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8. The learned counsel appearing for the respondent has argued that the only course open to this Court is to dismiss the Civil Revision Petition. It is argued that in the decision reported in Abdulkhader v. Abdul Rahiman (1988 (1) KLT 680) a single Judge of this Court has taken a view that rejection of a plaint when the plaintiff fails to remit deficit court fees will amount to a decree, the remedy of appeal is implicit in it. It is further argued that, that position has been reiterated in Mable 's case by the Division Bench and the Division Bench has overruled the different view taken in Varghese v. Devi Academy (1999 (1) KLT 440) and also the principles laid down in Narayanan v. Madhavan (1999 (2) KLJ 84). In view of the principles laid down in Mable's case, no proceeding under Order IX is possible for restoration of the plaint which is rejected for non payment of court fee. In Velayudhan Nair v. Kerala K. Y. Kuries Pvt. Ltd. (1987 (2) KLT 449) also this Court took the view that the powers under Order IX has no application in such case.

10. The records show that the defendants entered appearance on 25.8.1998 and the case was posted to 28.8.1998 for taking evidence. From 28.8.1998 it was adjourned to 14.9.1998 and on that day it was posted to 8.10.1998 for written statement. On 8.10.1998 the written statement was filed and the suit for framing issues on 9.1.1999. On that day issues were raised. The plaintiff was directed to pay the balance court fee within 15 days and the case was adjourned to 25.3.1999 for steps. On that day the plaintiff was absent and there was no representation, the balance court fee was not paid. Hence the plaint was rejected. According to revision petitioner, he obtained a copy of the order and consulted a lawyer at Ernakulam and the lawyer informed him that his remedy is to file a petition before the trial court. The petitioner gave evidence in support of that statement also. In this connection it is to be noted that at the time when the order was passed i.e. on 24.3.1999 there were two decisions of this Court, one reported in Varghesev. Devi Academy (1999 (1) KLT 440) and also in Narayanan v. Madhavan (1999 (2) KLT 84) in which it was held that the remedy available to the party is to move the court rejecting the plaint under Section 151 of the Civil Procedure Code for restoration of the plaint. It is true that in Abdulkhader v. Abdul Rahiman (1988 (1) KLT 680) another single Judge of this Court held that neither the Code nor the Court Fees Act enables the court to dismiss a suit on merits for non-payment of court fees and an appeal is maintainable against that order. In Abdulkhader's case (supra) it was held that when the plaint is rejected for non-payment of court fee the court can enlarge the time originally fixed even after the dismissal of a petition filed under Order IX, R.9 of the CPC. The legal position was settled by the Bench decision in Mable's case. So the party cannot be blamed when he says that he approached an advocate for filing an appeal but he was advised by the lawyer that his remedy is to approach the trial court by filing a petition.

12. Now I shall consider whether the reasons stated for condoning the delay in filing the petition to set aside the order is correct. Copy of the judgment produced along with petition to condone the delay in filing the petition shows that the order was passed on 24.3.1999 and the plaintiff applied for certified copy on 29.3.1999. The date fixed for the appearance was 29.6.1999. The copy was received on 30.6.1999. So the petition to review ought to have been filed on or before 29.7.1999. But the same was filed only on 17.8.1999. So there is a delay of 22 days in filing the review petition. According to the plaintiff, he entrusted the case bundle with an advocate at Emakulam and on 9.8.1999 the counsel advised him to file appropriate petition before the trial court and not by way of appeal. Going by the principles laid down in Varghese v. Devi Academy (1999 (1) KLT 440) and Narayanan v. Madhavan (1999 (2) KLJ 84) the advise given by the advocate was perfectly justified. So the explanation offered by the petitioner for condoning the delay is sufficient. The court below ought to have allowed that application. So the order passed by the court below dismissing the application for condoning the delay was not legal or proper and liable to be set aside. I do so.