Sreevalsan v. Jose

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 24[TH] DAY OF FEBRUARY 2022 / 5TH PHALGUNA,** **1943** **OP(C) NO. 365 OF 2017** **OS 5263/2014 OF PRINCIPAL MUNSIFF COURT, IRINJALAKUDA** ## **PETITIONER :** **SREEVALSAN AGED 67 YEARS, S/O.CHOOLIKATTIL KRISHNAN, MANAVALASSERY VILLAGE DESOM, MUKUNDAPURAM TALUK.** **BY ADV SRI.G.SREEKUMAR (CHELUR)** ## **RESPONDENT :** **JOSE, AGED 61, S/O.AKARAKARAN LONAPPAN, MANAVALASSERY VILLAGE, IRINJALAKUDA DESOM, MUKUNDAPURAM TALUK-680001.** **BY ADVS. SRI.P.A.AUGUSTIAN SRI.M.A.BABY** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07.02.2022, THE COURT ON 24.02.2022 DELIVERED THE FOLLOWING:** O.P.(C)No.365 of 2017 ..2.. ## **“CR”** ## **A.BADHARUDEEN, J.** **-----------------------------------------------------------O.P.(C)No.365 of 2017 -----------------------------------------------------------Dated this the 24[th] day of February, 2022** ## **J U D G M E N T** The petitioner herein is the defendant in O.S.No.5263 of 2014 on the file of the Principal Munsiff Court, Irinjalakuda and he has filed this original petition under Article 227 of the Constitution of India challenging Ext.P4 Viz., order in I.A.No.11262 of 2015 in O.S.No.5263 of 2014 dated 13.10.2016 whereby, the learned Munsiff allowed an amendment application filed by the plaintiff to incorporate prayer for recovery of advance sale O.P.(C)No.365 of 2017 ..3.. consideration based on a contract of sale, upon which, a decree of prohibitory injunction was originally canvassed in the said suit. 2. Heard Adv.Sri.Sreekumar G Chelur, the learned counsel for the petitioner and Adv.Sri.P.A.Augustin, the learned counsel for the respondent. 3. The learned counsel for the petitioner submitted that originally O.S.No.5263 of 2014 was filed by the plaintiff/respondent herein seeking a decree of permanent prohibitory injunction based on an agreement for sale dated 07.11.2014. Subsequently, the respondent filed another suit as O.S.No.183 of 2015 before the Sub Court, Irinjalakuda seeking return of the advance amount covered by the same agreement. Later, the said suit was rejected as per order dated O.P.(C)No.365 of 2017 ..4.. 05.01.2017 for non-payment of balance court fee. According to the learned counsel for the petitioner, rejection of plaint for non-payment of balance court fee is a decree, therefore, the respondent ought to have opted the remedy of appeal or by review, so as to continue with O.S.No.183 of 2015 and the respondent cannot amend and incorporate the relief sought for in O.S.No.183 of 2015, in the former suit pending (O.S.No.5263 of 2014). He submitted further that instead of filing appeal or review in O.S.No.183 of 2015, the respondent herein filed amendment application I.A.No.11262 of 2015 and the learned Munsiff allowed the same erroneously, since the said action is not justifiable in terms of the law prevailing. 4. The learned counsel for the petitioner placed two decisions in support of his contentions. The O.P.(C)No.365 of 2017 ..5.. first decision is one reported in [1959 KLT 1324], **Eso Umman (Plaintiff) v. Gheevarghese Abraham (Defendant)** . In the said decision, it was held that rejection of plaint under Order 7 Rule 11(c) is a decree and therefore, Order IX Rule 9, Sections 148, 149 and 151 have no application. It was held further that plaint rejected for non-payment of deficit Court fee to be appealed or reviewed accordingly. Another decision reported in [1978 KLT 463], **Janaki Amma v. Krishnan** has been placed to contend that, after rejection of plaint, it is not possible to incorporate an amendment in another suit for the same relief without challenging the decree in the form of rejection of plaint. Paragraph 7 of the judgment has been given emphasis in this regard. The relevant portion of the judgment is extracted hereunder; O.P.