High Court of KeralaSingle Judge2024-02-15Dismissed

Roshan Kurian v. Mariyam alias Pouly

Case / Petition Number:OP(C) No.1724 of 2023

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. Jayachandran
Judgment Date: 2024-02-15
Court Decision / Holding: Original Petition is not maintainable; the petition is dismissed.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Roshan Kurian

Respondents

Mariyam alias Pouly

Legal Representation & Advocates

Counsels for Petitioners

• Adv. N.L. Bitto

Counsels for Respondents

• Adv. Sreekanth K.M
• Adv. Siyamol N.P.

Case Synopsis & Summary

Roshan Kurian filed OP(C) No.1724 of 2023 challenging Ext.P5, the order dated 14 January 2020 in IA 2932/2019 in O.S. 215/2015 before the Principal Sub Court, Irinjalakuda, which dismissed his review petition of the order rejecting the plaint for non-payment of balance court fee. The petitioner argues that the balance due under the unamended plaint has been paid; the only shortfall relates to additional court fee arising from amendments to include interest and other claims. He invokes Article 227 of the Constitution seeking relief and contends that Ext.P5 is flawed and the matter should be reconsidered. The respondent contends that IA 2932/2019 was filed against an appealable decree and that a review cannot alter the decree; the order rejecting the plaint is a deemed decree under Section 2(2) CPC, and regular appeal lies under Order XLI; the review petition was rightly dismissed in 2020, and the present challenge is time-barred. The court also relies on the Supreme Court's Rahimal Bathu v. Ashiyal Beevi (AIR 2023 SC 5674) to explain the limits of revisional/constitutional interventions where CPC remedies exist. Ultimately, the High Court held that the Original Petition is not maintainable and dismissed it, upholding the prudence of CPC remedies and the time-bar principle.

Provisions of Law Cited

Order 7, Rule 11(c) CPCOrder XLI CPCOrder XLI, Rule 1 CPCOrder XLI, Rule 22 CPCSection 2(2) CPCArticle 227 of the Constitution of India

Legal Doctrines & Maxims

Deemed decree under Section 2(2) CPC
Merger of decrees
No merger on dismissal of a review petition; remedy remains to challenge the original decree under CPC
Maintainability of a regular appeal under Order XLI; remedies under CPC vs Constitutional remedy under Article 227

Submissions & Arguments

Contentions of Appellants / Petitioners

Counsel for the petitioner contends that the balance court fee due on the unamended plaint has been paid; the only shortfall relates to the additional court fee tied to amendments for incorporating interests and other claims. IA 2932/2019, seeking review of the order rejecting the plaint, was filed in time and ought to have been allowed. The remedy sought under Article 227 cannot override the established CPC avenues. Ext.P5 is argued to be flawed as the court should consider whether the mere payment of the unamended fee suffices and whether the order dismissing the review petition can be challenged by a regular appeal under Order XLI. The decision in Rahimal Bathu v. Ashiyal Beevi (AIR 2023 SC 5674) is cited to emphasize the principle that a review cannot alter a decree; where a review is dismissed, the original decree governs the right of appeal. The petition should therefore be entertained and the matter remitted for the appropriate remedy.

