDNESDAY, THE 22ND DAY OF JANUARY 2025 / 2ND MAGHA, 1946
OP(C) NO. 1072 OF 2024
OS NO.310 OF 2017 OF MUNSIFF COURT, THIRUVALLA
PETITIONER/S:
1 RAMACHANDRAN
AGED 67 YEARS
S/O LATE KUNJUPILLAI, PERMANENTLY RESIDING AT CHANDRA
BHAVANAM HOUSE, NEDUMPURAM VILLAGE, PATHANAMTHITTA-689102,
PRESENTLY RESIDING AT 2/BHA/26, MADHUBAN HOUSING, BANSI, 1ST
PHASE, JODHPUR, RAJASTHAN-342005, REPRESENTED BY HIS POWER
OF ATTORNEY HOLDER KUMARI SOUMYA, AGED 39 YEARS, W/O PRADEED
K.S, RESIDING AT VELANKUNNEL HOUSE, KURICHY P.O, KOTTAYAM,
PIN - 686532
2 RADHA P.V
AGED 62 YEARS
W/O RAMACHANDRAN, PERMANENTLY RESIDING AT CHANDRA BHAVANAM
HOUSE, NEDUMPURAM VILLAGE, PATHANAMTHITTA-689102, PRESENTLY
RESIDING AT 2/BHA/26, MADHUBAN HOUSING, BANSI, 1ST PHASE,
JODHPUR, RAJASTHAN-342005, REPRESENTED BY HER POWER OF
ATTORNEY HOLDER KUMARI SOUMYA, AGED 39 YEARS, W/O PRADEED
K.S, RESIDING AT VELANKUNNEL HOUSE, KURICHY P.O, KOTTAYAM,
PIN - 686532
3 N.V.PONNAPPAN
AGED 72 YEARS
S/O LATE NANU, VELANKUNNEL HOUSE, KURICHI TALUKA, KOTTAYAM,
PIN - 686532
4 SAJEEMDRA KUMAR @ SANJU (DIED)
S/O CHANDRAN, CHANDRA BHAVANAM, NEDUMPURAM VILLAGE,
PATHANAMTHITTA, PIN - 689102
BY ADV ARJUN S.
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OPC 1072/2024
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RESPONDENT/S:
1 RAVEENDRAN,AGED 72 YEARS
S/O LATE KUNJUPILLAI, RESIDING AT CHANDRA BHAVANAM HOUSE,
NEDUMPURAM VILLAGE, PATHANAMTHITTA, PIN - 689102
2 RAJAMMA,AGED 67 YEARS
W/O RAVEENDRAN, RESIDING AT CHANDRA BHAVANAM HOUSE,
NEDUMPURAM VILLAGE, PATHANAMTHITTA, PIN - 689102
3 VINU,AGED 39 YEARS
S/O RAVEENDRAN, RESIDING AT CHANDRA BHAVANAM HOUSE,
NEDUMPURAM VILLAGE, PATHANAMTHITTA, PIN - 689102
BY ADVS.
MATHEW KURIAKOSE
J.KRISHNAKUMAR (ADOOR)(K/731/2011)
T.G.SUNIL (PERUMBAVOOR)(K/611/2007)
C.N.PRAKASH(K/000729/2017)
MONI GEORGE(K/1593/2019)
SHAJI P.K.(K/1043/2021)
ARUN.S.(K/2014/2023)
PREETHU JAGATHY(K/2047/2023)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22.01.2025, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
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OPC 1072/2024
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JUDGMENT
(Dated this the 22nd day of January 2025)
The petitioners are the plaintiffs and the respondents are the
defendants in O.S.No.310 of 2017 on the files of the Munsiff
court, Thiruvalla. The suit was filed for mandatory as well as
prohibitory injunction. The respondents were made ex parte on
29.6.2019 and posted to 22.7.2019 for ex parte evidence. On
16.8.2019, since the plaintiff was absent and there was no
representation, the suit was dismissed for default. On coming to
know that the suit was dismissed for default, R.P.No.39 of 2022
was filed under Order 9 Rule 9 CPC to set aside the dismissal for
default. Since there was a delay in filing the application, I.A.No.1
of 2022 was also filed to condone the delay of 1048 days in
preferring the application to restore the suit. The court below, by
a common order dated 30.1.2024, dismissed both the applications
by Ext.P7 order. The petitioners have approached this Court,
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under Article 227 of the Constitution of India, to call for records
leading to Ext.P7 and to set aside the same.