(C)No.365 of 2017 ..6.. “7. xxx Though under S.2(2) of the Code, a decree shall be deemed to include the rejection of a plaint, which, therefore, is appealable under S.96 of the Code, can it be said that rejection of plaint conditionally on non-payment of deficit court fee within the time allowed, is a 'conditional decree' which, in essence, is not in terrorem but one adjudicating rights of parties and under which the opposite party acquires some inviolable right or rights on the happening or non-happening as the case may be of the condition. In view of R.13 Order VII which enables the plaintiff to bring a fresh suit on the same cause of action, if otherwise he is entitled to, and which expressly provides that the rejection of the plaint under Rule H shall not of its own force stand in the way of the plaintiff in so bringing a fresh suit, it appears to me, that a conditional rejection of a plaint dependant upon non-payment of deficit court fees within the time limit can only be characterised as a 'procedural order' intended to frighten and intimidate the plaintiff and not as a 'conditional decree' which as stated by the Supreme Court in the O.P.(C)No.365 of 2017 ..7.. Mahanath Ram Das case stands on a different footing altogether. In such cases of conditional rejection of the plaint, can the court enlarge the time for payment of deficit court fees, after the expiry of the original period fixed by the conditional order on a petition filed (also after the period) in that behalf is the question that is debated at the bar.” 5. In the above decision, the questions discussed were; _1) power of the Court to decide the question of court fee 2) whether the Court has power to dismiss the suit for non-payment of court fee and 3) whether the period for payment of court fee can be extended under Section 148 of the CPC after the period fixed for payment of court fee was expired._ In fact, the said decision not laid down the legal position canvassed by the learned counsel for the petitioner. 6. The learned counsel for the O.P.(C)No.365 of 2017 ..8.. respondent/plaintiff disarmed this argument by referring proviso to Order VII Rule 13. According to the learned counsel for the respondent, as per the said proviso, rejection of plaint for non-payment of court fee does not preclude presentation of a fresh plaint and therefore, a relief, which was asked for in a suit which was rejected for non-payment of court fee, can be incorporated by way of amendment in another suit based on the same document and the same cause of action and such an option is not bad in law. Therefore, it is argued that the amendment allowed by the trial court, is in order and the same does not require any interference. 7. In this connection, the learned counsel for the respondent placed a decision reported in [AIR 1951 Calcutta 262], **Ahmed Hossein – Vs – Chembelli** dealing with Order 7 Rule 11 and 13 of CPC. In fact, the O.P.(C)No.365 of 2017 ..9.. ratio of the above decision has no direct nexus to the question involved in this case. 8. In view of this contention, I am inclined to extract Order 7 Rule 13 as under; “ **13. Where rejection of plaint does not preclude presentation of fresh plaint** .- The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.” 9. Thus, the crucial question that requires answer in this matter is _**whether it is permissible to incorporate a relief by way of amendment in another suit pending, based on the same cause of action, which was asked for in another suit and was rejected for non-payment of court fee and thus formulated into a decree?**_ O.P.(C)No.365 of 2017 ..10.. 10. Since Rule 13 of Order 7 permits filing of a fresh plaint based on the same cause of action reference to Order 23 Rule 1(4) CPC is necessary as pointed out by the learned counsel for the petitioner. 11. In this regard, I am inclined to extract Order 23 Rule 1(4) of CPC as under; “(4) Where the plaintiff - (a) abandons any suit or part of claim under sub-rule(1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.“ 12. Order 23 Rule 1(4) provides that where the plaintiff abandons any suit or part of claim under Sub-rule (1) or withdraws from a suit or part of a claim O.P.