IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 OP(C).No. 1917 of 2011(O) ------------------------- AGAINST THE ORDER DATED 08/04/2011 IN I.A.NO.2128/2010 IN AS.271/2010 of DISTRICT COURT,KOLLAM OS.233/2009 of PRINCIPAL SUB COURT,KOLLAM .................... PETITIONER: ----------------------- HUSSAIN KUNJU, AGED 45 YEARS, S/O.MYTHEEN KUNJU, EX-GULF, KALEECKAL HOUSE, MANAPPALLY NORTH.P.O., PAVUMBA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM. BY ADVS. SRI.RAJA VIJAYARAGHAVAN, SRI.R.RANJITH. RESPONDENT(S): ---------------------------- 1. GRIGARI MICHEAL, AGED 61 YEARS, KANAL BHAVANAM, VENGA MURI, MYNAGAPPALLY - 690 519. 2. ANNAMMA, W/O.GRIGARY MICHEAL, KANAL BHAVANAM, VENGA MURI, MYNAGAPPALLY - 690 519. R1 & R2 BY ADV. SMT.KEERTHI SOLOMON THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 24/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.1917/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER DTD. 9/04/2010 IN O.S.NO.233 OF 2009 OF THE PRL. SUB COURT, KOLLAM. P2: COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER HEREIN BEFORE THE HON'BLE DISTRICT COURT, KOLLAM DTD. 25/10/2010. P3: COPY OF THE APPLICATIOIN SEEKING TO CONDONE THE DELAY (I.A.NO. 2128 OF 2010 IN A.S.NO.271 OF 2010) DTD. 25/10/2010. P4: COPY OF THE ORDER DTD. 8/04/2011 IN I.A.NO.2128 OF 2010 IN A.S.NO. 271 OF 2010. RESPONDENT'S EXHIBITS: R1: COPY OF THE PROOF AFFIDAVIT DTD. 07/03/2011. R2: COPY OF THE OBJECTION DTD. 2/12/2010. R2: COPY OF THE TREATMENT CERTIFICATE DTD. 02/03/2011. /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.1917 of 2011 --------------------------------------- Dated this 24th day of October, 2011 JUDGMENT This original petition is in challenge of Ext.P4, order whereby learned District Judge, Kollam has refused to condone the delay as prayed for in I.A.No.2128 of 2010 in A.S.No.271 of 2010. Appeal was preferred from the judgment rejecting the plaint for non payment of balance court fee, with delay which was sought to be condoned in I.A.No.2128 of 2010. Learned District Judge was not impressed by the reasons stated for condonation of delay, opined that the attempt of petitioner is to avoid payment of court fee in the appeal by paying `.10/- by way of court fee and dismissed I.A.No.2128 of 2010. It is not disputed that consequent to the dismissal of I.A.No.2128 of 2010 the appeal also was dismissed. Ext.P4, order on I.A.No.2128 of 2010 is under challenge. 2. This original petition is filed challenging Ext.P4, order in view of the conflicting decisions of the Supreme Court in Ratansingh Vs. Vijaysingh & Ors. (2001(1) SCC 469) (rendered by two learned Judges), Chandi Prasad Vs. Jagdish Prasad (2004(3) KLT 654 SC) and Shyam Sundar Sarma Vs. O.P(C).No.1917 of 2011 -: 2 :- Pannalal Jaiswali (2005 KHC 34). The latter two decisions are rendered by Benches of co-equal strength. The question as to in such circumstances which of the decision of Supreme Court has to be followed by other Courts in the country was referred to the full Bench. The Full Bench has rendered its decision in Raman Gopi and Anr. Vs. Kunju Raman Uthaman (2011(4) KLJ 126) following the decision of an earlier Full Bench in Joseph Vs. Special Tahsildar (2001(1) KLT 958). As per the decisions of the Full Benches referred above, when conflicting decisions are rendered by Benches of co-equal strength of the Supreme court, all other courts are to follow the latter judgment. If that be so, this court is bound by the decision in Shyam Sundar Sarma Vs. Pannalal Jaiswali (supra) that when the appeal is dismissed consequent to the dismissal of the application for condonation of delay, there is nevertheless a decision in the appeal. 3. In that situation the remedy of petitioner is not to challenge Ext.P4, order but challenge the decree which followed dismissal of the appeal (if not a decree is drawn up, it has to be so done) consequent to the dismissal of I.A.No.2128 of 2010. In that view of the matter this original petition cannot be sustained. O.P(C).No.1917 of 2011 -: 3 :- Resultantly this original petition is disposed of without prejudice to the right if any of petitioner to challenge the judgment and decree in A.S.No.271 of 2010 (if no decree is drawn up, it has to be drawn up by the court below) and in that appeal challenge correctness of dismissal of I.A.No.2128 of 2010 as provided under the law. (THOMAS P. JOSEPH, JUDGE) Sbna/-