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. 23588 of 2009(O) ------------------------------------- OS.466/2008 of PRINCIPAL SUB COURT,PARAVUR .................... PETITIONER(S): ------------------------- THOMAS V.GEORGE,36 YEARS,S/O.V.T.GEORGE, VILAYIL PEACE COTTAGE,KARUVATTA,ADOOR P.O., PATHANAMTHITTA,REP. BY ITA P/A.HOLDER MINI P.ROY, W/O.ROY SAMUEL P.,FLAT NO.F CLASSIC APPARTMENT, BEHIND C.S.I.CHURCH,THAIVELIKKAKAM LANE, H.M.T.ROAD,KALAMASSERI. BY ADV. MR.BEPIN VIJAYAN RESPONDENT(S): ------------------------- 1. MR.POLY K.AYYAMPILLY, S/O.LATE A.P.KURIAN, AGED 42 YEARS, PROPRIETOR, PEN PROPERTIES, AYYAMPILLY HOUSE, THADIKKADAVU, EAST VELIYATHUNADU P.O., ALUVA-683 108. 2. M/S.PEN PROPERTIES & BUILDERS PVT.LTD., HILL ROAD, ALUVA-683 101, REP. BY ITS MANAGING DIRECTOR, SRI.POLY K.AYYAMPILLY. R1 3& 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.23588/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. NO.466/08 OF SUB COURT N.. PARUR. P2:- COPY OF THE IA.NO, 2135/09 IN OS. NO.466/08 OF SUB COURT, N. PARUR. P3:- COPY OF THE IA. NO.2135/09 IN OS. 466/08 FILED BY THE PETITIONER FOR ENLARGEMENT OF TIME TO PAY THE BALANCE COURT FEE. P4:- COPIES OF THE JUDICIAL COURT FEE PAPERS PURCHASED BY THE PETITIONER FOR PRODUCING AS BALANCE COURT FEE IN OS. 466/08. P5:- COP ORDER DTD. 30.6.09 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.23588 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.466 of 2008 from Principal Subordinate Judges Court, North Parur to examine the same and set aside the order dated 30/06/2009 passed by the learned Principal Subordinate Judge, North Parur rejecting Ext.P1 plaint submitted by the petitioner. ii) To direct the learned Principal Subordinate Judge, North Parur to accept Ext.P4 balance court fee from the petitioner in O.S No.466 of 2008 within a time frame to be fixed by this Hon'ble Court and to proceed further in the matter in accordance with law. W.P.(C).No.23588 OF 2009 Page numbers iii) To grant such other further relief to the petitioner as this Hon'ble Court deems just and necessary under the facts and circumstances of the case. 2. Petitioner is the plaintiff in O.S No.466 of 2008 on the file of the Sub Court, North Paravur. Suit was one for specific performance of an agreement of sale, and respondents are the defendants. The defendants appeared through their power of attorney and filed a written statement. But the deed of power of attorney was not produced despite several adjournments provided by the court. In view of that noncompliance in production of the deed of power of attorney, the court passed an order on 27/06/2009 setting the defendants exparte. Plaintiff was directed to pay the balance court fee on the suit claim by 30/06/2009. Court fee payable on the suit claim was substantial as the balance court fee amounted to Rs.54,170/- (Rupees fifty four thousand one hundred and seventy only). Since W.P.(C).No.23588 OF 2009 Page numbers the balance court fee was not paid on the date fixed, ie, 30/06/2009, the plaint was rejected by Ext.P5 order. Propriety and correctness of that order is challenged in the writ petition 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 their 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 cannot be sustained. Needless to point out, within a period of three days it could not have been possible for the petitioner/plaintiff to obtain the stamp paper from the treasury, for remittance of the balance court fee. The time granted by the court for payment of the court fee in the given facts of the case, no doubt, was inadequate. Though petitioner has an efficacious remedy of challenging the order rejecting the W.P.(C).No.23588 OF 2009 Page numbers plaint for nonpayment of court fee by way of an appeal, I am satisfied, this is a fit case which warrants interference and setting aside of Ext.P5 order invoking the visitorial jurisdiction vested with this court. Setting aside Ext.P5 order, I direct the court below to restore the suit and then provide the petitioner an opportunity to pay the balance court fee payable on the suit claim. If balance court fee is paid by the petitioner/plaintiff within three weeks from the date of restoration, it shall be treated as having made within the time fixed by the court. Hand over a copy of the judgment to the counsel on both sides on usual terms, and send a copy to the court concerned forthwith. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv