Shahabeen Hameed vs Muhammed Ajnas A.B

Devan Ramachandran, J.

The petitioner filed OP No.141/2024 before the learned Family Court, Kasaragod, which was dismissed. He, thereupon, filed an application to restore the Original Petition - invoking the provisions of Order IX, Rule 9 of the Code of Civil Procedure (CPC), accompanied by an application to condone the delay of 118 days in filing it, but they have also been dismissed.

The petitioner has approached this Court against the aforesaid orders, through this Original Petition.

We are afraid that we cannot find this Original Petition to be maintainable because, we are of the firm view that, within the rigour of Order XLIII, Rule 1(c) of the CPC, only an Appeal will lie. In fact, we notice that the Registry had earlier raised an objection to such effect, but we had directed to number this Original Petition, at the request of the learned counsel for the petitioner, who asserted that he would be able to convince this Court to the contrary.

It is indubitable that Order XLIII, Rule 1(c) of the CPC, allows an Appeal against an order rejecting an application under Order IX, Rule 9 thereof (in a case open to Appeal) for an order to set aside the dismissal of a Suit.

We see no reason why the petitioner should be permitted to prosecute this Original Petition under Article 226 of the Constitution of India, when an alternative efficacious remedy is statutorily provided.

In the afore circumstances, we dismiss this Original Petition; however, without prejudice to the right of the petitioner to approach this Court again in terms of law.