2. The counsel for the petitioners, Shri.Arjun S, argued that
when an application under Order 9 Rule 9 CPC is filed to set aside
the dismissal for default and if sufficient cause is shown, the trial
court ought to have taken a pragmatic justice-oriented approach
and allowed the same. The application to restore the suit was filed
with a petition to condone the delay and the petitioners have
shown sufficient cause in not approaching the court within the
time prescribed. The court below should have condoned the delay
and restored the suit. The suit was posted for ex parte evidence
on 16.8.2019. The petitioners were stationed in Rajasthan, and
because of floods in August 2018, they could not appear before
the Court, so the suit was dismissed for default. By then, COVID-
19 had spread throughout the country, and the petitioners could
not travel to Kerala and were not informed about the dismissal of
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the suit for default.
3. The apex court in suo motu Writ Petition © No.3 of
2020, excluded the period from 15.3.2020 till 28.2.2022 for the
purpose of limitation. Therefore, the abovementioned period
should have been excluded while calculating the delay.
4. The counsel for the respondents countered the argument
of the petitioners, stating that when an application is filed under
Order 9 Rule 9 CPC, with a petition to condone delay and a
common order is passed, the remedy available to the petitioner is
to file an appeal under Order 43 Rule 1(c) CPC and not an
Original Petition under Article 227 of the Constitution of India.
He submitted that the jurisdiction available to this court under
Article 227 is very limited, and it is not to correct every error and
mistake passed by the trial court. When an appellate remedy is
prescribed in the Code itself, the said remedy has to be invoked
by the petitioners. Therefore, this Original Petition itself is not
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maintainable.
5. The question to be decided is whether an Original
Petition is maintainable under Article 227 of the Constitution of
India against an order dismissing the application to condone delay
and dismissal of application filed under Order 9 Rule 9 CPC.
Order 43 Rule 1(c) CPC indeed prescribes that an appeal is
maintainable against an order under Order 9 Rule 9, rejecting an
application or an order to set aside the dismissal of a suit.
Nowhere in Order 43, an appellate provision is given against an
application dismissing the petition to condone delay. But Order
43 Rule 1-A gives the right to challenge any non-appealable
orders in an appeal against any decree.
6. In Kunhiraman v. Rossy (1979 KLT 718), a learned
Single Judge of this court has held that when a petition to excuse
delay is dismissed on the ground that it is barred, the remedy of
the person aggrieved is to file an appeal against a decree, if that
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is allowed by law, and take a ground in appeal that the lower court
was wrong in not excusing the delay in filing the appeal. In John.
v. Mammukutty (1983 KLT 1115), it was held that when the
petition to excuse the delay in filing the appeal, or an application
to set aside ex-parte decree is dismissed, and the consequent
decision of the latter appeal or application is appealable, the
proper remedy is to prefer an appeal and take ground regarding
the incorrectness of the order in the delay petition.
7. In Joshy v. Pradeep [2022 (7) KHC 369], this court,
relying on the judgment of the apex court in Virudhunagar
Hindu Nadargal Dharma Paribalana Sabhai and others v.
Tuticorin Educational Society and others (2019 KHC 7006),
held that whenever the proceedings are under the CPC and the
forum is the Civil Court, the available remedy under CPC will
deter the High Court, not merely as a measure of self imposed
restriction, but as a matter of discipline and prudence from
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exercising its power of superintendence under the Constitution.
The availability of the remedy under CPC is to be construed as
near to proper total bar for the remedy under Article 227 of the
Constitution of India.
8. The counsel for the petitioners relied on a judgment of
this court in K.Jayakumari and others v. Ismail Rawther
(2001 (2) KLT 551) and contended that this court had invoked the
revisional jurisdiction under Section 115 CPC and allowed the
petition, which was dismissed for delay by the trial court in setting
aside the application under Order 9 Rule 13. Taking note of the
fact that when substantial justice and technical considerations are
against each other, cause of substantial justice deserves to be
preferred, for the other side cannot claim to have vested right in
injustice being done because of a non-deliberate delay. In
Mohamed Ashraf v. Mazeeth [2004 1 KLJ (NOC) 15], this court
invoked jurisdiction under section 115 of CPC and condoned the
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delay in filing the petition under Order 9 Rule 9 CPC. The
counsel for the petitioner, relying on the above-mentioned two
decisions, argued that in the case on hand, when an application
for condoning the delay in filing the application under Order 9
Rule 9 CPC is dismissed, there is no appeal provided under Order
43 CPC and therefore, the said order dismissing the application
under Section 5 of the Limitation Act can be challenged, only
before this court under Article 227 of the Constitution of India.
The second part of the order dismissing the application to restore
the suit is a consequence of not condoning the delay; the same can
also be challenged in the Original Petition.
9. Coming to the facts of this case, it is seen that the
application filed as R.P.No.39 of 2022 is to restore the suit, which
was dismissed for default. I.A.No.1 of 2022 is filed under section
5 of the Limitation Act to condone the delay of 1048 days in
preferring the R.P. It is not in dispute that an appeal is provided
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against an order dismissing the application under Order 9 Rule 9,
under Order 43 Rule 1(c). It prescribes that an appeal is
maintainable against an order rejecting such an application. It
does not prescribe that the said orders should be passed on merits.
