IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 21705 of 2007(H)
1. DEW MARY DEVASSY, AGED 27 YEARS,
... Petitioner
2. N.P.DEVASSY, AGED 61 YEARS, S/O.PAPPU,
3. PHILOMINA DEVASSY, 56 YEARS,
Vs
1. C.V.KURIAN, AGED 59 YEARS, S/O.VARKEY,
... Respondent
2. MARIAMMA, AGED 55 YEARS, W/O. THOMAS,
For Petitioner :SRI.K.S.BABU
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :16/07/2007
O R D E R
M.N.KRISHNAN, J.
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WP(C)No. 21705 OF 2007 H
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Dated this the 16th July, 2007.
JUDGMENT
This writ petition is filed seeking to set aside the
orders passed by the court below in the form of Exts.P5 and
P6. By Ext.P1 order dated 15.2.2007 as there was no
representation for the plaintiff and as the counsel for the
plaintiff was absent and as the balance court fee was not
paid the court rejected the plaint and posted the counter
claim on 12.3.2007. The petitioner filed Ext.P3
application whereby he has requested the court to restore
the plaint on the file of the court by reviewing the order
dated 15.2.2007. It is true that the proper method of
filing the application was to do it as contemplated under
Order XLVII of the Civil Procedure Code. But a reading of
the petition would show that the intention of the
petitioner was only to get the order rejecting the plaint
reviewed. But unfortunately wrong provisions of law had
been quoted and court fee to be paid for a review under
Order XLVII CPC has not been paid. But the intention to
get the order reviewed is very much there in the petition
and the prayer also shows that the plaintiff wants to get
the order dated 15.2.2007 reviewed so that he can pay the
court fee and proceed with the plaint. The learned Munsiff
WPC 21705/07 2
was right when he held that court fee has not been paid
and there is misquoting of the provisions in the petition.
But after all what is to be looked into is the substance
and I am satisfied that the very prayer is only for the
purpose of reviewing the order rejecting the plaint. If
there are defects which are curable it must be permitted to
be cured and as far as possible opportunity should be given
so that the plaint is not rejected on a technical ground of
non-payment of court fee when the plaintiff really wants to
pursue the matter. Therefore the orders under challenge
are set aside and the learned Munsiff is directed to
restore Ext.P3 application and give an opportunity to pay
the court fee for reviewing the order and then consider it
sympathetically and pass appropriate orders. Writ petition
is disposed of accordingly.
M.N.KRISHNAN
Judge
jj