IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 WP(C).No. 22282 of 2005(C) -------------------------- AGAINST THE ORDER IN IA 985/2005 IN OS.343/2004 of MUNSIFF COURT, THALIPARAMBA .................... PETITIONER(S): --------------- KADUPPIL SCARIYA, S/O. YOHANNAN, RESIDING AT OTTATHOTTY, NEW NADUVIL AMSOM, NADUVIL DESOM, NADUVIL POST,TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.T.P.ELDHO RESPONDENT(S): --------------- KADUPPIL FRANCIS, S/O. YOHANNAN, RESIDING AT OTTATHOTTY, NEW NADUVIL AMSOM, NADUVIL DESOM, NADUVIL POST, TALIPARAMBA TALUK, KANNUR DISTRICT. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.C.NO.22282/05 PETITIONER'S EXHIBITS EXT.P1 TRUE COPY OF THE PLAINT IN O.S.NO.343/04 EXT.P2 TRUE COPY OF THE AFFIDAVI AND PETITION ALONG WITH THE ORDER DATED 2-9-04 IN THE I.A. EXT.P3 TRUE COPY OF THE AFFIDAVIT IN I.A.NO.947/05 EXT.P4 TRUE COPY OF THE REVIEW PETITION EXT.P5 TRUE COPY OF THE ORDER DATED 3-6-05 IN I.A.NO.985/05 IN O.S.NO.343/04 /True copy/ PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - W.P.(c).No. 22282 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of January , 2009 JUDGMENT The plaintiff in a suit for declaration of easement rights and consequential injunction is the petitioner in this writ petition under Article 227 of the Constitution. He challenges Ext.P5 order by which his application for review of an order rejecting the plaint for non- payment of balance court fee was dismissed. He also seeks a direction to allow Ext.P4 application after setting aside Ext.P5. 2. The ground which the petitioner has raised is that the case stood posted for remittance of balance court fee to 26/03/2005 and on that day itself, balance court fee had been actually remitted by the petitioner. But unfortunately, a representation in that regard could not be made before that court at the time when the case was called. Petitioner's counsel missed his bus and could reach the court only by 12:15 p.m. by which time the suit was already called and rejected for non-payment of balance court fee. It was to review such rejection that Ext.P4 application was filed. That application has been dismissed by WPC.No.22282/05 2 passing Ext.P5 order stating that no apparent error is seen in the records and that no sufficient reason is made out for review. 3. In view of the submission of the learned counsel for the petitioner that balance court fee was actually remitted on 26/03/2005, this court called for a report from the learned Munsiff who has forwarded a report dated 18/10/2005. The report will show that the petitioner's averment that on 26/03/2005 itself balance court fee was remitted and I.A.No.947/05 was filed for receiving the same is correct. Going by the definition clause in the Code, the rejection of a plaint is a decree and the proper remedy of the petitioner is to impugn the order rejecting the plaint by filing a regular appeal. But I feel in this case that it will not be just to adhere to technicalities. After all the petitioner had remitted the balance court fee on 26/03/2005 itself and he had also filed an application for reception of the same. I therefore, set aside Ext.P5 and allow Ext.P4. Learned Munsiff is directed to receive the balance court fee remitted by the petitioner after restoring the suit back to file. There will be a further direction that the learned Munsiff will expedite the trial and disposal of the suit. PIUS.C.KURIAKOSE JUDGE sv. WPC.No.22282/05 3 sv.