IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 WP(C).No. 23589 of 2009(O) ---------------------------------------- OS.381/2008 of PRINCIPAL SUB COURT,PARAVUR .................... PETITIONER(S): ----------------------- 1. THEKKKUDIYIL KURIAKOSE THOMAS,AGED 40, S/O.KURIAKOSE.T.J,THEKKEKUDIYIL HOUSE,ALATTUCHIRA, KODANAD VILLAGE,KUNNALTHUNADU,ERNAKULAM DISTRICT. 2. RILBY DEVASSY VELIATH,AGED 37, W/O.THEKKEKUDIYIL KURIAKOSE THOMAS,THEKKEKUDIYIL HOUSE,ALATTUCHIRA,KODANAD VILLAGE,KUNNATHUNADU PERUMBAVOOR,ERNAKULAM DIST.(REP;BY THEIR POWER HOLDER JULIUS.V.D,AGED 42,S/O.V.J.DEVASSY VELIATH HOUSE,KORATTY VILLAGE,MUKUNDAPURAM TALUK,THRISSUR. BY ADV. MR.BEPIN VIJAYAN RESPONDENT(S): ------------------------- 1. MR.POLY K.AYYAPMPILLY, S/O.LATE A.P.KURIAN,AGED 42 YEARS,PROPRIETOR,PEN PROPERTIES,AYYAMPILLY HOUSE,THADIKKADAVU,EAST VELIYATHUNADU.P.O,ALUVA-683108. 2. M/S.PEN PROPERTIES 7 BUILDERS PVT.LTD, HILL ROAD,ALUVA-683101,REP.BY ITS MANAGING DIRECTOR,SRI.POLY K.AYYAMPILLY. R1 & R2 BY ADVS.MR.ANIL XAVIER, MR.M.SHAHEED AHMAD, MR.M.RISHIKESH SHENOY, SMT.K.INDU (POURNAMI). THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO. 23589/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. NO.381/08 OF SUB COURT, N. PARUR. P2:- COPY OF THE WRITTEN STATEMENT IN OS. NO.381/08 OF SUB COUR, N.PARUR. P3:- COPY OF THE IA. NO.1965/09 IN OS. 381/08 FILED BY THE PETITIONER FOR AMDENDMENT. P4:- COPIES OF JUDICIAL COURT FEE PAPERS PRODUCED BY THE PETITIONER AS BALANCE COURT FEE IN OS. 381/08. P5:- COPY OF ORDER DTD. 1.7.09 ISSUED BY THE HONOURABLE PRINCIPAL SUBORDINATE JUDGES COURT, NORTH PARUR. TRUE COPY P.A.TO JUDGE tss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.23589 OF 2009 -------------------------- Dated this the 7th day of October 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) To call for the records of O.S No.381/2008 on the file of Principal Subordinate Judges Court, North Paravur, to examine the same and set aside the order passed by the learned Principal Subordinate Judge, North Paravur rejecting Ext.P1 plaint submitted by the petitioners. ii) To direct the learned Principal Subordinate Judge, North Paravur to accept Ext.P4 balance court fee from the petitioners in O.S No.383 of 2008 within a time frame to be fixed by this Hon'ble Court and getting the signature of the officer concerned from the District Stamp Depot, Ernakulam and to proceed further in the matter in accordance with law. W.P.(C).No.23589 OF 2009 Page numbers iii) To grant such other further relief to the petitioners as this Hon'ble Court deems just and necessary under the facts and circumstances of the case. 2. Petitioners are the plaintiffs in O.S No.381 of 2008 on the file of the Principal Sub Court, North Paravur. Suit originally filed was one for specific performance of an agreement of sale which was later amended for recovery of money. The defendants entered appearance through power of attorney and filed a written statement. However, the deed of power of attorney was not produced despite several adjournments provided by the court. The court in view of the non production of the power of attorney passed an order declaring the defendant exparte on 05/06/2009. Plaintiffs were thereupon directed to pay the balance court fee on the suit claim. The case was adjourned for such payment to 22/06/2009. On the request made by the plaintiffs, time for payment of the balance court W.P.(C).No.23589 OF 2009 Page numbers fee was extended. Plaintiff produced the required stamp paper towards the balance court fee. The court noticing that the stamp papers produced are defective as the treasury officer has not inscribed his initials on the stamp papers instructed the plaintiffs to rectify the defects and reproduce the stamp papers. But the very next day the suit was dismissed vide Ext.P5 order for the reason that the balance court fee was not paid and there was no representation for the plaintiffs. Challenge in the writ petition is against Ext.P5 order invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. Notice being given, respondents have entered appearance through power of attorney. I heard the counsel on both sides. Having regard to the submissions made and taking note of the facts and circumstances presented, I find Ext.P5 order passed by the court below after production of the stamp paper towards the balance court fee payable W.P.(C).No.23589 OF 2009 Page numbers was not proper and correct. Ext.P4 series are the copies of the stamp papers produced by the plaintiffs which on the reverse side bear the seal and date of the court as to its production on 29/06/2009. So when there was such production of the balance court fee by way of stamps, even if there was some defect as to the noninscribing of the initials of the treasury officer, sufficient opportunity should have been given to the petitioners/ plaintiffs to cure that defect. Setting aside Ext.P5 order, I direct the court below to restore the suit on its file and then extend an opportunity to the petitioners/ plaintiffs to produce the stamp papers after curing the defects within two weeks from the date of restoring the suit. Subject to the above directions, the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// vdv P.A TO JUDGE