IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 WP(C).No. 21966 of 2010(O) -------------------------- IA 4169/2009 IN OS.333/2008 of PRINCIPAL SUB COURT,KOLLAM .................... PETITIONER(S): --------------- VENU, S/O.GOPALAN ACHARI, JAYACHANDRA VILASAOM, IVERKALA EAST P.O., KUNNATHOOR VILLAGE, KOLLAM. BY ADV. SRI.B.MOHANLAL SRI.C.SINOY RESPONDENT(S): --------------- RADHA, MUNDAPALACKAL VEEDU, NADUVILA MURI, IVERKALA PO, KUNNATHOOR VILLAGE, KOLLAM, PIN- 691 507. ADV. SRI.C.RAJENDRAN SMT.SREEVIDYA R.S. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.21966/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF PLAINT IN OS 333/2008 OF PRINCIPAL SUB COURT, KOLLAM. EXT.P2 TRUE COPY OF ORDER IN OS NO.333/2008 OF PRINCIPAL SUB COURT, KOLLAM. EXT.P3 TRUE COPY OF IA NO.4169/2009 IN OS 333/2008 OF PRINCIPAL SUB COURT, KOLLAM. EXT.P4 TRUE COPY OF ORDER IN IA NO.4169/2009 IN OS 333/2008 OF PRINCIPAL SUB COURT, KOLLAM DATED 8.12.2009 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.21966 OF 2010 -------------------------------------- Dated this the 29th day of July, 2010. JUDGMENT Plaintiff in O.S.No.333 of 2008 who is the petitioner in I.A.No.4169 of 2009 of the court of learned Principal Sub Judge, Kollam is the petitioner before me. He sued respondent for specific performance of an agreement for sale where consideration payable was Rs.2,24,000/- and claiming that of the said amount, he paid Rupees one lakh by way of advance to the respondent. Since respondent did not perform her part of the contract, petitioner instituted the suit as above stated paying 1/10th of the court fee payable. After issues were settled the case was posted for payment of balance court fee on 07.11.2009. That day petitioner and counsel were absent and hence the “suit was dismissed” vide Ext.P2, order. Petitioner filed I.A.No.4169 of 2009 (Ext.P3) seeking review of Ext.P2, order. But that application was dismissed vide Ext.P4, order stating “the ground stated appears to be a lame excuse. So petition is not entertainable. Hence rejected”. That order is under challenge. Learned counsel for petitioner contends that it was because of wrong noting of the date fixed for payment of balance court fee that there happened to be no representation on 07.11.2009. Learned counsel for respondent has contended that on the application for review half of court fee payable on the plaint is liable to be paid. It is also contended that there is no justifiable reason stated for absence of petitioner and counsel and non-payment of court fee on 07.11.2009 . WP(C) No.21966/2010 2 2. So far as the argument regarding payment of half of court fee on the application for review is concerned, that argument cannot be sustained in view of the decision of the Division Bench in Narayanan v. Ummer (2009 (3) KLT 543). 3. Next question is whether petitioner has shown sufficient cause for review. It is stated that the case stood posted for payment of balance court fee on 07.11.2009 but, clerk of counsel concerned noted the date as '17.11.2009' and thus there happened to be no representation and non-payment of court fee on 07.11.2009. That reason did not appeal to the learned Sub Judge who thought that ground stated is a lame excuse. 4. Having regard to the facts and circumstances of the case I do not find reason to think so. This is a case where petitioner sought specific performance of an agreement for sale where consideration fixed is Rs.2,24,000/- and accordingly he claimed to have paid Rupees one lakh by way of advance. It is not disputed that petitioner has paid 1/10th of the court fee payable on the plaint. There is no reason to think that in such a situation where substantial stake is involved, petitioner purposely avoided payment of balance court fee on 07.11.2009 and invited a rejection of plaint (as it should have been and not a dismissal of the suit). In that situation I am inclined to accept explanation offered by petitioner for absence and non-payment of balance court fee on 07.11.2009. I am persuaded to think that learned Sub Judge ought to have considered the relevant aspects and allowed the application rather than stating that ground stated “appears to be a lame excuse”. In the circumstances, order WP(C) No.21966/2010 3 under challenge cannot be sustained. Resultantly this Writ Petition is allowed in the following lines: i. Ext.P4, order is set aside and Ext.P3, application is allowed. ii. Petitioner shall pay balance court fee payable on the plaint within three weeks from this day. On such payment, learned Sub Judge shall re-admit the plaint which shall be deemed to have been rejected by the impugned order on 07.11.2007 and proceed as provided under law. In case balance court fee is not paid within the time aforesaid, Writ Petition will stand dismissed in confirmation of Ext.P4, order. THOMAS P.JOSEPH, Judge. cks