IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 24TH JUNE 2010 / 3RD ASHADHA 1932 WP(C).NO. 17860 OF 2010(O) ---------------------------------------- OS.979/2008 OF PRINCIPAL SUB COURT,KOLLAM .................... PETITIONER(S): ----------------------- R.RAMANAN, S/O.RAJAN, ELANGATHUKIZHAKKATHIL, MANAYILKULANGARA CHERRY, KOLLAM. BY ADV. SRI.B.MOHANLAL RESPONDENT(S): ------------------------- P.L.PRASANNA, D/O.LEKSHMIKUTTY PADANAYIL, SAKTHIKULANGARA, KOLLAM, PRESENTLY RESIDING AT SREE PARVATHY, SAKTHI NAGAR-187, SAKTHIKULANGARA P.O., KOLLAM. ADV. SRI.V.V.RAJA FOR R1 SRI.R.RANJITH FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.979 OF 2008 OF THE PRINCIPAL SUB COURT, KOLLAM. EXHIBIT P2 TRUE COPY OF I.A. NO.4132 OF 2008 IN O.S. NO.979 OF 2008, OF DO. DO. EXHIBIT P3 TRUE COY OF THE ORDER IN I.A. NO.4132 OF 2008 IN O.S. NO.979 OF 2008, OF DO. DO DATED 16.9.2009. EXHIBIT P4 TRUE COPY OF THE ORDER IN O.S. NO.979 OF 2008 OF DO. DO. DATED 25.5.2010. EXHIBIT P5 TRUE COPY OF I.A. NO.1666 OF 2010 IN O.S. NO.979 OF 2008 OF DO. DO. EXHIBIT P6 TRUE COPY OF THE ORDER IN I.A. NO.1966 OF 2010 IN O.S. NO.979 OF 2008 OF DO. DO. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.17860 of 2010 ==================================== Dated this the 24th day of June, 2010 J U D G M E N T Order passed by learned Principal Sub Judge, Kollam refusing to review an order rejecting the plaint for non-payment of balance court fee is under challenge in this Writ Petition. Petitioner-plaintiff claimed to have entered into an agreement with respondent-defendant for purchase of property belonging to the latter for Rs.46,00,000/- and claimed to have paid Rs.7,00,000/- by way of advance to the respondent. According to the petitioner a further sum of Rs.1,50,000/- also was paid to the respondent. Since respondent did not perform her part of the contract petitioner filed O.S. No.979 of 2008 for return of advance money with interest. Respondent disputed claim of petitioner. After issues were framed the case was posted for payment of balance court fee on 25.05.2010. Balance court fee was not paid on that day. There was also no representation for petitioner. Learned Sub Judge rejected the plaint for the said reasons. Petitioner filed I.A. No.1666 of 2010 for review of the order rejecting plaint. In the W.P(C) No.17860 of 2010 -: 2 :- affidavit in support of that application petitioner stated that since clerk of the counsel concerned wrongly noted posting date as 25.06.2010 instead of 25.05.2010 there happened to be no representation in court on 25.05.2010 and balance court fee was not paid on that day. Application was opposed by the respondent. Learned Principal Sub Judge held that ground stated is that the Advocate clerk had mistakenly noted the posting date as 25.06.2010 instead of 25.05.2010, it is a usual ground now being taken in almost all cases of similar nature, there is no error apparent on the face of order to review it and dismissed the application. That order is under challenge in this Writ Petition. Learned counsel for petitioner contended that sufficient grounds were made out to review the order rejecting plaint on 25.05.2010. But learned Sub Judge on a generalised view that grounds stated are as seen taken in other cases also dismissed the application for review. Learned counsel states that this is a case where a claim is made for recovery of Rs.8,50,000/- with interest and costs and that on account of a mistake committed by the clerk of counsel concerned plaint is rejected and that has benefited the respondent who received substantial amount from petitioner. Learned counsel for respondent contended that no W.P(C) No.17860 of 2010 -: 3 :- sufficient ground for review as contemplated in Order XLVII Rule 1 of the Code of Civil Procedure (for short, “the Code”) has been made out and hence dismissal of I.A.No.1666 of 2010 does not call for interference. 2. The question is whether petitioner has made out sufficient grounds to review the order dated 25.05.2010 rejecting plaint for non-payment of balance court fee. As I stated above petitioner explained that clerk of his counsel mistook the date of posting of the case as 25.06.2010 instead of 25.05.2010 and hence there happened to be no representation in court and non- payment of balance court fee on 25.05.2010. It is not as if such mistakes cannot occur while dealing with so many cases. I do not also find reason to think that reason stated is untrue. I am also not inclined to think that petitioner who made a claim for Rs.8,50,000/- with interest and costs and paid one-tenth of the court fee (Rs.10,480/-) would purposely remain absent on the relevant day, would not pay the balance court fee and ensure that his case is rejected. I am persuaded to accept the explanation given by petitioner for what happened on 25.05.2010. 3. Then the next question is whether the ground stated is sufficient to order review under Order XLVII Rule 1 of the W.P(C) No.17860 of 2010 -: 4 :- Code. May be there is no error apparent on the face of the order rejecting plaint. But that provision also provides other grounds for review. Apart from the enumerated grounds stated, existence of “any other sufficient reason” also affords sufficient ground for review. No doubt the expression “any other sufficient reason” has to be read ejusdem generis following the enumerated grounds stated, i.e., error apparent on the face of record or discovery of a new and important matter or evidence. Here, petitioner was under the impression that his case was posted on 25.06.2010 but it was actually posted on 25.05.2010 and disposed of on that day. That I believe is sufficient to bring the matter within the mischief of Order XLVII Rule 1 of the Code. 4. Learned Sub Judge has not considered whether explanation given by petitioner could be accepted or not. Instead on a generalised view that in almost all cases such explanations are put up, the explanation offered by petitioner was rejected which I believe was not justified. Having heard counsel on both sides I am satisfied that dismissal of I.A.No.1666 of 2010 is not justified and it is liable to be set aside. Resultantly, this Writ Petition is allowed. Exhibit P5, order dismissing I.A.No.1666 of 2010 is set aside and that application W.P(C) No.17860 of 2010 -: 5 :- is allowed. Petitioner is granted a month' s time from this day to pay the balance court fee in the trial court. Parties shall appear in the trial court on 22.07.2010. THOMAS P. JOSEPH, JUDGE. vsv