(C)No.365 of 2017 ..11.. without permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of the such subject-matter or such part of the claim. Here comes a significant query; how both theses provisions to be reconciled. In this view of the matter, it is relevant to note that when two provisions of the same statute deal with two separate instances, by operation of one provision, another provision cannot be made inoperative or redundant. To be more illustrative; the Courts shall have to give effect to both provisions in a harmonious manner based on the facts dealt in each particular case with a view to give emphasis to the relevant provision of law in tune with the legislative mandate. No doubt, Order 23 deals with general principles when the plaintiff abandons any suit or part of claim or withdraws from a O.P.(C)No.365 of 2017 ..12.. suit or part of claim without permission of the Court and the said provisions make it clear that in such instances the plaintiff shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of claim, if no permission is granted by the Court to institute a fresh suit. But the said general principles have application only in tune with the other provision in the same statute dealing with particular instances. It is by keeping the said principle in mind the mandate of Order 7 Rule 13 to be given emphasis. Order 7 Rule 13 specifically permits filing of a fresh suit in respect of the same cause of action after rejection of a plaint under Order 7 Rule 11 of CPC. Therefore, the mandate of the said provision cannot be erased or made inoperative by Order 23. 13. It is not in dispute that the rejection of O.P.(C)No.365 of 2017 ..13.. plaint under Order 7 Rule 11(c) is a decree as defined under Section 2(2) of CPC. Therefore, the said decree is appealable as provided under Section 96 read with Order 41 of CPC. It is also equally settled that a review petition is also maintainable challenging the said decree as in the case of other decrees in terms of Section 114 read with Order 47 of CPC. 14. Here, though O.S.No.189 of 2015 was rejected for non-payment of Court fee, a fresh suit is permitted by Order 7 Rule 13. Axiomatically, it means that right to sue survives even after rejection of plaint for non-payment of Court fee. 15. In this particular case, instead of filing a fresh suit, the plaintiff herein filed application to amend another suit based on the same agreement and incorporated the plea to get back the advance money O.P.(C)No.365 of 2017 ..14.. based on the agreement and in accordance with the same cause of action. Thus, it is clear that the amendment was sought for in a suit for permanent prohibitory injunction and therein the cause of action is the execution of the agreement for sale, where upon the plaintiff sought the relief of recovery of advance money also. 16. It is submitted by the learned counsel for the respondent that in view of the amendment, the case itself was transferred to the Sub Court, since the Sub Court alone has the pecuniary jurisdiction to entertain the suit after the amendment. 17. Thus, the law emerges is that once Order 13 Rule 7 permits the plaintiff to institute a fresh suit even after rejection of the plaint under Order 7 Rule 11, there is no reason to hold that the plaintiff is precluded O.P.(C)No.365 of 2017 ..15.. from incorporating the said plea in a pending suit based on the same agreement that too arose out of the same cause of action. In such view of the matter, the order impugned is liable to be sustained. Therefore, the same needs no interference as the same does not suffer from any arbitrariness, perversity or patent illegality. Therefore, this original petition fails and accordingly dismissed. Sd/- ## **A.BADHARUDEEN, JUDGE** rkj O.P.(C)No.365 of 2017 ..16.. ## **APPENDIX OF OP(C) 365/2017** **PETITIONER EXHIBITS** **EXHIBIT P1** **A TRUE COPY OF THE PLAINT IN O.S.5263 OF 2014 ON THE FILE OF THE MUNSIFF COURT, IRINJALAKUDA DATED 29.11.2014** **EXHIBIT P2** **A TRUE COPY OF THE WRITTEN STATEMENT IN EXT P1 SUIT BY THE PETITIONER HEREIN DATED 18.2.2015** **EXHIBIT P3** **A TRUE COPY OF THE PLAINT IN O.S.183 OF 2015 FILED BY THE RESPONDENT HEREIN DATED 7.10.2014** **EXHIBIT P4** **A TRUE COPY OF THE ORDER PASSED IN I.A.11262 OF 2015 IN O.S.5263 OF 2014 ON THE FILE OF THE PRL.MUNSIFF COURT, IRINJALAKUDA DATED 13.10.2016.** **EXHIBIT P5.** **A TRUE COPY OF THE PLAINT IN OS NO.1/2016 DATED 1/1/2016 OF THE MUNSIFF COURT, IRINJALAKUDA.**