Contentions of Respondents

The respondent argues that the petition is not maintainable because the order rejecting the plaint is a deemed decree under Section 2(2) CPC, and is appealable under Order XLI; a review against an appealable decree cannot change the remedy, and the inordinate delay in filing the present petition cannot be ignored. The review IA 2932/2019 was dismissed and there is no merger; the applicant should challenge the original decree, not the order dismissing the review petition. The delay (3 years and 7 months) lacks justification. Article 227 cannot be invoked to bypass the established CPC mechanism, especially since the order Ext.P3 rejecting the plaint in 2019 became final and Ext.P5 in 2020 cannot suspend the original rights to appeal. The court should dismiss the Original Petition with costs.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Rahimal Bathu and Others v. Ashiyal Beevi	AIR 2023 SC 5674	Positive	Supreme Court decision cited to support the proposition that where a review of an appealable decree is dismissed, the remedy is to challenge the original decree; it informs the maintainability assessment in this case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024/26TH MAGHA, 1945** **OP(C) NO.1724 OF 2023** **AGAINST THE ORDER DATED 14.02.2020 IN I.A.No.2932/2015 IN O.S. No.215/2015 OF PRINCIPAL SUB COURT,IRINJALAKUDA** ## **PETITIONER/PLAINTIFF:** ROSHAN KURIAN, AGED 44 YEARS, S/O.LATE KURIAN, CHEMBAKASSERY HOUSE, VAINTHALA DESOM, KALLUR VADAKKAMURI VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT, PIN – 680741. BY ADV.N.L.BITTO ## **RESPONDENT/DEFENDANT:** MARIYAM ALIAS POULY, AGED 73 YEARS, W/O. LATE KURIAN, CHEMBAKASSERY HOUSE, VAINTHALA DESOM, KALLUR VADAKKAMURI VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT, PIN – 680741. BY ADVS. SREEKANTH K.M SIYAMOL N.P.(K/858/2023) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 17.01.2024, THE COURT ON 15.02.2024, DELIVERED THE FOLLOWING: **OP(C) No.1724 of 2023** ## **- 2 -** ## **JUDGMENT** ## **Dated, this the 15[th] February, 2024** **The petitioner herein is the plaintiff in O.S. No.215/2015 pending before the Principal Sub Court, Irinjalakuda. He is aggrieved by Ext.P5 order, which dismissed the review petition seeking review of an order rejecting the plaint for nonpayment of balance court fee.** **2. Heard the learned counsel for the petitioner and respondent.** **3. Learned counsel for the petitioner submits that the entire balance court fee due, as per the unamended plaint has been paid by the petitioner/plaintiff and what was not paid was the additional court fee pursuant to amendment of the plaint for incorporating certain additional claims by way of interest. According to the learned counsel, I.A.No.2932/2019 seeking review of the** **OP(C) No.1724 of 2023** **- 3 -** **order rejecting the plaint, which was filed within the stipulated time, ought to have been allowed and Ext.P5 is therefore flawed, warranting interference under Article 227 of the Constitution of India.** **4. Per contra, this Original Petition is stiffly opposed by the learned counsel for the respondent. The first contention raised is that the instant Original Petition is not maintainable, since an order rejecting the plaint is a deemed decree appealable under Order XLI of C.P.C. It was also submitted that merely because a review was filed against an appealable decree, the remedy will not change. On merits, learned counsel would point out that the plaint was rejected vide Ext.P3 order on 9.10.2019 and Ext.P4 review application was filed on 26.10.2019. The review petition was dismissed on 14.01.2020 vide the impugned Ext.P5 order. A petition to restore the review petition was preferred on 26.07.2022, along with a petition to** **OP(C) No.1724 of 2023** **- 4 -** **condone the delay of 875 days. However, the same was not pressed on 09.10.2023. It is thereafter that the instant Original Petition was filed, challenging Ext.P5 order.** **5. Having heard the learned counsel appearing on both sides, this Court finds considerable merit in the objection preferred by the learned counsel for the respondent, both in the context of maintainability of the Original Petition, as also, on merits. Order 7, Rule 11(c) deals with rejection of the plaint for non-payment of court fee. Order 41 speaks of appeals from original decrees. Section 2(2) of the Code of Civil Procedure defines the term decree, which includes the rejection of the plaint. Since an order rejecting the plaint is a deemed decree, a regular appeal lies. The short point, which requires consideration is whether by filing a review of the order rejecting the plaint, whether the contemplated remedy of a regular first appeal will** **OP(C) No.1724 of 2023** ## **- 5 -** **undergo any change. The issue fell for consideration of the Honourable Supreme Court in Rahimal Bathu and Others v. Ashiyal Beevi [AIR 2023 SC 5674], where the maintainability of a revision is seen considered, when the review of a decree sought for was dismissed. The legal