Kerala High Court: Family Court’s Rejection Of Order IX Rule 9 Application Appealable, Original Petition Not Maintainable
Sanchayita Lahkar
The High Court of Kerala, Division Bench of Justice Devan Ramachandran and Justice M.B. Snehalatha recently declined to entertain an Original Petition challenging the Family Court’s refusal to restore a dismissed matrimonial case. The Bench observed that the Family Court had rejected an application filed under Order IX Rule 9 of the Code of Civil Procedure seeking restoration of a case dismissed for non-appearance. Stating that a statutory appeal lies under Order XLIII of the Code against such an order, the Court held that the petitioner could not invoke its writ jurisdiction when an alternative appellate remedy was available. Consequently, the petition was dismissed, though the petitioner was permitted to pursue the remedy prescribed by law.
The petitioner instituted an original petition before the Family Court, Kasaragod, seeking relief in a matrimonial dispute. The petition was dismissed for non-appearance. Thereafter, the petitioner filed an application under Order IX Rule 9 of the Code of Civil Procedure for restoration of the dismissed case, accompanied by an application to condone a delay of 118 days in filing the same. Both applications were dismissed by the Family Court, leading the petitioner to approach the High Court through an Original Petition filed under Article 226 of the Constitution of India, challenging the said orders.
The petitioner contended that the Family Court erred in refusing to restore the original petition despite the reasons shown for the delay being bona fide. The respondent opposed the maintainability of the Original Petition, arguing that an effective statutory remedy was available under the Code of Civil Procedure and that the invocation of writ jurisdiction was unwarranted.
The Division Bench of the High Court examined whether the petitioner could invoke the writ jurisdiction under Article 226 when an appeal remedy was expressly provided under Order XLIII Rule 1(c) of the Code. The Bench confined its analysis to this procedural question, assessing the scope of Orders IX and XLIII of the Code and whether the High Court could entertain a writ petition in the presence of a prescribed appellate mechanism.
The Bench “observed that 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.”
The Court “noticed 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 then “recorded that 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.”
The Bench confined its scrutiny to the procedural issue of maintainability and refrained from considering the merits of the petitioner’s grievance. It “found that the petitioner’s proper course was to avail of the appeal provided by the Code and not to invoke the extraordinary jurisdiction of the High Court.”
“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.”
Advocates Representing the Parties:
For the Petitioner: Sri. Rahul Sasi and Smt. Neethu Prem, Advocates
For the Respondent: None recorded in the judgment
Case Title: Shaheen Hameed v. Muhammed Ajnas A.B.
Neutral Citation: 2025:KER:80273
Case Number: OP (FC) No. 621 of 2025
Bench: Justice Devan Ramachandran and Justice M.B. Snehalatha
