IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 12TH OCTOBER 2011 / 20TH ASWINA 1933 OP(C).No. 3277 of 2011(O) ------------------------------------ AGAINST THE ORDER DATED 02/08 /2011 IN IA 1615/2011 IN OS.33/2010 of SUB COURT, MANJERI .................... PETITIONER(S): ------------------------ SATHER, 35 YEARS, S/O.PARATTUVEETTIL BAVUTTY, POOKODE AMSOM, DESOM, CHAVAKKAD THALUK, THRISSUR DISTRICT. BY ADV. SRI.RAJIT RESPONDENT(S): ------------------------- 1. OTTUPURAKUZHIYIL IBRAHIMKUTTY, 63 YEARS, S/O.BEERANKUTTY VYDIAR, KONDOTTY AMSOM, KOLATHUR DESOM, ERNAD TALUK 680 504. 2. NAFEESA , 57 YEARS, W/O.OTTUPURAKUZHIYIL IBRAHIMKUTTY, KONDOTTY AMSOM KOLATHUR DESOM,ERNAD TALUK 680 504. 3. HOTEL GREEN CASTLE ESTABLISHED AT TIRURANGADI THALUK, KANIPPUR AMSOM, DESOM REP BY ITS MANAGING DIRECTOR, ABBAS HASSANKUTTY, 48 YEARS, S/O.THEKKINTHODYIL HASSANKUTTY, THALAPPILLI THALUK, VENGANALLUR AMSOM,DESOM, THRISSUR DISTRICT 680 506. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DS OP(C).No. 3277 of 2011(O) APPENDIX PETITIONER(S) EXHIBITS : EXT.P1 TRUE COPY OF THE PLAINT FILED BY THE PETITIONER BEFORE THE SUB COURT MANJERI. EXT.P2 TRUE COPY OF OTHE APPLICATION IN IA.1615/2011 IN OS.33/2010. EXT.P3 TRUE COPY OF THE JUDGMENT DT.02.08.2011 IN OS.33/2010. RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ PA TO JUDGE DS THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.3277 of 2011 --------------------------------------- Dated this 12th day of October, 2011 JUDGMENT The prayer in this original petition is to set aside Ext.P3, order dated August 02, 2011 in O.S.No.33 of 2010 of the Court of learned Sub Judge, Manjeri for non payment of balance court fee (in a suit for specific performance filed by the petitioner). The plaint was rejected. It is contended by learned counsel that petitioner had filed Ext.P2, application to receive balance court fee but learned Sub Judge rejected the plaint by Ext.P3, judgment. 2. The rejection of plaint is a “decree” as defined in Sec.2(2) of the Code of Civil Procedure and hence as held by the Division Bench of this Court in Mable Vs. Dolores and Anr. (2001(2) KLT 612), an appeal lies against such rejection. Referring to that decision, learned Single Judge held in Felix Varkey Vs. Municipal Secretary (2006(1) KLT S.N.No.46 at page 31) that a petition for review after remitting the balance court fee is also maintainable. Hence the proper course open to the petitioners is to prefer an appeal or seek review of the judgment if petitioner is otherwise entitled to that course on O.P(C).No.3277 of 2011 -: 2 :- payment of the balance court fee. Hence leaving petitioner to the statutory remedy available to him and without prejudice to that right of his, this original petition is closed. Sd/- (THOMAS P JOSEPH, JUDGE) Sbna/-