While dismissing a petition challenging the Family Court’s dismissal of an application to restore the Original Petition, the Kerala High Court has explained that within the rigour of Order XLIII, Rule 1(c) of the CPC, only an Appeal would lie. The Bench was of the view that the petitioner should not be permitted to prosecute the Original Petition under Article 226, when an alternative efficacious remedy was statutorily provided.

The Petitioner had approached the High Court challenging the dismissal of the Petition before the Family Court. He had 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 were also dismissed.

The Division Bench of Justice Devan Ramachandran and Justice M.B.Snehalatha held, “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.”

Advocate Rahul Sasi represented the Petitioner.

Reasoning

The Bench did not find the Original Petition to be maintainable as within the rigour of Order XLIII, Rule 1(c) of the CPC, only an Appeal would lie. The Bench noticed that the Registry had earlier raised an objection to such effect, but the Bench had directed to number the Original Petition, at the request of the 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”, it held.

The Bench was of the view that the petitioner should not be permitted to prosecute the Original Petition under Article 226 of the Constitution, when an alternative efficacious remedy was statutorily provided.

Cause Title: A v. B (Neutral Citation: 2025:KER:80273)

Appearance

Petitioner: Advocates Rahul Sasi, Neethu Prem

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Kerala High CourtJustice Devan RamachandranJustice MB Snehalatha

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.