JUDGMENT
K. Padmanabhan Nair, J.
1. The plaintiff in a suit for specific performance is the revision petitioner. The Civil Revision Petition is filed against an order passed by the learned Sub Judge rejecting an application filed by the revision petitioner for setting aside the order passed by the court below on 24.3.1999 rejecting the plaint for non payment of balance court fee and restore the suit to file after condoning the delay in filing the petition. The short facts for disposal of the Revision Petition is as follows.
2. The revision petitioner filed a suit for specific performance alleging that the respondent had entered into an agreement for sale of suit property to him for a total consideration of Rs. 7,40,000/- and received an amount of Rs.4,94,000/- as part of sale consideration on different occasions. It is further averred that the defendant/respondent had committed breach of the agreement and is not executing the sale deed after receiving the balance of sale consideration. The respondent appeared and contested the suit. He filed the written statement and thereafter the case was posted for settling issues. The total court fee payable was Rs.56,050/-. The petitioner filed the suit paying an amount of Rs. 5,605/- as the 1/10th of the total court fee. After settling the issues, the learned Sub Judge directed the revision petitioner to pay the balance court fee within 15 days and posted the case to 24.3.1999. On that day there was no representation. The plaintiff and the counsel were absent. The balance court fee was not paid. Hence the learned Sub Judge rejected the plaint.
3. The revision petitioner filed I.A. No. 2533/1999 for setting aside the order passed on 24.3.1999 rejecting the plaint and to restore the suit to file and also to receive the balance court fee. He also filed I.A. No. 2534/1999 for condoning the delay in filing the petition to set aside the order passed on 24.3.1999.
4. In the affidavit in support of the petition to set aside the order, it is averred that due to an inadvertent mistake in noting the posting date, the balance court fee could not be paid and the plaintiff and his counsel were absent in court on 24.3.1999. It is averred that on getting information about trie rejection of the plaint, the revision petitioner filed application for a certified copy of the order with an intention to file an appeal before this Court and the certified copy was obtained on 30.6.1999. It is further averred that after obtaining the certified copy, the records were taken to the advocate at Ernakulam and on consultation the lawyer advised that an appeal will not lie in the matter and the proper remedy is to file a petition before the trial court itself. It is also averred that such an advise was given to the revision petitioner on 9.8.1999 and on getting that advise the petitions for setting aside the order was filed. The balance court fee was also remitted. In the affidavit filed along with the petition to condone the delay also the grounds stated were the same. In the objection the averments in the affidavit filed by the revision petitioner were denied. It was contended that the plaintiff was directed to remit the balance court fee within a time limit but the same was not paid. The plaintiff and his counsel were absent on the date on which the case was posted. It is further averred that the averments that the petitioner was given legal advise that no appeal will lie is not correct. It is also contended that the petition for setting aside the order was filed after the expiry of 130 days that itself indicates that there was laches on the part of the petitioner. In the objection filed in the delay petition also it is stated that the reasons stated in the affidavit are not true and correct and the delay cannot be condoned. The petitioner gave evidence as PW. 1. The learned Sub Judge found that the delay was not properly explained and that there is inordinate delay in depositing the balance court fee. Hence rejected both the applications. This Civil Revision Petition is filed challenging those orders.
5. The revision petitioner/plaintiff entered into an agreement for sale of the suit properties for a total consideration of Rs.7,40,000/- on 24.11.1994. The time fixed was four months and that period expired on 24.3.1995. On the date of agreement an amount of Rs. 1,10,000/- was paid as advance. Subsequently further amounts were paid. The revision petitioner had paid an amount of Rs.4,94,000/- towards the sale consideration. The last payment i.e. Rs. 1,50,000/- was effected on 30th May 1995. The last payment was effected after the expiry of the original time fixed. The suit was filed on 21.3.1998. The respondent appeared on 25.3.1998 and sought for time for filing written statement. The written statement was filed on 8.10.1998 and the case was posted to 9.1.1999. On 9.11.1999 the issues were settled. The plaintiff was directed to pay the balance court fee within 15 days and the case was posted for steps to 24.3.1999. On 24.3.1999 the plaintiff and the counsel were absent, balance court fee was not paid, there was no representation, the plaint was rejected.
