IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 OP(C).No. 499 of 2010(O) ------------------------ CMA.83/2010 of DISTRICT COURT,KOLLAM IA NO.1394/2009 IN OS.315/2005 OF PRINCIPAL SUB COURT, KOLLAM .................... PETITIONERS/RESPONDENTS/DEFENDANTS ------------------------------------------------------ 1. AJAYAGHOSH @ AJAYAKUMAR, MANALLOOR VEEDU, NJAKKANAL, OACHIRA VILLAGE, KOLLAM DISTRICT. 2. GOPALAN, MANALLOOR VEEDU, NJAKKANAL, OACHIRA VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.C.RAJENDRAN RESPONDENT(S): PLAINTIFFS ------------------------- 1. KARTHIYAYANI, D/O.KUNJUPENNU, KALLELIL VEEDU, MADATHIL, KARANMA MURI, OACHIRA, KOLLAM DISTRICT-690526. 2. SUBASH CHANDRAN, KALLELIL VEEDU, MADATHIL, MARANMA MURI, OACHIRA, KOLLAM DISTRICT-690526, NOW RESIDING AT POURNAMI, T.C.11/1104, THIRUVANANTHAPURAM. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.499 of 2010 -------------------------------------- Dated this the 29th day of October, 2010. JUDGMENT This petition is filed by the defendants in O.S.No.315 of 2005 of the court of learned Sub Judge, Kollam and appellants in C.M.A. No.83 of 2010 of the court of learned District Judge, Kollam. The appeal was dismissed at the threshold holding that it is not maintainable. Respondents/plaintiffs filed the suit against petitioners. Petitioners filed written statement with a counter claim. The case was posted for trial in the list on 07.02.2010. That day there was an exparte decree against petitioners and dismissal of counter claim on account of their absence. Petitioners filed I.A.No.2022 of 2010 to set the exparte decree and I.A.No.1395 of 2009 and 1394 of 2009 to set aside dismissal of the counter claim and to condone the delay in filing that application. Learned Sub Judge dismissed all the applications. The order on I.A.No.2022 of 2010 (refusing to set aside the exparte decree) is under challenge in C.M.A.No.84 of 2010 and going by the case of petitioners that appeal has been taken on file by the learned District Judge. C.M.A.No.83 of 2010 was directed against the order on I.A.No.1394 of 2009 refusing to condone the delay. Learned District Judge observed that Order XLIII Rule 1 of the Code of Civil Procedure (for short, “the Code”) does not enable a party to prefer appeal against an order dismissing an application to condone the delay and accordingly dismissed C.M.A.No.83 of 2010 at the threshold. That order is under challenge. OP(C) No.499/2010 2 2. On hearing learned counsel for petitioners and going through Order XLIII, Rule 1 of the Code I do not find reason to interfere with the view taken by the learned District Judge and the dismissal of C.M.A.No.83 of 2010. If petitioners are aggrieved by the dismissal of I.A.No.1395 of 2009 refusing to set aside dismissal of the counter claim, may be on the ground that the delay was not condoned it is open to the petitioners to challenge the order on I.A.No.1395 of 2009 as provided under law and in that proceeding challenge correctness of the order dismissing I.A.No.1394 of 2009 to condone the delay. Petition is disposed of with the above observation. THOMAS P.JOSEPH, Judge. cks