IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 RSA.No. 773 of 2009() --------------------- AS.33/2007 of SUB COURT,ALAPPUZHA O.S.NO.134/2001 OF ADDL.MUNSIFF COURT, ALAPPUZHA .................... APPELLANT/APPELLANT/PLAINTIFF --------------------------------------- V.O.FELIX, S/O. OUSEPH, VALAYIL ARYAD SOUTH VILLAGE, THUMPOLY.P.O. ALAPPUZHA. BY ADV. SRI.B.GOPAKUMAR SMT.CHINCY GOPAKUMAR RESPONDENT(S)/RESPONDENTS/ DEFENDANTS ------------------------- 1. THE KERALA STATE HOUSING BOARD, ALLEPPEY DIVISION, REP. BY ITS SECRETARY THE KERALA STATE HOUSING BOARD, ALAPPUZHA DIVISION, ALAPPUZHA. 2. STATE OF KERALA, REP. BY THE DISTRICT COLLECTOR, ALAPPUZHA. ADV. POOVAPPALLY M.RAMACHANDRAN NAIR,SC.KSHB FOR R1 GOVERNMENT PLEADER SHRI L.G.SURESH BABU FOR R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.773 of 2009 -------------------------------------- Dated this the 1st day of December, 2009. JUDGMENT Admit. Respondent No.1 appears through counsel. Government Pleader takes notice for respondent No.2. 2. This Regular Second Appeal is brought from judgment and decree of learned Sub Judge, Alappuzha in A.S.No.33 of 2007. Appellant availed a housing loan from respondent No.1 as per an agreement. Respondent No.1 sanctioned loan of Rs.1,75,000/- repayable within 15 years at the rate of Rs.1,750/- per month. As security for the due repayment of the loan equitable mortgage was created in favour of respondent No.1. Appellant would say that of the amount of Rs.1,75,000/- only Rs.1,59,000/- was paid to him in three instalments. Rest of the amount was not paid as he did not agree for re- scheduling repayment of the loan. According to the appellant, respondent No.1 refused to accept the instalment of Rs.1,750/- per month as originally scheduled and instead initiated steps for recovery of the amount under provisions of the Revenue Recovery Act. Appellant then filed O.S.No.134 of 2001 in the court of learned Additional Munsiff, Alappuzha seeking declaration regarding his liability and injunction against recovery of the amount. Respondents resisted the suit contending that the amount as claimed by respondent No.1 is due from the appellant and that recovery proceeding are valid. In the meantime, there was a RSA No.773/2009 2 Civil Miscellaneous Appeal, C.M.A.No.38 of 2001 arising from the order of the trial court refusing to grant temporary injunction in favour of the appellant. That appeal was allowed and injunction was granted on condition that appellant continued to pay to the respondent at the rate of Rs.1,750/- per month. Trial court was directed to dispose of the suit. Evidence was recorded in the case and it was taken up for judgment. As per order dated 22.7.2003 learned Munsiff directed appellant to correct valuation of the suit and pay proper court fee. Appellant filed I.A.No.3138 of 2003 to review order dated 22.7.2003. That application was dismissed. Appellant then filed I.A.No.3202 of 2003 to keep the order dismissing I.A.No.3138 of 2003 in abeyance. That application was dismissed as per order dated 25.7.2003 and consequently the plaint was rejected as per judgment dated 31.7.2003. Appellant filed Writ Petition, W.P.(C) No.11680 of 2004 before this Court challenging order dated 25.7.2003. That petition was disposed of as per judgment dated 25.6.2007 permitting appellant either to file a Writ Petition challenging the order directing appellant to correct valuation of the suit and pay proper court fee or to prefer an appeal from the rejection of plaint. Appellant preferred the latter course and filed A.S.No.33 of 2007. Appellate court went into the merits of the case, found that appellant has no case and dismissed the appeal. That judgment and decree are under challenge in this Second Appeal. 3. Following substantial questions of law are raised for a decision: RSA No.773/2009 3 i. Could the lower appellate court (first appellate court) consider the merits of the case by raising points for consideration to determine the entitlement of the appellant for a decree as prayed for in the suit, when the appeal was one challenging rejection of the plaint for under valuation or improper valuation? ii. Was not the courts below expected to decide whether rejection of the plaint was right or not and give an opportunity to the appellant to adjudicate the issue in a properly valued suit or other legal proceedings which could redress his grievances in the peculiar facts and circumstances on the causes of action alleged? It is contended by learned counsel for appellant that while considering the appeal against rejection of plaint which amounted to a decree, first appellate court could have gone only into the merits of the rejection of the plaint and not regarding the merits of the case set up by the appellant which was not decided by the trial court. Learned counsel for appellant submitted that given an opportunity appellant is prepared to comply with the order dated 22.7.2003 passed by the learned Munsiff. I heard learned counsel for respondent No.1 and the Government Pleader as well. 4. Appeal was preferred before the first appellate court against the order rejecting the plaint for non-compliance of the direction contained in the order dated 22.7.2003. Rejection of the plaint comes within the definition of 'decree' and hence the appeal was competent. In that appeal what the first RSA No.773/2009 4 appellate court was required to consider was only whether challenge made by appellant to the order dated 22.7.2003 directing proper valuation of the suit and payment of court fee accordingly was correct on the contentions raised by the appellant. There was no scope or necessity for the first appellate court to go into the merits of the case pleaded by the appellant on the question whether he is entitled to the injunction and declaration prayed for. 5. Learned counsel for appellant submitted that appellant is prepared to comply with the order dated 22.7.2003 passed by the learned Munsiff. True, willingness is expressed only now, in the year 2009. But it is seen that the appellant has been challenging the orders passed against him in separate proceedings, during the intervening period. Having regard to the circumstances of the case and also the fact that appellant has been fighting the impugned orders in one way or other, I am inclined to give the appellant an opportunity to comply with the order dated 22.7.2003. Substantial questions of law framed above are answered accordingly. Resultantly, the Second Appeal is allowed in the following lines: i. Judgment and decree of the first appellate court are set aside. ii. Order of the trial court rejecting the plaint for non-compliance of order dated 22.7.2003 is set aside. RSA No.773/2009 5 iii. Case is remanded to the trial court. Learned Munsiff shall give the appellant opportunity to comply with the order dated 22.7.2003 directing correction of valuation of the suit and payment of proper court fee. iv. On such compliance, learned Munsiff shall pass appropriate orders consequent to such compliance. v. Interim injunction ordered in C.M.A.No.38 of 2001 will remain in force as provided under law. In case on proper valuation of the suit the plaint is required to be returned for presentation in the proper court, learned Munsiff shall pass appropriate orders on all pending applications. vi. Parties shall appear in the trial court on 4.1.2010 . vii. Parties will suffer their respective costs in this appeal. THOMAS P.JOSEPH, Judge. cks