IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH AUGUST 2011 / 25TH SRAVANA 1933 WP(C).NO. 21586 OF 2010(O) ------------------------------------------- OS.29/2007 OF I ADDL.SUB COURT,ERNAKULAM .................... PETITIONER(S): --------------------- K.R.SASIDHARAN NAIR, "SREYAS", TRRA 150, THAMARASSERY ROAD, PONITHURA PO, KOCHI-38. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P RESPONDENT(S): --------------------------- DR.P.S.PARAMESWARAN, SCIENTIST, C.O.D, NATIONAL INSTITUTE OF OCEANOGRAPHY, DONA PAULA-GOA:403 004. ADV. SRI.K.R.KURUP FOR R1 SRI.C.R.SYAMKUMAR FOR R1 SRI.K.J.ABRAHAM FOR R1 SRI.LAVARAJ M.G. FOR R1 SRI.JOSE KURIAN FOR R1 SRI.C.R.VINOD KUMAR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C) NO.21586 OF 2010 APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE JUDGMENT PASSED BY THE COURT BELOW. EXHIBIT P2 TRUE COPY OF THE AFFIDAVIT AND PETITION FILED BY THE PETITIONER ON 7.2.2008. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 24.6.2008 OF THE COURT BELOW. EXHIBIT P4 TRUE COPY OF THE MEDICAL CERTIFICATE. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== W.P(C) No.21586 of 2010 ==================================== Dated this the 16th day of August, 2011 J U D G M E N T Plaintiff in O.S. No.29 of 2007 of the court of learned First Additional Sub Judge, Ernakulam is the petitioner before me. That is a suit for money filed against the respondent. Issues were framed in the case on 04.09.2007. Petitioner was directed to pay balance court fee within 15 days. In the meantime the matter was referred to the Adalath for settlement. Case was taken up on 08.01.2008 and as balance court fee was not paid, the plaint was rejected under Order VII Rule 11(c) of the Code of Civil Procedure (for short, “the Code”). Petitioner filed I.A. No.1131 of 2008 purporting to be under Order IX Rule 4 of the Code seeking readmission of the plaint. On that application, learned Sub Judge directed petitioner to take steps and posted the application on 08.04.2008. That day, steps were not taken, nor were petitioner and counsel present. For the said reason I.A. No.1131 of 2008 was dismissed. Then came I.A. No.2840 of 2008 for restoring I.A. No.1131 of 2008. That application was dismissed as per Ext.P3, order dated 24.06.2009. On 09.07.2011 this Writ Petition was filed in challenge of Ext.P3, order. W.P(C) No.21586 of 2010 -: 2 :- 2. Learned counsel for petitioner submitted that along with I.A. No.1131 of 2008 petitioner had paid balance court fee and that on account of illness petitioner was not able to present in court on 08.04.2008 and take necessary steps. Learned counsel for respondent contended that the grounds stated for restoration of I.A. No.1131 of 2008 are not correct and at any rate the prayer for restoration made in the application was not permissible since remedy against rejection of plaint is either by way of review or appeal. 3. No doubt, I.A. No.1131 of 2008 is filed under Order IX Rule 4 of the Code. But the prayer is for readmission of the plaint. Question whether that could be construed as a review is a matter which the trial court has to decide bearing in mind that balance court fee has been paid along with I.A. No.1131 of 2008. Now I am concerned with the question whether I.A. No.1131 of 2008 could be restored to file. I.A. No.2840 of 2008 is filed within the time prescribed for filing application for restoration of I.A. No.1131 of 2008. Having regard to the fact that the claim is for money and the balance court fee has already been paid, I am inclined to think that request of petitioner can be allowed as sufficient cause for non-appearance in the court on 08.04.2008 is W.P(C) No.21586 of 2010 -: 3 :- made out. Resultantly, Writ Petition is allowed. Order on I.A. No.2840 of 2008 is set aside and that application is allowed. Consequently I.A. No.1131 of 2008 is restored to file. Learned First Additional Sub Judge, Ernakulam is directed to dispose of I.A. No.1131 of 2008 as provided under law. Parties are directed to appear in the court below on 19.09.2011. THOMAS P. JOSEPH, JUDGE. vsv