IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 19666 of 2010(O) 1. M.ABDUL MUTHALIF, AGED 60 YEARS, ... Petitioner Vs 1. STATE OF KERALA,REPRESENTED BY THE ... Respondent 2. THE CHIEF ENGINEER, PUBLIC WORKS 3. THE SUPERINTENDING ENGINEER, NATIONAL 4. THE EXECUTIVE ENGINEERING, PWD BH 5. THE ASSISTANT EXECUTIVE ENGINEER, PWD 6. THE ASSISTANT ENGINEER, PWD NH SECTION, For Petitioner :SRI.H.B.SHENOY For Respondent : No Appearance The Hon'ble MR. Justice THOMAS P.JOSEPH Dated :25/06/2010 O R D E R THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) Nos.19665 & 19666 of 2010 -------------------------------------- Dated this the 25th day of June, 2010. JUDGMENT
These Writ Petitions are filed in challenge of separate orders passed by
learned Principal Sub Judge, Kollam in I.A.Nos.1047 of 2010 and 1046 of 2010
in O.S.Nos.338 of 2009 and 339 of 2009 respectively of that court. Petitioner
filed the said suits for realization of money under two work contracts.
Respondents did appear in court but did not file written statements and hence
were set exparte on 16.01.2010. Cases were posted to 16.02.2010 for payment
of balance court fee. In the meantime respondents filed I.A.Nos.531 of 2010 and
532 of 2010 to set aside the exparte orders against them. On 16.02.2010
petitioner sought time for payment of balance court fee. Learned Sub Judge
dismissed I.A.Nos.531 of 2010 and 532 of 2010 the same day and for the reason
of non-payment of balance court fee the plaints were rejected. Petitioner with
the hope that he will be able to resurrect the cases filed I.A.Nos.1047 of 2010
and 1046 of 2010 respectively stating reasons for non-payment of balance court
fee on or before 16.02.2010. Learned Sub Judge passed the following order on
the said applications
“There is no apparent error on the face of the
order to review it. Hence dismissed.”
Learned counsel for petitioner contends that petitioner had in the affidavits in
support of applications stated circumstances under which he could not pay
WP(C) Nos.19665 & 19666/2010
balance court fee before 16.02.2010 but without application of mind learned Sub
Judge has dismissed the said applications. For the purpose of disposal of these
Writ Petitions I have heard learned Government Pleader who took notice for
respondents though, as revealed from the records respondents have been set
exparte by the learned Sub Judge and that order remain in force.
2. Question is whether learned Sub Judge was correct in dismissing
the applications for review. As I stated, those applications are dismissed by a
non-speaking order stating that there is no error apparent on the face of order.
It is not clear whether the learned Sub Judge has adverted to the reasons stated
by petitioner in paragraph No.3 of the affidavits in support of the applications for
review. I have gone through the affidavits of petitioner where reason is stated.
According to the petitioner, following the exparte order against the respondent on
16.02.2010 the case was posted on 16.02.2010 for payment of balance court
fee but before that day learned Government Pleader appearing for respondent
in the court below served on counsel for petitioner a copy of application to set
aside the exparte order and petitioner, under the impression that the said
application is coming up for hearing on 16.02.2010 did not raise the balance
court fee. During the roll call on 16.02.2010 it was revealed that applications
filed by the respondent were held up due to some defect. Thereon counsel for
petitioner requested learned Sub Judge to grant some time for payment of
balance court fee. Learned Sub Judge kept the matter aside probably awaiting
arrival of applications filed by the respondent after curing defects. During the
afternoon session counsel for petitioner got information that applications
WP(C) Nos.19665 & 19666/2010
preferred by the respondent were dismissed and the plaints also were rejected.
Hence, petitioner sought for review of the order.
3. No doubt, there may not be any error apparent on the face of
record so far as the order rejecting plaints is concerned. Order 47 Rule 1 of the
Code of Civil Procedure (for short, “the Code”) provides for review on other
grounds also. Ofcourse each case should be decided on the facts of that case.
When a plaint is rejected for non-payment of balance court fee, an application for
review is permissible. Going through the affidavit of petitioner I am satisfied that
petitioner has shown sufficient reason for non-payment of balance court fee on
the day specified. I do not find reason to think that having claimed a huge
amount from the respondent on the strength of work contract admittedly
entrusted to the petitioner and his having paid 1/10th of the court fee payable at
the time of filing of the plaint in both the cases, he would refuse to pay the
balance court fee within the time specified and invite a dismissal of the suits by
which he would not stand to gain. These aspects were not considered by the
leaned Sub Judge. Having regard to the facts and circumstances placed before
me I am inclined to hold that learned Sub Judge was not justified in dismissing
the applications for review. Petitioners ought to have been given an
opportunity to resurrect the plaints which were rejected for non-payment of
balance court fee.
Resultantly these Writ Petitions are allowed setting aside the orders on
I.A.No.1047 in O.S.No.338 of 2009 and I.A.No.1046 of 2010 in O.S.No.339 of
2009 passed by learned Principal Sub Judge, Kollam. Those applications are
WP(C) Nos.19665 & 19666/2010
allowed. Petitioner in both the cases will get three weeks time from this day for
payment of balance court fee on the plaint in both the cases. Petitioner shall
appear in the court below on 16.07.2010.