Thamarath Apputty and others v. Payyanakkottummal Ragini and State Bank of Travancore

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 22ND DAY OF AUGUST 2016/31ST SRAVANA, 1938** **OP(C).No. 1497 of 2015 (O) --------------------------OS 167/2012 of SUB COURT (ADDITIONAL -III), KOZHIKODE --------------** **PETITIONER(S)/PLAINTIFFS:** - **------------------------** **1. THAMARATH APPUTTY, AGED 64 YEARS, S/O.VELAPPAN,4/423 L.NALLALAM AMSOM, KOZHIKODE DISTRICT.** **2. THAMARATH SAJITH, AGED 33 YEARS, S/O.APPUTTY,4/423 L.NALLALAM AMSOM, KOZHIKODE DISTRICT.** **3. RASHBA, AGED 27 YEARS, W/O.SAJITH,4/423 L.NALLALAM AMSOM, KOZHIKODE DISTRICT.** **BY ADVS.SRI.R.SUDHISH SMT.M.MANJU** **RESPONDENT(S):** - **--------------** **1. PAYYANAKKOTTUMMAL RAGINI** - **L.I.C. AGENT, W/O.AJITH KUMAR, PAYYANAKKOTTUMMAL HOUSE, NALLALAM AMSOM,DESOM, KOZHIKODE 673 027** **2. STATE BANK OF TRAVANCORE** - **MEENCHANDA BRANCH,KOZHIKODE, REPRESENTED BY ITS BRANCH MANAGER** **R1 BY ADVS. SRI.A.RANJITH NARAYANAN** **SMT.A.SIMI SRI.S.K.SAJU R2 BY SRI.T.SETHUMADHAVAN SENIOR ADVOCATE BY ADVS. SRI.PUSHPARAJAN KODOTH** **SRI.K.JAYESH MOHANKUMAR** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** **OP(C).No. 1497 of 2015 (O) ---------------------------** ## **APPENDIX** |**PETITIONER(S)' EXHIBITS**|**PETITIONER(S)' EXHIBITS**| |---|---| |**-----------------------**|| |**P1:-**|**COPY OF THE PLAINT IN O.S.NO.167 OF 2012 ON THE FILE**| ||**OF THE IIIRD ADDITIONAL SUB JUDGE, KOZHIKODE DATED**| ||**23.2.2012.**| |**P2:-**|**COPY OF THE JUDGMENT IN O.S.NO.167 OF 2012 OF THE**| ||**IIIRD ADDITIONAL SUB JUDGE, KOZHIKODE DATED**| ||**21.6.2014.**| |**P3:-**|**COPY OF THE PETITION I.A.NO.4413 OF 2014 IN**| ||**O.S.NO.167 OF 2012 OF THE IIIRD ADDITIONAL SUB**| ||**JUDGE, KOZHIKODE DATED 7.11.2014.**| |**P4:-**|**COPY OF THE PETITION I.A.NO.4412 OF 2014 IN**| ||**O.S.NO.167 OF 2012 OF THE IIIRD ADDITIONAL SUB**| ||**JUDGE, KOZHIKODE DATED 7.11.2014.**| |**P5:-**|**COPY OF THE PETITION I.A.NO.4414 OF 2014 IN**| ||**O.S.NO.167 OF 2012 OF THE IIIRD ADDITIONAL SUB**| ||**JUDGE, KOZHIKODE DATED 7.11.2014.**| |**P6:-**|**COPY OF THE PETITION I.A.NO.4415 OF 2015 IN**| ||**O.S.NO.167 OF 2012 OF THE IIIRD ADDITIONAL SUB**| ||**JUDGE, KOZHIKODE DATED 7.11.2014.**| |**P7:-**|**COPY OF THE COMMON ORDER IN I.A.NO.4412 OF 2014 AND**| ||**I.A.NO.4413 OF 2014 IN O.S.NO.167 OF 2012 DATED**| ||**9.3.2015.**| |**P8:-**|**COPY OF THE ORDER IN I.A.NO.4414 OF 2014 AND**| ||**I.A.NO.4415 OF 2014 IN O.S.NO.167 OF 2012 DATED**| ||**9.3.2015.**| |**RESPONDENT(S)' EXHIBITS**<br>**:**<br>**NIL.**|| ||**//TRUE COPY//**| **P.S. TO JUDGE** **bp** **“C.R.”** ## **K.RAMAKRISHNAN, J.** ## **= = = = = = = = = = = = = = = = =** **O.P(C) No.1497 of 2015 - - - - - - - - - - - - - - - - - - - - - Dated this the 22[nd] day of August, 2016** ## **J U D G M E N T** This petition has been filed by the petitioners challenging Ext.P8 order passed by the court below in I.A. Nos.4414 and 4415 of 2014 in O.S. No.167 of 2012 on the file of the III Additional Sub Court, Kozhikode, under Article 227 of the Constitution of India. 2. It is alleged in the petition that petitioners filed Ext.P1 suit as O.S. No.167 of 2012 on the file of III Additional Sub Court, Kozhikode for specific performance of a contract of sale entered into between the plaintiffs-petitioners herein and defendants-respondents herein. The respondents filed a written statement raising a counter claim for mandatory injunction directing **O.P (C) No.1497 of 2015** ## **-: 2 :-** the petitioners to surrender vacant possession of the plaint schedule property. Since the petitioners did not pay the balance court fee, the suit O.S. No.167 of 2012 was rejected for non-payment of balance court as per Ext.P2 judgment and the counter claim was decreed ex parte by the same judgment. Thereafter, the petitioners filed Exts.P4 and P3 applications, I.A. Nos.4412 and 4413 of 2014 in O.S. No.167 of 2012 to set aside the ex parte decree in the counter claim along with a petition to condone the delay in filing the application to set aside the ex parte decree. Petitioners also filed Exts.P4 and P5 applications as I.A. Nos.4414 and 4415 of 2014 to review the judgment