6. The learned counsel appearing for the respondent contended that the order passed by the trial court rejecting the plaint is a decree as defined under Section 2(2) of the Civil Procedure Code and when a plaint is rejected under Order VII Rule 11, that is not a dismissal of the suit under Order IX Rule 7 or 8 and hence no petition under Order IX Rule 9 for restoration of the plaint is maintainable. In Mable v. Dalores (2001 (2) KLT 613) a Division Bench of this Court has found that when the plaint is rejected under Order VII Rule 11the plaintiff cannot invoke the jurisdiction of the Court under Section 151 CPC. It was further held that rejection of a plaint in terms of an order under Order VII Rule 11 is a decree and the party has a substantive right of appeal. The learned counsel appearing for the revision petitioner has argued that in this case the order passed by the court below is not one under Order VII Rule 11. He pointed out that the court below recorded that the plaintiff was absent and there was no representation for the plaintiff. So the dismissal is essentially one under Order IX Rule 7. It is argued that the principle laid down in Mable’s case has no application to the facts of this case and the petition under Section 151 is perfectly maintainable. The learned counsel for the petitioner relied on the decision reported in Ratan singh v. Vijaysingh (2001 (1) SCC 469) to argue that the order passed by the trial court rejecting plaint will not amount to a decree. It was held as follows:
“In order that a decision of a court should become a decree there must be an adjudication in a suit and such adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit and such determination must be of a conclusive nature. If those parameters are to be applied then rejection of application for condonation of delay will not amount to a decree. Consequently, dismissal of an appeal as time-barred is also not a decree.”
In view of the definition of decree contained in Section 2(2) of the Code the principle laid down in Ratan Singh’s case (supra) can have no application to the facts of the case. The learned counsel for the petitioner also relied on the decisions reported in Prakash Chander v. Janaki Manchandra (AIR 1987 SC 42) and Sankara Pilial v. Balakrishnan Nair (1988 (1) KLT 339) to argue that since the plaint was rejected due to the non appearance of the plaintiff the provisions of Order IX R.9 is applicable. In view of the principle laid down in Mable’s case (supra) the dictum laid down in Prakash Chander’s case and Sankara Pillai’s case (supra) can have no application to the facts of this case.
7. It is a well settled position of law when there is specific provision under which a party can approach the court, the court cannot invoke the inherent powers conferred on it. So the order cannot be set aside invoking the inherent powers conferred under Section 151of Civil Procedure Code. In Padam Sen and Anr. v. The State of Uttar Pradesh (AIR 1961SC 218) it was held that when there is specific provision the inherent power is not to be exercised. In Velayudhan Nair v. Kerala K. Y. Kuries Pvt. Ltd. (1987 (2) KLT 449) this Court also took the same view.
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.
9. The counsel for the respondent also relied on a decision reported in V.S. Palanichamy Chettiar Firm v. C. Alagappan (1999 (4) SCC 702). It is argued that since the time fixed for specific performance is over and if the party wants to restore the plaint they will get an opportunity to deposit the money long after the limitation of the period prescribed. In this case there is no request for time to deposit the balance of sale consideration. The only question arising for consideration in this case is whether the order passed by the court rejecting the plaint for non-payment of court fee is reviewed or not. The suit is filed within the period prescribed by law. Hence there is absolutely no merit in the contentions raised by the respondent that in view of the principles laid down in Palanichamy’s case (supra) the Civil Revision Petition is only to be dismissed.
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.
