Kerala High Court
K.B.Mohanan vs R.Devarajan on 18 July, 2011
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20933 of 2010(O)
1. K.B.MOHANAN,
... Petitioner
Vs
1. R.DEVARAJAN,
... Respondent
For Petitioner :SRI.M.V.THAMBAN
For Respondent :SRI.MAURICE VINCENT
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :18/07/2011
O R D E R
THOMAS P JOSEPH, J.
----------------------------------------
W.P(C).No.20933 of 2010
---------------------------------------
Dated this 18th day of July, 2011
JUDGMENT
Plaintiff in O.S.No.919 of 2004 of the Court of learned Principal Munsiff, Alappuzha is the petitioner before me challenging Ext.P7, common order dated March 19, 2010 on I.A.Nos.2660 and 2661 of 2008. Petitioner sued respondent for recovery of money based on a demand promissory note allegedly executed by the respondent. The suit was posted for payment of balance court fee. Since petitioner did not pay balance court fee the plaint was rejected as per order dated November 25, 2005 under Order VII Rule 11(c) Code of Civil Procedure (for short, "the Code"). Petitioner filed I.A.Nos.2660 and 2661 of 2008 for restoration of the suit under Order IX Rule 9 r/w Sec.151 of the Code and to condone the delay in filing that application. Learned Munsiff dismissed the applications holding that once the plaint is rejected for non payment of balance court fee, no question of restoration arose. That order is under challenge. Learned counsel for petitioner contended that if not as one for restoration, the application could have been treated as one for review of order rejecting the plaint. Learned counsel has placed reliance on the W.P(C).No.20933 of 2010 -: 2 :- observations made in paragraph 11 of the decision in Gangadharan Vs. James Joseph (2003(2) KLT 619).
2. In response, it is contended by learned counsel for respondent that rejection of plaint under Order VII Rule 11(c) of the Code amounts to a 'decree' and hence is appealable. Since remedy by way of appeal is available to the petitioner or, it is open to the petitioner to institute a fresh suit within the period of limitation and thus petitioner has other equally efficacious remedy, petitioner may not be allowed to seek review of the order rejecting the plaint.
3. Though, it would appear that petitioner had placed reliance on the decision in Varghese Vs. Devi Academy (1999 (1) KLT 440) in either drafting the application as one for restoration or in making his submissions before the learned Munsiff which decision states that under inherent power, the Court can direct restoration of the suit when the plaint is rejected for non payment of balance court fee, that decision has been overruled in Mable Vs. Dolores (2001(2) KLT 612) and as such the decision in Varghese Vs. Devi Academy (supra) is no more good law. Therefore, application for restoration as such does not lie when the plaint is rejected for non payment of W.P(C).No.20933 of 2010 -: 3 :- balance court fee. Learned Munsiff therefore is justified in observing that the decision in Varghese Vs. Devi Academy (supra) cannot be applied.
4. Then the question arises whether having regard to the facts and circumstances and the nature of relief prayed for, the application could have been treated as one for review. No doubt, in I.A.No.2661 of 2008 the provision of law quoted is Order IX Rule 9 r/w Sec.151 of the Code and the prayer is to restore the suit dismissed for non payment of balance court fee. But, to restore the suit dismissed for the said reason, the order rejecting the plaint has to be set aside. In effect, restoration is nothing but setting aside of the order dismissing the suit. True, a review stands on a different footing where the application must be under Order 47 Rule 1 of the Code and satisfying the requirements of the said provision. But, it is not as if in such situation the Court is helpless or the party must be send out of the Court for the reason that he has drafted the application in a way based on an earlier decision of the Court. Having regard to the circumstances stated, I am inclined to think that the application could be treated as one for review provided, appropriate reasons for such review exists. Such a course is seen permitted by the Division Bench of W.P(C).No.20933 of 2010 -: 4 :- this Court as revealed from the observations in paragraph 11 of the decision in Gangadharan Vs. James Joseph (supra). True, an appeal would also be from an order rejecting the plaint. But having regard to the facts and circumstances of the case, I am inclined to think that petitioner could be permitted to seek review by making appropriate amendment to I.A.No.2661 of 2008 to make it in conformity with the requirement of Order 47 Rule 1 of the Code.
Resultantly this petition is allowed. Ext.P7, common order is set aside and I.A.Nos.2660 and 2661 of 2008 are remitted to the Court of learned Principal Munsiff, Alappuzha for fresh disposal after giving petitioner opportunity to seek appropriate amendment to the application now styled as one for restoration. Parties shall appear before the learned Munsiff on 18.08.2011.
(THOMAS P JOSEPH, JUDGE) Sbna/-