So, any order that is passed rejecting the application to set aside
the dismissal of a suit consequent to the dismissal of an
application under Section 5 of the Limitation Act is appealable
under Order 43 Rule 1(c) CPC. In the decision relied on by the
counsel for the petitioners in Mohamed Ashraf (supra) as well
as K.Jayakumari (supra), the jurisdiction of this court under
Section 115 CPC, was invoked. While challenging the application
dismissing to set aside the ex-parte decree with the petition to
condone delay, Section 115 gives power to this court to call for
records of any case which has been decided by any court
subordinate to the High Court in which no appeal lies thereto, if
such subordinate courts appear to have jurisdiction not vested by
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law or have failed to exercise jurisdiction or to have acted in the
exercise of jurisdiction illegally or with material irregularity.
10. It is to be noted that this Original Petition is filed under
Article 227 of the Constitution and not as a Revision under
Section 115 CPC. Article 227 gives the power of superintendence
over all courts and Tribunals through the direction in relation to it
in exercising jurisdiction. The said power is very limited and
cannot be compared with the jurisdiction exercised by this court
under section 115 CPC. Though the revisional jurisdiction of
Section 115 is also very limited, the jurisdiction under Article 227
is much more stringent and narrow. As held earlier, the remedy
of the petitioners is to approach the appellate court under Order
43 Rule 1(c) CPC, challenging the dismissal of the application
filed under Order 9 Rule 9 and to challenge the dismissal of the
application filed under Section 5 of the Limitation Act as a ground
in the appeal.
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11. The apex court in Estralla Rubber v. Dass Estate
(P) Ltd. [(2001) 8 SCC 97] held as follows:
"6. The scope and ambit of exercise of power and jurisdic-
tion by a High Court under Article 227 of the Constitution of In-
dia is examined and explained in a number of decisions of this
Court. The exercise of power under this article involves a duty on
the High Court to keep inferior courts and tribunals within the
bounds of their authority and to see that they do the duty expected
or required of them in a legal manner. The High Court is not
vested with any unlimited prerogative to correct all kinds of hard-
ship or wrong decisions made within the limits of the jurisdiction
of the subordinate courts or tribunals. Exercise of this power and
interfering with the orders of the courts or tribunals is restricted
to cases of serious dereliction of duty and flagrant violation of
fundamental principles of law or justice, where if the High Court
does not interfere, a grave injustice remains uncorrected. It is also
well settled that the High Court while acting under this Article,
cannot exercise its power as an appellate court or substitute its
own judgment in place of that of the subordinate court to correct
an error, which is not apparent on the face of the record. The High
Court can set aside or ignore the findings of facts of an inferior
court or tribunal, if there is no evidence at all to justify or the
finding is so perverse, that no reasonable person can possibly
come to such a conclusion, which the court or tribunal has come
to."
Therefore, I am of the opinion that the petition dismissing
an application under Order 9 Rule 9 CPC on the ground that it is
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barred by limitation has to be challenged in an appeal under Order
43 Rule 1( c ) of CPC.
This Original Petition stands dismissed as above.
SD/-
BASANT BALAJI
JUDGE
dl/
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APPENDIX OF OP(C) 1072/2024
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE PLAINT IN OS.NO.310/2017 OF
THE HON'BLE MUNSIFF'S COURT- THIRUVALLA DATED
22.06.20217
Exhibit P2 A TRUE COPY OF THE PROCEEDINGS DTD 29.06.2019 IN
OS.NO.310/ 2017 OF THE HON'BLE MUNSIFF'S COURT-
THIRUVALLA
Exhibit P3 A TRUE COPY OF THE JUDGMENT OF THE HON'BLE
MUNSIFF'S COURT- THIRUVALLA IN OS.NO.310/2017 DTD
16.08.2019
Exhibit P4 A TRUE COPY OF THE RP.NO.39/2022 IN
OS.NO.310/2017 OF THE HON'BLE MUNSIFF'S COURT
THIRUVALLA DTD 29.06.2022
Exhibit P5 A TRUE COPY OF THE IA.NO.1/2022 IN OS.NO.310/2017
OF THE HON'BLE MUNSIFF'S COURT THIRUVALLA DTD
29.06.2022
Exhibit P6 A TRUE COPY OF THE OBJECTIONS FILED BY THE
RESPONDENTS IN RP.NO.39/2022 IN OS.NO.310/2017 OF
THE HON'BLE MUNSIFF'S COURT THIRUVALLA DTD
23.09.2023
Exhibit P7 A TRUE COPY OF THE ORDER OF THE HON'BLE MUNSIFF'S
COURT THIRUVALLA IN IA.NO.01/2022 IN
OS.NO.310/2017 DTD 30.01.2024