11. In this connection the prayer in the petition is also very relevant. The prayer is, “to set aside the order dated 24.3.1999 rejecting the plaint and to restore the suit to file and to receive the balance court fee produced along with the petition and to pass such other appropriate orders as are just and necessary in the circumstances of the case.” The first prayer in the petition is to set aside the order. It is true that the word ‘review’ is not stated as such. But the petition ought to have been treated as a review petition though the section quoted is only Section 151of the CPC. Even though it is not possible to review an order in exercise of the inherent powers that power could have been exercised to treat that petition as one filed under O.XLVII R.I CPC. It is also well settled position of law that quoting of wrong provision of law is not fatal to the proceedings. There is also a prayer to receive the court fee. So substantially the prayer was to review the order passed on 24.3.1999 rejecting the plaint and take back the plaint to file after enlarging the time fixed for payment of the balance court fee. It is to be noted that on 24.3.1999 the case was posted for steps. So there is no necessity for plaintiff or his counsel to be present on 24.3.1999. It is to be noted that the plaint was rejected on the ground of the non-appearance of the plaintiff also. So petition for review is maintainable. So the court below ought to have treated I. A. No. 2533/1999 as a petition filed under Section 114 and Order XLVII Rule 1of CPC to review the order passed on 24.3.1999. The only objection that can be raised is that the petition for review, the petitioner is liable to pay 1/2 of the court fee payable on the suit and since that court fee was not paid the petition cannot be treated as petition for review. But it is well settled position of law that when the appeal filed against an order rejecting the plaint is allowed the court fee paid in appeal memorandum is to be refunded, in view of the provisions contained in Section 67 of the Kerala Court Fees Act. According to me since there is no adjudication of any of the claims in the suit and also in view of the provisions contained in Section 67 of the Court Fees Act, it is not necessary to be called upon the petitioner to pay one-half of the entire court fee. Further the question of court fee is a matter between the plaintiff and the court. Therefore, the respondent has no locus standi to insist that the court fee has to be levied in the petition and then refunded.
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.
13. The court below settled the issues on 9.11.1999 and posted the case to 24.3.1999 for steps. He was also directed to pay the court fee within 15 days. The plaint was rejected for the non-appearance of the plaintiff also. Since, on 24.3.1999 the case was posted for steps there was no need for the plaintiff to be present on that day. So the rejection of the plaint for the non-appearance of the plaintiff was wrong and liable to be reviewed. It is also averred that due to an inadvertent mistake or omission in noting the correct date of posting, the court fee could not be paid within the time fixed by the court below. I do not find any reason to disbelieve that statement. The provisions contained in Order VII are mainly procedural. In Salem Advocates’ Association, Tamil Nadu v. Union of India 2002 (3) KLT 920 (SC) = (2002 AIR SCW 4627) the Apex Court has held that the court should ordinarily give an opportunity for rectifying the defects. Since on 24.3.1999 it was not necessary for the plaintiff to be present in the court the court below ought to have granted another opportunity to the plaintiff to rectify the defect. In this particular case, along with the petition for setting aside the order of rejection of the plaint the petitioner had paid the entire balance court fee. The learned Sub Judge failed to note that the petitioner had paid an amount of Rs. 56,105/- the entire court fee due on the plaint along with the petition for review. Considering the entire facts and circumstances in the case, I am of the view that it is a fit case in which the learned Sub Judge ought to have reviewed the order passed by him on 24.3.1999 rejecting the plaint. So that order is also unsustainable and liable to be set aside. I do so.
In the result, this Civil Revision Petition is allowed. The orders passed by the court below dismissing I.A. Nos. 2533/1999 & 2534/1999 are hereby set aside. Both I.As. are allowed. Consequently the order passed by the court below on 24.3.1999 rejecting the plaint is reviewed. The time fixed for payment of balance court fee is enlarged and extended till 17.8.1999. The learned Sub Judge is directed to take back O.S. No. 77 of 1998 back to file and to dispose of the same afresh in accordance with law.