rejecting the plaint for non-payment of balance court fee. Exhibits P4 and P3 were allowed by the court below **O.P (C) No.1497 of 2015** ## **-: 3 :-** as per Ext.P7 order on payment of costs and costs was paid and the applications were allowed and the counter claim has been restored to file. But the applications filed along with the delay condonation petition to review the judgment rejecting the plaint for non-payment of balance court fee were dismissed as per Ext.P8 order stating that the said court has no power to extend the time for payment of balance court fee beyond the period mentioned under Section 4A of the Court Fees and Suits Valuation Act, 1959 (Kerala) (for short, “the Act”). Aggrieved by the said order, the present petition has been filed. 3. Heard Shri R.Sudhish, learned counsel appearing for the petitioner, Shri Renjith Narayanan, learned counsel for the 1[st] respondent **O.P (C) No.1497 of 2015** ## **-: 4 :-** and shri K. Sethumadhavan, learned Senior Counsel appearing for the 2[nd] respondent. 4. Learned counsel for the petitioner submitted that the court below was not justified in rejecting the application to review the impugned judgment stating that there is no power to extend the time beyond the statutory period. It is further submitted that having allowed the application to set aside the ex parte decree in the counter claim, the court below ought to have allowed the application for review of Ext.P2 judgment also granting time to the petitioners to pay balance court fee payable. The learned counsel also submitted that the reasonings given by the court below for dismissing the applications are not sustainable. Counsel has relied on he decision in **O.P (C) No.1497 of 2015** **-: 5 :-** **Shajahan v. Kamala Narayanan** (1997 [1] KLT 569) in support of his case. 5. On the other hand, learned counsel for the respondents submitted that the court below was perfectly justified in dismissing the applications as balance court fee was not paid even along with the petition to review the judgment. 6. It is an admitted fact that the petitioners filed O.S. No.167 of 2012 on the file of the III Additional Sub Court, Kozhikode for specific performance of a contract of sale entered into between the petitioners and the 1[st] respondent. It is also an admitted fact that the 1[st] respondent filed a written statement raising a counter claim for mandatory injunction directing the petitioners to vacate from the property as they have not **O.P (C) No.1497 of 2015** ## **-: 6 :-** complied with the conditions as per the agreement. It is also an admitted fact that since the petitioners did not pay the balance court fee as provided under Section 4A of the Act, the suit was rejected for non-payment of balance court fee under Order VII, Rule 11 of the Code of Civil Procedure and the counter claim was decreed as per Ext.P2 judgment. It is also an admitted fact that petitioners filed applications to set aside the ex parte decree passed in the counter claim along with an application to condone the delay in filing that application as I.A. Nos.4413 and 4412 of 2014. Petitioners have also filed I.A. Nos.4414 and 4415 of 2014, for review of the judgment passed in the suit dismissing the plaint for non-payment of balance court fee and to condone the delay in **O.P (C) No.1497 of 2015** ## **-: 7 :-** filing the application to review the judgment. The court below allowed the petition to set aside the ex parte decree passed in the counter claim after condoning the delay in filing the same as per Ext.P7 order on payment of costs. Learned counsel on both sides submitted that costs ordered was paid and the ex parte decree passed in the counter claim was set aside. 7. The court below had dismissed the applications to review the judgment rejecting the plaint for non-payment of balance court fee and the delay condonation petition as per Ext.P8 for the simple reason that there is no provision in the Act to receive balance court fee after the statutory period of 45 days and there is nothing on record to show that there is an error apparent on the face **O.P (C) No.1497 of 2015** ## **-: 8 :-** of the record warranting review of the judgment. 