IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 WP(C).No. 18635 of 2010(O) -------------------------- I.A.No.7612 OF 2009 BEFORE THE 1st ADDITIONAL DIST. COURT, ERNAKULAM PETITIONERS: --------------- 1. REV.FR.P.M.KURIAKOSE, S/O. MATHEW, MULAMATTATHIL HOUSE, MANEED VILLAGE, MUVATTUPUZHA TALUK. 2. SOJAN P.ABRAHAM, S/O. ABRAHAM, PUNCHILAYIL HOUSE, KAROOR, MANEED VILLAGE, MUVATTUPUZHA TALUK. BY ADV. SRI.N.SUKUMARAN SRI.S.SHYAM SRI.BOBBYMATHEW KOOTHATTUKULAM RESPONDENTS: --------------- 1. K.K.JOHN, S/O. KURIAKOSE, KAYYALAPARAMBIL HOUSE, MEMUGHAM, MANEED VILLAGE, MUVATTUPUZHA TALUK, PIN-682 308. 2. E.M.SABU, S/O. MATHAI, ERIKKAMATTATHIL HOUSE, NECHOOR, -DO- -DO-, PIN-686 666. 3. P.P.GEORGE, S/O. PAILY, PALAMKANNAYIL HOUSE, -DO- -DO-, PIN-686 664. 4. BOSE PAULOSE, S/O. PAULOSE, PUNCHILAYIL HOUSE, KAROOR, MANEED VILLAGE, MUVATTUPUZHA TALUK, PIN-682 308. 5. ST.THOMAS CHURCH, NECHOOR, MANEED VILLAGE, MUVATTUPUZHA TALUK, REPRESENTED BY ITS VICAR REV.FR.JOSEPH MANKIDY, PIN-686 664. 6. REV.FR.JOSEPH MANKIDY, MANKIDIYIL HOUSE, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, PIN-686 664. 7. RAJU JOHN, S/O. JOHN, NADUVILEDATHU PUTHENPURAYIL (VETTIKUZHIYIL HOUSE), EZHAKKARANADU, MANEED VILLAGE, MUVATTUPUZHA TALUK, PIN-682 308. 8. ULAHANNAN, S/O. MAANI, VADAKKEKUNNUMMEL, NECHOOR, MANEED VILLAGE, MUVATTUPUZHA TALUK, PIN-686 664. 9. SIMON T.GEORGE, S/O. GEORGE, KILIMANGALAM HOUSE, -DO- -DO-, PIN-686 664. 10. N.V.KURIAKOSE @ VETTIKUZHI JOY, S/O. PATHROSE, NADUVILEDATHU PUTHENPURAYIL, EZHAKKARANADU, -DO- -DO-, PIN-682 308. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.18635 of 2010 --------------------------------------- Dated this 16th day of June, 2010 JUDGMENT Respondents in I.A.No.7612 of 2009 of the court of learned Additional District Judge-I, Ernakulam are the petitioners before me challenging the order returning an application for representation for curing defects. That was an application preferred by respondents seeking leave under Section 92(1) of the Code of Civil Procedure (for short, “the Code”) to institute the suit. That application was filed in the form of an interlocutory application as if it is filed in a pending suit. Petitioners resisted the application on various grounds including that the application ought to have been filed as original petition as stated in Rule 56 of the Civil Rules of Practice (for short. “the Rules”) and paying court fee under Schedule II Article 11(l(2)) of the Kerala Court Fees and Suits Valuation Act. Learned Additional District Judge upheld that contention and returned the application for curing the defects. That is under challenge in this writ petition. Learned counsel for petitioners contend that Rule 32 of the Rules relied on by learned Additional District Judge has no application since defect is not of the nature which can be corrected by amendment as stated in Rule W.P.C.No.18635 of 2010 : 2 : 32 of the Rules and hence proper course was to dismiss the application as not maintainable or, for the respondents to seek withdrawal of the application with liberty to file sufficient petition. 2. Learned Additional District Judge has upheld the contention of petitioners as to the form and manner in which the application for leave ought to have been filed under Section 92(1) of the Code. It is also stated by learned Additional District Judge that the application required court fee as above stated. But according to learned Additional District Judge the defect is curable and hence it is returned under Rule 32 of the Rules. That provision says, “any plaint, petition, memorandum of appeal or other proceedings which is sufficiently stamped or undervalued or which requires any amendment to conform with the procedure or practice of the court shall be returned for being represented within a period of not exceeding 15 days of the order, after curing the defects; or the pleader or the party may be required to cure the defects within a period exceeding 15 days of the order”. Assuming that petition is defective in the sense that it is not in the form of original petition but filed as an interlocutory application as W.P.C.No.18635 of 2010 : 3 : if filed in a pending suit and there is no payment of proper court fee or necessary particulars are not stated in the application, it is not as if those defects are not curable by amendment. In that view of the matter I do not find reason to interfere with the order of learned Additional District Judge returning the application for curing defects. That order has been passed in accordance with Rule 32 of the Rules. No interference is warranted. The writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-