position has been discussed thus in paragraph nos.24 and 25 of the judgment, which are extracted** ## **here below:** **“24. What is clear from the above observations is, that where the review is allowed and the decree/order under review is reversed or modified, such an order shall then be a composite order whereby the court not only vacates the earlier decree or order but simultaneous with such vacation of the earlier decree or order, passes another decree or order or modifies the one made earlier. The decree so vacated, reversed or modified is then the decree that is effective for the purposes of a further appeal, if any, maintainable under law. But where the review petition is dismissed, there is no question of any merger and anyone aggrieved by the decree or order of the Tribunal or Court shall have to challenge within the time** **OP(C) No.1724 of 2023** ## **- 6 -** **stipulated by law, the original decree and not the order dismissing the review petition. Time taken by a party in diligently pursuing the remedy by way of review may in appropriate cases be excluded from consideration while condoning the delay in the filing of the appeal, but such exclusion or condonation would not imply that there is a merger of the original decree and the order dismissing the review petition. 25. Apart from above, there is another reason also for a revisional court not to entertain a revision against an order rejecting on merits an application for review of an appealable decree, which is, if the revisional court sets aside or modifies or alters a trial court’s decree, the decree of the trial court would merge in the one passed by the revisional court. In consequence, the right of the party aggrieved by the trial court’s decree to file an appeal would get affected. Further, there may be a case where a person is aggrieved by a finding of the trial court on any issue, even though the trial court’s decree may be in its favour. In that scenario, if there is an appeal by a party aggrieved by the decree, that person would have a right to take an objection against the adverse finding with the aid of the provisions of Order XLI,** **OP(C) No.1724 of 2023** **- 7 -** **Rule 22 of the CPC, but in the event of there being no appeal against the decree, such a person would lose its right to take an objection, under Order XLI, Rule 22 of the CPC, against that adverse finding."** **(underlined by me for emphasise)** **6. It is clear from the above extracted portion - particularly from the observations which are underlined above for emphasis - that there is no question of any merger, when the review petition is dismissed and a person aggrieved by the decree or the order shall have to challenge the original decree; and not the order dismissing the review petition. In the instant case, the order rejecting the plaint is a deemed decree as per Section 2(2) of the Code, which is appealable under Order XLI, Rule 1. This Court is of the opinion that the remedy contemplated from the dismissal of a suit by virtue of a decree, or for that matter a deemed decree, cannot be changed by merely asking for a review, by contending that the order dismissing** **OP(C) No.1724 of 2023** **- 8 -** **the review petition is one assailable under Article 227 of the Constitution of India.** **7. On merits, this Court notice the impugned Ext.P5 Order was passed as early as on 14.01.2020, whereas the instant Original Petition is filed only on 17.08.2023, that is to say, after a lapse of 3 years and 7 months, for which delay, no explanation, whatsoever, is forthcoming.** **8. In the circumstances, this Court finds that the Original Petition is not maintainable.** **Accordingly, this Original Petition will stand dismissed.** ## **Sd/-** ## **C.JAYACHANDRAN, JUDGE** ww **OP(C) No.1724 of 2023** ## **- 9 -** ## **APPENDIX OF OP(C) 1724/2023** ## PETITIONER'S EXHIBITS: EXHIBIT -P1 A TRUE COPY OF THE PLAINT IN O.S.215 OF 2015 BEFORE THE SUBORDINATE JUDGES COURT, IRINJALAKUDA DATED 11/3/2015. EXHIBIT -P2 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT DATED 31/07/2019. EXHIBIT-P3 A TRUE COPY OF THE JUDGEMENT IN O.S.215 OF 2015 BEFORE THE SUBORDINATE JUDGES COURT DATED 9/10/2019. EXHIBIT-P4 A TRUE COPY OF THE IA.2932 OF 2019 IN O.S. 215 OF 2015 PREFERRED BY THE PETITIONER DATED 26/10/2019 EXHIBIT-P5 A TRUE COPY OF THE ORDER IN IA.2932 OF 2019 IN O.S.215 OF 2015 OF THE SUB COURT, IRINJALAKUDA DATED 14/1/2020. RESPONDENT'S EXHIBITS: EXHIBIT R1 THE TRUE COPY OF THE COMPLAINT FILED BY THE RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHALAKUDY EXHIBIT R2 THE TRUE COPY OF THE RESTORATION PETITION IA NO.9/2022 IN I.A.NO.2932/2019 IN O.S. NO.215/2015 FILED BY THE PETITIONER BEFORE SUB COURT, IRINJALAKUDA. EXHIBIT R3 THE TRUE COPY OF THE DELAY CONDONATION PETITION IA NO.2/2022 IN IA NO.9/2022 IN I.A. NO.2932/2019 IN O.S.NO.215/2015 FILED BY THE PETITIONER BEFORE SUB COURT, IRINJALAKUDA. EXHIBIT R4 THE TRUE COPY OF THE E-COURT PROCEEDING IN R.P NO.9/2022 IN I.A NO.2932/2019 IN O.S NO.215/2015 OF SUB COURT, IRINJALAKUDA.