IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 30TH MARCH 2011 / 9TH CHAITHRA 1933 WP(C).No. 15768 of 2010(O) OS.179/2006 OF SUB COURT, KATTAPPANA PETITIONER: --------------- T.K.UNNI, S/O.KUNJUNNI, RESIDING AT THAIVELIYIL HOUSE, KOZHIKKANAM ESTATE, IIN DIVISION, ELAPPARA VILLAGE. BY ADV. SRI.T.I.ABDUL SALAM SRI.PHILIP T.VARGHESE RESPONDENTS: --------------- 1. R.B.T.COMPANY, REGISTER OFFICE, JITHWARPOORKOTHI, SAMASTHIPOOR DISTRICT, BIHAR, REPRESENTED BY R.B.T.COMPANY DIRECTOR. 2. MANEESH MOHANSHARMA, S/O.BEERENDRA MOHANSHARMA, DIRECTOR, R.B.T.COMOPANY, THAKKOOR HOUSE, 1/15, DOUCH SEMTTARY,KORT KOCHI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 PHOTOCOPY OF THE PLAINT DATED 21.11.2006 IN O.S.NO.179 OF 2006 OF THE SUB COURT, KATTAPPANA. EXT.P2 PHOTOCOPY OF I.A.NO.577/2008 IN O.S.NO.179/2006 OF THE SUB COURT, KATTAPPANA DATED 9.7.2008. EXT.P3 TRUE COPY OF THE ORDER DATED 29.10.2008 IN I.A.NO.577 OF 2008 IN O.S.NO.179 OF 2006 OF THE SUB COURT, KATTAPPANA. EXT.P4 PHOTOCOPY OF I.A.NO.1017 OF 2008 IN O.S.NO.179 OF 2006 OF THE SUB COURT, KATTAPPANA DATED 11.11.2008. EXT.P5 PHOTOCOPY OF I.A.NO.1016/2008 IN O.S.NO.179/2006 OF THE SUB COURT, KATTAPPANA DATED 11.11.2008. EXT.P6 PHOTOCOPY OF THE COMMON ORDER DATED 5.10.2009 IN I.A.NO.1016/2008, 1017/2008 IN O.S.NO.179 0F 2006 OF SUB COURT, KATTAPPANA. EXT.P7 PHOTOCOPY OF I.A.NO.884/2009 IN I.A.NO.577/2008 IN O.S.NO.179 OF 2006 OF THE SUB COURT, KATTAPPANA DATED 24.8.2009. EXT.P8 PHOTOCOPY OF I.A.NO.883/2009 IN I.A.NOS.577/2008 IN O.S.NO.179 OF 2006 OF THE SUB COURT, KATTAPPANA DATED 24.8.2009. EXT.P9 TRUE COPY OF THE COMMON ORDER DATED 8.3.2010 IN I.A.NOS.883/2009 & 884/2009 IN O.S.NO.179/2006 OF THE SUB COURT, KATTAPPANA. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO.15768 OF 2010 ------------------------------------------------------ Dated this the 30th day of March, 2011 JUDGMENT The petitioner filed O.S.No.179 of 2006 before the Sub Court, Kattappana for specific performance of an agreement for sale in respect of an item of immovable property. On 16.6.2008, the plaint was rejected for non-payment of the balance court fee. The petitioner filed I.A.No.577 of 2008 to review the order dated 16.6.2008. I.A.No.577 of 2008 was dismissed by Ext.P3 order dated 29.10.2008, holding that balance court fee was not paid before filing the Review Petition. 2. Thereafter, the petitioner paid the balance court fee and filed I.A.No.1017 of 2008 (Ext.P4) to review the order dated 16.6.2008. I.A.No.1017 of 2008 was dismissed by Ext.P6 order dated 5.8.2009 holding that the petitioner should have filed an application to review the order in I.A.No.577 of 2008 and instead, he had filed a Review Petition to review the order dated 16.6.2008. 3. Thereafter, the petitioner filed I.A.No.884 of 2009 W.P.(C) NO.15768 OF 2010 :: 2 :: (Ext.P7) to review Ext.P3 order dated 29.10.2008. That application was dismissed by the court below as per Ext.P9 order dated 8.3.2010 holding that there is no error apparent on the face of the record and also on the ground that the delay is not properly explained. 4. The repeated attempts made by the petitioner to pay the balance court fee and to salvage the suit was defeated by a hyper technical view taken by the court below. When the petitioner applied for reviewing the order dated 16.6.2008, that was dismissed stating that the balance court fee should have been paid before filing the Review Petition. Then the petitioner paid the balance court fee and filed a Review Petition. That petition was dismissed on the ground that the petitioner should have filed a Review Petition to review the order passed in the earlier Review Petition. Then the petitioner complied with that order also. However, the Court dismissed that application by saying that no grounds are made out to review the order. The view taken by the court below in Ext.P6 order dated 5.8.2009 that the petitioner should have filed a Review Petition seeking to review the order W.P.(C) NO.15768 OF 2010 :: 3 :: passed in the Review Petition is clearly against Rule 9 of Order XLVII of the Code of Civil Procedure, which provides that no application to review an order made on an application for review of a decree or order passed on a review shall be entertained. However, since the Court directed to do so, the petitioner complied with the same. Then the Court passed the order stating that no grounds are made out to review. In fact, the court below should have allowed I.A.No.1017 of 2008 to review the order dated 16.6.2008 after allowing the plaintiff to pay the court fee. The earlier application, namely, I.A.No.577 of 2008, was dismissed only on the ground that the petitioner did not pay the balance court fee. Having complied with that condition, the court below should have treated I.A.No.577 of 2008 as revived and should have considered the application for review of the order dated 16.6.2008. Instead of doing so, the petitioner was directed to do all sorts of things and ultimately he was told that he missed the bus. The view taken by the court below is illegal. After all, a party wants to continue to prosecute the suit after paying the necessary court fee. Since the application was not opposed by any of the defendants, the court below should have allowed the petitioner to prosecute the suit. W.P.(C) NO.15768 OF 2010 :: 4 :: Accordingly, the Original Petition is allowed. Ext.P6 order in I.A.No.1017 of 2008 and Ext.P9 order in I.A.Nos.883 of 2009 and 884 of 2009 are set aside. I.A.No.1017 of 2008 is allowed. Since the petitioner has paid the balance court fee, the suit shall be restored to file. (K.T.SANKARAN) Judge ahz/