Family Court's Order Dismissing Order IX Rule 9 Application To Restore Suit Appealable, Original Petition Not Maintainable: Kerala High Court
The Kerala High Court recently refused to entertain an Original Petition filed before it challenging a Family Court's order dismissing a restoration application. According to the Court, when an alternative statutory remedy of appeal is provided under Order 43 of the Code of Civil Procedure, that has to be pursued.
The Division Bench comprising Justice Devan Ramachandran and Justice Snehalatha M.B. noted that the Family Court had dismissed an application preferred under Order 9 Rule 9 CPC for restoring a suit that was dismissed for non-appearance.
It opined that since Rule 1(c) of Order 43 clearly provides that the order, which had rejected an application for an order to set aside the dismissal of a suit, is appealable, Original Petition before the High Court cannot be entertained.
It observed:
“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.”
Earlier, the Registry had noted an objection to the petition. Thereafter, the Court had directed for the case to be numbered since the petitioner's counsel had argued that he could convince that the same was maintainable.
However, after finding the petition to be not maintainable, the same was dismissed.
Case No: OP (FC) No. 621 of 2025
Case Title: Shahabeen Hameed v. Muhammed Ajnas A.B
Citation: 2025 LiveLaw (Ker) 703
Counsel for the petitioner: Rahul Sasi, Neethu Prem