IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 CRP.No. 553 of 2009 --------------------- AGINST THE ORDER DATED 15.12.2008 IN I.A.NO.6740/2007 IN OS.614/2004 of I ADDL.SUB COURT,TRIVANDRUM .................... REVN. PETITIONER: --------------------- ASIATIC ASSOCIATION, A PROPRIETORY CONCERN, REPRESENTED BY ITS PROPRIETOR, N.SUJAN. BY ADV. MR.G.S.REGHUNATH RESPONDENTS: --------------- 1. M/S. SATYA PRAKASH & BROTHERS (P) LTD.CO., REPRESENTED BY ITS MANAGING DIRECTOR, SATYA PRAKASH GUPTA. 2. DR.MADHUSOODAN, AUTHORISED REPRESENTATIVE OF M/S SATYA PRAKASH & BROTHERS (P) LTD. CO. ADV. MR.K.L.NARASIMHAN FOR R2 MR.N.KRISHNA PRASAD FOR R2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: “C.R” S.S.SATHEESACHANDRAN, J. ----------------------------------- C.R.P.No.553 of 2009 - E --------------------------------- Dated this the 3rd day of December, 2009 O R D E R Petitioner is the plaintiff in O.S.No.614 of 2004 on the file of the Sub Court, Thiruvananthapuram. Suit was one for money and the respondents are the defendants. Suit was rejected for nonpayment of the balance court fee under clause (c) of Rule 11 of Order VII of the Code of Civil Procedure. Petitioner after remitting the balance court fee payable on the plaint claim moved an application for review of the order rejecting the plaint. Learned Sub Judge dismissed that application holding that the petitioner has to prefer an appeal. That order was challenged before this Court by the petitioner/plaintiff in a previous revision, C.R.P.No.546 of 2008, and it was disposed by order dated 17.7.2008 setting aside the order of the learned Sub Judge directing him to consider the review petition afresh in accordance with law. Pursuant thereto the learned Sub Judge after considering the matter afresh, allowed the review petition subject C.R.P.No.553 of 2009 - E 2 to payment of cost of Rs.2,000/- to the respondents. Since the respondents declined to accept the cost tendered, the plaintiff deposited the amount before the court. However, later, respondents raised an objection that in the review petition which had been already allowed by the court plaintiff had not remitted one half of the court fee and so much so such petition could not have been entertained. Finding merit in the objection so canvassed the learned Sub Judge reviewed the order allowing the review petition and dismissed that petition. Propriety and correctness of that order is challenged in the revision. 2. Notice given, respondent has entered appearance. I heard the counsel on both sides. 3. Learned counsel for the petitioner relying on Thanappan v. Hassan Kappor (2003 (2) KLT 39) contended that even in an appeal filed against an order rejecting a plaint under Order VII Rule 11(b) of the Code of Civil Procedure, there is no need to pay any court fee as by such dismissal there was no adjudication of any of the disputes in the suit. When that be the law in case of appeal, it is submitted by the counsel that in filing of a review petition against an order rejecting the plaint for non C.R.P.No.553 of 2009 - E 3 payment of the balance court fee it cannot be stated that one half of the court fee has to be paid for entertaining that petition. More than the question of the legal aspect involved as to whether one half of the court fee on the suit claim has to be paid in filing a review petition against an order rejecting the plaint for nonpayment of the balance court fee in the given facts of the case, the impact and interdiction covered by Rule 9 of Order XLVII of the Code of Civil Procedure apply with all force. When a review petition has been allowed on an application for review, the above rule mandates no further application in challenge thereof can be entertained. When that be the case, no petition nor any motion from the side of the respondents/defendants in the suit, once a review had been granted by the court could have been canvassed nor entertained by the court. The remedy available to the defendants when a review petition was allowed is to challenge that order by way of an appeal as provided under Rule 7 of Order XLVII of the Code of Civil Procedure. Of course, it may be open to the court where it is found after allowing the review petition that such petition could not have been entertained C.R.P.No.553 of 2009 - E 4 for under the law for the time being is in force. In such a case it is open to the court to vary or set aside the order passed in the review application, and Rule 9 of Order XLVII will not be a bar in exercising that power vested with that court. Whatever that be, the objection at the instance of the defendant/respondent, once a review has been allowed, could not have been entertained in view of the bar under that rule. Then the question whether the plaintiff was required to pay one half of the court fee on the review petition filed against an order rejecting the plaint for nonpayment of the balance court fee emerges for consideration. This Court in Thanappan's case has held that even in an appeal against an order rejecting a plaint for nonpayment of the balance court fee there is no requirement for payment of the court fee since under the order impugned in such appeal there was no adjudication of any of the disputes involved in the suit. When that be so in the case of appeal to be presented against an order rejecting the plaint it is futile to contend that when a review petition is filed against that order one half of the court fee has to be paid on such petition. The impugned order passed by the court below is patently erroneous and unsustainable under law C.R.P.No.553 of 2009 - E 5 and that order is set aside. The learned Sub Judge is directed to restore the suit on file and dispose it in accordance with law. Revision petition is disposed of as above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-