IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 4TH OCTOBER 2011 / 12TH ASWINA 1933 OP(C).No. 3189 of 2011(O) ---------------------------------- I.A. NO. 2236/2010 IN O.S. NO. 7/2005 OF THE SUB COURT, ATTINGAL DT. 29.06.2011 PETITIONER(S): ----------------------- SHYLA BEEGUM,D/O.JAMEELA BEEVI, AGED 44 YEARS,RESIDING AT AKBAR MANZIL,EDAVA VILLAGE,CHIRAYINKIL TALUK,THIRUVANANTHAPURAM. BY ADV. SRI.VAKKOM N.VIJAYAN SRI. R. SURESH SMT. V. RENJU SRI. P. ANIYAN SMT. M.A. RAMITHA RESPONDENT(S): ------------------------- 1. NAZEERKHAN,S/O.ABDUL SAMAD,AGED 50 YEARS, RESIDING AT NASI MANZIL,CONT.SOUTH WARD, KOLLAM EAST VILLAGE,KOLLAM DISTRICT,PIN-693013. 2. NASEEMA,W/O.NASEERKHAN,AGED 40 YEARS, RESIDING AT NASI MANZIL,CONT.SOUTH WARD, KOLLAM EAST VILLAGE,KOLLAM DISTRICT-693013. 3. NASARULLAH,S/O.MUHAMMED HANEEFA, AGED 42 YEARS,RESIDING AT NAVAS GARDEN, EDAVA VILLAGE,CHIRAYINKIL TALUK, THIRUVANANTHAPURAM-695304. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DS OP(C).No. 3189 of 2011(O) APPENDIX PETITIONER(S) EXHIBITS : EXHIBIT-P1: TRUE COPY OF THE PLAINT INM OS.7/2005 FILED BY THE IST AND 2ND REPONDENTS IN THE SUB COURT,ATTINGAL. EXHIBIT-P2: TRUE COPY OF THE WRITTEN STATEMENT IN OS.7/2005 FILED BY THE PETITIONER. EXHIBIT-P3: TRUE COPY OF THE JUDGEMENT PASSED BY THE SUB COURT, ATTINGAL IN OS.7/2005. EXHIBIT-P4: TRUE COPY OF THE DECREE PASSED BY THE SUB COURT,ATTINGAL IN OS.7/2005. EXHIBIT-P5: TRUE COPY OF THE IA.NO.2236/2010 FILED BY THE PETITIONER TO SET ASIED THE EXPARTE DECREE PASSED BY THE SUB COURT, ATTINGAL. EXHIBIT-P6: TRUE COPY OF THE ORDER DATED 29-6-2011 IN I.A.2236.2010 PASSED BY THE COURT SUB COURT,ATTINGAL. RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ PA TO JUDGE DS THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3189 of 2011 ==================================== Dated this the 04th day of October, 2011 J U D G M E N T Defendant in O.S. No.7 of 2005 of the court of learned Sub Judge, Attingal is the petitioner before me. A decree for partition was passed in that case. Petitioner filed I.A. No.2236 of 2010 to set aside the ex parte decree dated 17.08.2007. Some evidence was let in on behalf of the petitioner. Learned Sub Judge was not impressed by the reasons stated by petitioner and dismissed I.A. No.2236 of 2010 by Ext.P6, order. That order is under challenge. 2. By Ext.P6, order there is refusal to set aside the ex parte preliminary decree passed against petitioner. When it is pointed out that the said order is appealable under Rule 1(d) of Order XLIII of the Code of Civil Procedure (for short, “the Code”) learned counsel submitted that under the said provision what is appealabe is only an order under Rule 13 of Order IX of the Code “rejecting an application” for an order to set aside the decree passed ex parte. 3. I am afraid the interpretation made by the learned counsel cannot be accepted. For, a 'rejection' of the application O.P(C) 3189 of 2011 -: 2 :- includes its dismissal. This has been taken note of by a learned Judge of this Court in Lakhsmikutty Panickathi v. Bharghavi Panickathi (1987 [2] KLT 562) where it is observed that the words “rejecting an application” (under Rule 1 (c) of Order XLIII) are comprehensive enough to include dismissal for default or rejection in any other situation whatsoever. It is also held that whatever be the reason for dismissal or rejection (of an application under Rule 9 of Order IX of the Code) it is a 'rejection' within the meaning of Rule 1(c) of Order XLIII of the Code (as per the facts of that case). The same principle must apply to a rejection of the application as referred to in Rule 1(d) of Order XLIII of the Code as well. In other words the order impugned is appealable. There is no reason why, when statutory remedy of appeal is available this Court should interfere under Article 227 of the Constitution. Resultantly, leaving petitioner to the statutory remedy available, this Original Petition is closed. THOMAS P. JOSEPH, JUDGE. vsv