IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931 WP(C).No. 29985 of 2007(T) {AS.271/2003 OF THE DISTRICT COURT, PALAKKAD OS.288/2001 OF THE MUNSIFF COURT, CHITTUR} .................... PETITIONER(S): --------------- 1. PRAKASAN, S/O. LATE VELAYUDHAN, AGED 26 YEARS, KACHERIPPARA, VITHANASSERY, VALLANGHY VILLAGE, CHITTUR. 2. RAVI, S/O. LATE VELAYUDHAN, AGED 24 YEARS, RESIDING AT KACHERIPPARA, VITHANASSERY, VALLANGHY VILLAGE, CHITTUR. BY ADV. SRI.JOHN JOSEPH(ROY) RESPONDENT(S): --------------- 1. SATHYABHAMA, W/O. VELAYUDHAN, AGED 46 YEARS, VADUKATHARA, ERIMAYUR AMSOM, ALATHUR TALUK. 2. SOUMYA, AGED 19 YEARS, D/O. SATHYABHAMA, VADUKATHARA, ERIMAYUR AMSOM, ALATHUR TALUK. 3. SANTHOSH, AGED 17 YEARS (MINOR), S/O. SATHYABHAMA, VADUKATHARA, ERIMAYUR AMSOM, ALATHUR TALUK, REPRESENTED BY HIS MOTHER SMT.SATHYABHAMA. 4. VALSALA, D/O. VELAYUDHAN, AGED 33 YEARS, VITHANASSERYPPARA, VALLANGHY VILLAGE, CHITTUR. WP(C).No. 29985 of 2007 :: 2 :: 5. RAMAN, S/O. AYYAPPAN, AGED 68 YEARS, VITHANASSERYPPARA, VALLANGHY VILLAGE, CHITTUR. 6. UNNI, S/O. KATHI, AGED 58 YEARS, VITHANASSERYPPARA, VALLANGHY VILLAGE, CHITTUR. R6 BY ADV. SRI.JACOB SEBASTIAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 29985 of 2007 :: :: APPENDIX PETITIONERS' EXHIBITS: EXT.P1: TRUE COPY OF THE DATED 28.02.2003 IN O.S.NO.288/2001 fo THE MUNSIFF'S COURT, CHITTUR. EXT.P2: TRUE COPY OF THE DATED 29.06.2006 IN I.A.NO.1810/2005 IN A.S.NO.217/2003. RESPONDENTS' EXHIBITS: NIL //true copy// P.S. To Judge SK/- S.S.SATHEESACHANDRAN, J. ---------------------------------------------------- W.P.(C)No.29985 of 2007 --------------------------------------------------- Dated this the 24 rd day of February, 2010 JUDGMENT Petitioners are the appellants in A.S.No.217/03 on the file of the District Court, Palakkad. The appeal was rejected by the court below on default of the petitioners/appellants to pay the balance court fee within time. Petitioners moved an application to review the order rejecting the appeal, seeking condonation of delay in remitting the balance court fee. The learned District Judge dismissed that review petition by Ext.P2 order. Propriety and correctness of Ext.P2 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. W.P.(C)No.29985 of 2007 :: 2 :: 3. The dismissal of the review petition by going into the merits of the appeal as done by the court was not proper and correct is the submission of the learned counsel for the petitioners. It is further canvassed that the petitioners must be given an opportunity to have a disposal of the appeal on merits, setting aside the order of the court below and restoring the appeal accepting the balance court fee payable on the appeal tendered by them. 4. Perusing the impugned order, it is seen, the appeal was preferred against the dismissal of a suit filed by the petitioners as plaintiffs to set aside a final decree passed in an earlier suit. The appeal was preferred as early as in 2003, paying 1/3rd of the court fee payable on the memorandum of appeal. Even after two W.P.(C)No.29985 of 2007 :: 3 :: years, the balance court fee payable was not tendered by the appellants. The order of the court below would show, noticing non-payment of the balance court fee on 3.8.2005 the appeal was posted for payment of such fee on 14.10.2005. Since the court fee was not paid on that date, the appeal was rejected. The petitioners/appellants then moved the petition to review the above order rejecting the appeal for non-payment of the balance court fee. The appellate court has found that the cause shown for the non-payment of the balance court fee was a lame excuse. The appellants have contended that the second appellant was indisposed and first appellant was away at Chennai during the period when the appeal was pending before the court. It was also noticed that the appeal had been preferred W.P.(C)No.29985 of 2007 :: 4 :: against the dismissal of a suit wherein the appellants as plaintiffs have sought for setting aside a final decree in the previous suit stating that decree had been passed by collusion and fraud and therefore not binding on them. The appellate court noticed that the suit was dismissed on merits. I find that the learned District Judge has applied his mind to the facts and circumstances presented while exercising his discretion, whether the appeal which had been dismissed for default for non- payment of the court fee has to be restored to file or not. At any rate, there is no jurisdictional error or infirmity in the order passed by the learned District Judge. In exercise of the visitorial jurisdiction it is not proper and appropriate for this court in the given facts fo the case to W.P.(C)No.29985 of 2007 :: 5 :: interfere with the order of the inferior court. Writ petition is dismissed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//