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IN THE HIGH COURT OF KERALA AT ERNAKULAM
MR.JUSTICE BASANT BALAJI, J
Ramachandran S/o Late Kunjupillai – Appellant
Versus
Raveendran, S/o Late Kunjupillai – Respondent
JUDGMENT :
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, 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
The High Court's jurisdiction under Article 227 is limited; parties must appeal under Order 43 Rule 1(c) against dismissal of applications under Order 9 Rule 9 CPC.
The court emphasized the need for substantial justice, the wide discretionary powers under Article 227 of the Constitution of India, and the balance of convenience between the parties.
The court upheld the condonation of delay in filing an appeal, emphasizing a liberal approach in light of the COVID-19 pandemic and prior court directions.
Order passed under Rule 13 of Order 9 of CPC rejecting application for an order to set aside a decree passed ex parte, appeal would lie under Order XLIII Rule 1 (d) of CPC.
Availability of such a remedy under the Code of Civil Procedure to be construed as near to total bar for the remedy under Article 227 of the Constitution of India.
Condonation of delay in filing application for restoration of Civil Suit – Delay to be condoned in interest of justice provided that applicant satisfies court that he had sufficient cause for not pre....
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