IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 9TH JANUARY 2008 / 19TH POUSHA 1929 WP(C).No. 888 of 2008(E) ------------------------ AGAINST THE ORDER IN I.A. 1372/2007 IN OS.48/2006 of SUBORDINATE COURT, KOCHI. .................... PETITIONER: ------------ N.B. MAJNU, S/O. N.A. BHOTHY, PROPRIETOR, HERITAGE ARTS, JEW TOWN ROAD, COCHIN-682 002. BY ADV. SRI.SHAJI P.CHALY RESPONDENT: ----------------- CENTRAL BANK OF INDIA, REGIONAL OFFICE, 1ST FLOOR, METRO PLAZA, OPP. ERNAKULAM TOWN RAILWAY STATION, ERNAKULAM, REP. BY ITS REGIONAL MANAGER. BY E.R. VENKITESWARAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 888 OF 2008 = = = = = = = = = = = = = = = Dated this the 9th day of January, 2008. J U D G M E N T This writ petition is preferred against the order of the Subordinate Judge, Kochi in I.A.1372/07 in O.S.48/06. It was a suit filed by the Bank for realisation of the amount due from the defendant. Since the Court fee was not paid the plaint was rejected and an application was filed under Order 9 Rule 13 for setting aside that order. The learned counsel for the writ petitioner submits that such an order is highly erroneous. There cannot be any dispute about the same. When a plaint is rejected under Order 7 Rule 11, the statutory remedy provided is by way of an appeal since a decree is drafted. By judicial pronouncement this Court had held that a review can also be filed. Now, what is filed is under Order 9 Rule 13. Therefore, I have no hesitation to hold that the procedure adopted by the Court below is totally incorrect. W.P.C 888 OF 2008 -:2:- 2. But whether a party should be driven to file an application for review for consideration in the peculiar facts and circumstances of the case looms large herein. The Court has noted that from 16.8.07. As per the 'A' diary the case is seen posted to 10.9.07 whereas as per the proceeding paper it is posted to 19.9.2007. It is submitted that the case was not called on 10.9.07 and it was called on 19.9.07. A mistake was crept in and the Bank was not in a position to pay the Court fee. The learned counsel for the writ petitioner submits that it is not fully correct but on perusal of the order the learned Subordinate Judge has taken that view and she herself has found that the plaintiff cannot be blamed because it was a mistake committed by the Court. When a mistake is committed by the Court, party shall not be put into unnecessary hardship by resorting to technical reasons. So, I feel that in order to render substantial justice the matter has to be suo motu reviewed and the Court fee is to be permitted to be paid. But I make it very clear that this shall not be a precedent in any other case but it is being permitted W.P.C 888 OF 2008 -:3:- only on the peculiar facts and circumstances of the case which is an indicative of the factum of mistake committed by the Court below. If the Court fee is already paid, further steps may be ordered and I make it clear that the plaintiff and the defendant should be given equal opportunities for contesting the case in the way which they want to do. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-