8. It may be mentioned here that when a suit is rejected for non-payment of balance court fee, it is settled law that the remedy available to the plaintiff is to file an appeal against that judgment or file a review petition. 9. In the decision reported in **Mable v. Dolores** (2001 [2] KLT 612), a Division Bench of this Court has held that when a rejection of the plaint Under Order VII, Rule 11(c) of the Code of Civil Procedure is a decree and the party has a substantive right to appeal under Section 96 of the Code and in cases where he is able to make out a case for a review under Order XLVII of the Code, the question of exercise of inherent jurisdiction of the court, normally does not arise. In a case where **O.P (C) No.1497 of 2015** ## **-: 9 :-** there is another remedy provided to the party by the Code, the court cannot ordinarily resort to its inherent power in substitution of that remedy. 10. In the decision reported in **Muhammedkutty v. Kunjamma** (1985 KLT 1055) it has been held that the remedy of the party whose appeal is rejected for non-payment of deficit court fee is to file an appeal or review and not an application under Section 151 of the Code of Civil Procedure. The same view has been reiterated in the decision reported in **Mathunni Panicker v. Mariamma Kunjamma** (1977 KLT 927) where another Division Bench of this Court held that the proper remedy when the plaint was rejected for non-payment of court fee within the specified time was either to file appeal against the order rejecting the plaint or to seek review of **O.P (C) No.1497 of 2015** ## **-: 10 :-** the order by making a proper motion before the lower court and not to file an application to restore the suit under Order IX, Rule 9 of the Code. 11. So, there is power vested in the court to review the order if reasonable grounds have been made out in the petition for reviewing the judgment. In this case, reason stated was that the plaintiffs have taken a wrong date and that prevented them from remitting payment of balance court fee within time and that ground was accepted by the court below while setting aside the ex parte decree in the counter claim and that ex parte decree was set aside. In such circumstances the court below was not justified in holding that there is nothing on record to show that there is an error apparent on the face of the record to allow the application for **O.P (C) No.1497 of 2015** ## **-: 11 :-** review. 12. The question as to whether the court has power to extend the time beyond the period mentioned in Section 4A of the Act has been considered by a Division Bench of this Court in **Shajahan v. Kamala Narayanan** (supra) and held that court has got power to extend time for payment of balance court fee of 9/10 beyond the period of 30 days if sufficient reason is given. In this case even in the review petition, reason stated was that date was wrongly taken for remitting the balance court fee and that was the reason for non-payment of balance court fee within time. So in such circumstances the order passed by the court below dismissing the application to review the judgment is unsustainable in law and the same is liable to be **O.P (C) No.1497 of 2015** ## **-: 12 :-** set aside. In the result, the petition is allowed. Exhibit P8 order in I.A. Nos.4414 and 4415 of 2014 dismissing the applications to review the judgment and delay condonation petition is set aside and the suit is restored to file. Petitioners are given three weeks' time from today to remit the balance court fee payable in the suit. If the balance court fee is not paid as directed above, then the order rejecting the suit for non-payment of balance court fee will revive. If balance court fee is paid, within the time granted by this Court, the court below shall restore the suit and receive balance court paid and dispose of the suit as well as the counter claim as expeditiously as possible, at any rate, before the court closes for Christmas **O.P (C) No.1497 of 2015** ## **-: 13 :-** Holidays. Registry is directed to communicate copy of this judgment to the court below immediately by fax. Sd/- **K.RAMAKRISHNAN, JUDGE.** VSV **/true copy/** **O.P (C) No.1497 of 2015** **-: 14 :-**