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.

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 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 the suit for default. suo motu

3. The apex court in 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 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 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 petit