IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 29985 of 2007(T)
1. PRAKASAN, S/O. LATE VELAYUDHAN,
... Petitioner
2. RAVI, S/O. LATE VELAYUDHAN,
Vs
1. SATHYABHAMA, W/O. VELAYUDHAN,
... Respondent
2. SOUMYA, AGED 19 YEARS,
3. SANTHOSH, AGED 17 YEARS (MINOR),
4. VALSALA, D/O. VELAYUDHAN,
5. RAMAN, S/O. AYYAPPAN,
6. UNNI, S/O. KATHI,
For Petitioner :SRI.JOHN JOSEPH(ROY)
For Respondent :SRI.JACOB SEBASTIAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :24/02/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C)No.29985 of 2007
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Dated this the 24rd day of February, 2010
JUDGMENT
Petitioners are the appellants in
A.S.No.217/03 on the file of the District
Court, Palakkad. The appeal was rejected
by the court below on default of the
petitioners/appellants to pay the balance
court fee within time. Petitioners moved
an application to review the order
rejecting the appeal, seeking condonation
of delay in remitting the balance court
fee. The learned District Judge dismissed
that review petition by Ext.P2 order.
Propriety and correctness of Ext.P2 order
is challenged in the writ petition invoking
the supervisory jurisdiction vested with
this court under Article 227 of the
Constitution of India.
2. I heard the counsel on both
sides.
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3. The dismissal of the review
petition by going into the merits of the
appeal as done by the court was not proper
and correct is the submission of the
learned counsel for the petitioners. It is
further canvassed that the petitioners must
be given an opportunity to have a disposal
of the appeal on merits, setting aside the
order of the court below and restoring the
appeal accepting the balance court fee
payable on the appeal tendered by them.
4. Perusing the impugned order, it
is seen, the appeal was preferred against
the dismissal of a suit filed by the
petitioners as plaintiffs to set aside a
final decree passed in an earlier suit.
The appeal was preferred as early as in
2003, paying 1/3rd of the court fee payable
on the memorandum of appeal. Even after two
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years, the balance court fee payable was
not tendered by the appellants. The order
of the court below would show, noticing
non-payment of the balance court fee on
3.8.2005 the appeal was posted for payment
of such fee on 14.10.2005. Since the court
fee was not paid on that date, the appeal
was rejected. The petitioners/appellants
then moved the petition to review the above
order rejecting the appeal for non-payment
of the balance court fee. The appellate
court has found that the cause shown for
the non-payment of the balance court fee
was a lame excuse. The appellants have
contended that the second appellant was
indisposed and first appellant was away at
Chennai during the period when the appeal
was pending before the court. It was also
noticed that the appeal had been preferred
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against the dismissal of a suit wherein the
appellants as plaintiffs have sought for
setting aside a final decree in the
previous suit stating that decree had been
passed by collusion and fraud and therefore
not binding on them. The appellate court
noticed that the suit was dismissed on
merits. I find that the learned District
Judge has applied his mind to the facts and
circumstances presented while exercising
his discretion, whether the appeal which
had been dismissed for default for non-
payment of the court fee has to be restored
to file or not. At any rate, there is no
jurisdictional error or infirmity in the
order passed by the learned District Judge.
In exercise of the visitorial jurisdiction
it is not proper and appropriate for this
court in the given facts fo the case to
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interfere with the order of the inferior
court.
Writ petition is dismissed.
Sd/-
(S.S.SATHEESACHANDRAN)
JUDGE
sk/-
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