Dinker vs Babu

Thomas P. Joseph, J.—Petitioner sued the respondent in O.S. No. 65 of 1999 of the court of learned Sub Judge, Kochi for specific performance of an agreement dated 15-10-1998 for purchase of a fishing boat owned by the respondent. According to the petitioner there was an earlier agreement dated 25-02-1997 between parties. Respondent/defendant denied execution of the agreement dated 15-10-1998 but admitted that there was an agreement dated 25-02-1997. In view of that denial, petitioner wanted disputed signature to be sent to the expert along with admitted signature and filed I.A. No. 551 of 2000 for the said purpose. The suit was dismissed for default on 16-08-2002 for the reason that batta was not paid on I.A. No. 551 of 2000. According to the petitioner there was an inadvertent mistake in noting the date of posting as 15-08-2002 which happened to be a holiday and hence non appearance on 16-08-2002. Petitioner also contended that there was no order for payment of batta on I.A. No. 551 of 2000. Stating so, petitioner filed I.A. No. 709 of 2002 for restoration of suit under Order IX Rule 9 of the CPC (for short, "the Code"). That application was dismissed vide order dated 28-11-2002 which is sought to be revised in this proceeding u/s 115 of the Code. When the mater came up for hearing on admission I heard learned Counsel for petitioner on maintainability of the revision since the order dismissing the application under Order IX Rule 9 of the Code is appealable under Order 43 Rule 1(c) of the said Code. Learned Counsel in fairness conceded that remedy available to the petitioner against the impugned order is by way of an appeal. If that be so, this revision petition is not maintainable and is liable to be dismissed.

Learned Counsel requested that the time during which this revision was pending in this Court may be excluded while computing period of limitation for the appeal against the impugned order. I make it clear that it will be open to the petitioner to move appropriate application u/s 5 or 14 of the Limitation Act as circumstances may warrant, if petitioner is otherwise entitled to that course and request the court concerned to condone/exclude the period during which this revision was pending in this Court.

With the above observation this revision petition is dismissed.