CRP 409/2010 BEFORE THE HON’BLE MR.JUSTICE B.P.KATAKEY Heard Mr KP Sarma, learned senior counsel for the petitioners. The petitioners, who are the defendants in Title Suit No.72/2006, by the present petition, have sought to invoke the jurisdiction of this Court under Ar ticle 227 of the Constitution of India in challenging the judgment and order dat ed 25th May 2007 passed by the learned Civil Judge, Goalpara in Misc Appeal No.2 /2010, whereby and where-under the order dated 31st March 2010 passed by the lea rned Munsiff No.1, Goalpara rejecting the application filed under Order 9 Rule 9 of CPC for restoration of the suit to file and under Order 9 Rule 13 CPC for se tting aside the exparte decree passed against the present respondents in the cou nter-claim filed by the present petitioners, by refusing to condone the delay in filing such application, has been set aside. Learned senior counsel submits that challenge to the said judgment and o rder is made on the following grounds: (i) Since the learned trial Court has rejected the application filed by the present respondent under Section 5 of the Limitation Act whereby and where-under the prayer for condonation of delay in filing the application under Order 9 Rul e 9 of CPC and under Order 9 Rule 13 of CPC has been rejected, the said order is not appellable under Order 43 Rule 1 CPC and as such the learned appellate cour t ought not to have entertained the appeal. (ii) Even if the appeal is maintainable, since the learned trial court did no t deal with the application filed under Order 9 Rule 9 and Order 9 Rule 13 CPC o n merit, which was rejected consequent upon the rejection of the prayer for cond onation of delay, the learned appellate court after condoning the delay ought to have remanded the matter to the learned trial Court for consideration of the ap plication filed under Order 9 Rule 9 and Order 9 Rule 13 CPC on merit. (iii) The orders dated 10th May 2007 and 25th May 2007 passed by the learned t rial court dismissing T.S. No.72/ 2006 for default and decreeing the counter cla im of the defendants/petitioners exparte, respectively, have not been challenged in Misc Appeal No.2/2010. It is, however, submitted by learned counsel that as the respondent cann ot be remediless, in view of the nature of order passed by the learned trial co urt on 31st March 2010, the remedy available to the respondent is by way of an a pplication under Article 227 of the Constitution. I have considered the submissions of the learned senior counsel for the petitioners. The suit being TS No.72/2006 was filed by the present respondent in the Court of learned Munsiff No.1, Goalpara against the present petitioners as defen dants. In the said suit, the present petitioners, who are the defendants, after receipt of summons entered appearance and filed their written statement together with counter-claim. The suit filed by the respondent, however, was dismissed fo r default on 10th May 2007. Since there was a counter-claim filed by the petitio ners/defendants, the court proceeded to try the counter-claim and an exparte dec ree came to be passed on 25th May 2007 in favour of the present petitioners and against the present respondent. The respondent, thereafter, filed 2 petitions, one under Order 9 Rule 9 and Order 9 Rule 13 CPC read with Section 151 CPC for restoration of TS No.72/20 06 by recalling the order dated 10th May 2007 and for setting aside the exparte decree dated 25th May 2007 and the other under Section 5 of the Limitation Act p raying for condonation of delay in filing the said petition, which were register ed as Petition No.296/2008 and Petition No.297/ 2008, respectively. Both the pet itions were collectively numbered as Misc(J) Case No.28/ 2008. The learned trial Court, upon hearing learned counsel for the parties an d on consideration of the materials made available, by the order dated 31st Marc h 2009, rejected Petition No.297/2008 filed by the respondent seeking condonatio n of delay by holding that the respondent could not demonstrate sufficient cause in not filing the application Order 9 Rule 9 and Order 9 Rule 13 CPC in time. T he learned trial Court, consequently, dismissed Petition No.296/08 filed under O rder 9 Rule 9 and Order 9 Rule 13 CPC. The Misc Case is accordingly stood dismis sed. Being aggrieved, the respondent filed Misc Appeal No.2/2010 in the Court of the learned Civil Judge, Goalpara, which is allowed vide judgment and order dated 25th June 2010 by holding that the learned trial court was not justified i n refusing to condone the delay on the basis of the application filed under Sect ion 5 of the Limitation Act, as the respondent could not demonstrate sufficient cause in not preferring the application under Order 9 Rule 9 and Order 9 Rule 13 CPC in time. The learned appellate court has also allowed Petition No.296/2008 filed by the respondent under Order 9 Rule 9 and Order 9 Rule 13 CPC by holding that since it has found that the respondent was prevented by sufficient cause in not filing the application in time and also in not appearing in court when the case was taken up for consideration, the fitness of things requires allowing the said petition filed under Order 9 Rule 9 and Order 9 Rule 13 CPC. The first contention of the learned senior counsel for the petitioners, as noticed above, is that since the learned trial Court vide order dated 31st Ma rch 2010 has rejected the application filed under Section 5 of the Limitation Ac t and such order being not appellable, the appeal ought not to have been enterta ined by the learned appellate court. The second contention of the learned senior counsel for the petitioners is that even assuming that the appellate court has the jurisdiction to entertain the appeal, after condoning the delay, the application filed under Order 9 Rule 9 and Order 9 Rule 13 CPC ought to been remanded the matter for consideration b y the learned trial Court, since that was not considered on merit. It is evident from the order dated 31st March 2010 passed by the learned trial court that both the applications filed under Section 5 of the Limitation Act as well as the application filed under Order 9 Rule 9 and Order 9 Rule 13 CP C were clubbed together and registered as Misc(J) Case No. 28/2008. By the order dated 31st March 2010, the petition filed under Order 9 Rule 9 and Order 9 Rule 13 CPC was also rejected consequent upon rejection of the condonation petition. Since the order of rejection of the petition filed under Order 9 Rule 9 and Ord er 9 Rule 13 CPC is appellable under Rule 41 Rule 1(c) & (d) CPC, the learned co urt below had the jurisdiction to entertain the appeal filed by the respondent a gainst the order dated 31st March 2010 whereby and where-under the petition file d by the respondent under Order 9 Rule 9 and Order 9 Rule 13 CPC has been reject ed consequent upon rejection of the petition for condonation of delay. It also appears from the impugned judgment and order that a finding of f act has been recorded relating to detention of the respondent and also his kidna pping by some extremist elements for which he could not appear in court while ta king up the suit for consideration and also for not filing the application under Order 9 Rule 9 and Order 9 Rule 13 CPC in time. Having recorded such finding, n o illegality has been committed by the learned court below in deciding the appli cation filed under Order 9 Rule 9 and Order 9 Rule 13 CPC on merit, which is als o necessary to avoid further delay in deciding such application. The further contention of the learned senior counsel that the orders dat ed 10th May 2007 and 25th May 2009 were not under challenge before the learned l ower appellate court and as such, the said court ought not to have set aside the said orders, deserves to be rejected as for setting aside those orders the resp ondent filed an application under Order 9 Rule 9 and Order 9 Rule 13 CPC, which application was rejected by the learned trial court vide order dated 31st March 2010 and which order was put to challenge before the learned lower appellate cou rt in Misc Appeal No.2/2010. In view of the above, I do not find any merit to entertain this revision petition filed under Article 227 of the Constitution of India, and hence it is dismissed.