IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 18TH NOVEMBER 2008 / 27TH KARTHIKA 1930 CRP.No. 287 of 2006(F) ----------------------------- AGAINST THE ORDER DATED 1/10/2005 IN I.A. 3177/2004 IN OS.1635/2002 of I ADDL.M.C., ERNAKULAM .................... REVN. PETITIONER : ------------------------ GOPALAKRISHNAN NAIR, AGED 42 YEARS, S/O.DAMODARAN PILLAI, SREERAMA SADANAM, THELLIYOOR, PROPRIETOR AND FOREMAN OF P.R.D. CHITTY FUND, KOVILAVATTOM DESOM, ERNAKULAM. BY ADV. SRI.P.HARIDAS RESPONDENTS : ------------------- 1. UMMU SALMA, VAZHAPPIDASSERIL, PUNTHALA MURI, CHENGANNOOR TALUK, VENMANI VILLAGE, ALAPPUZHA DISTRICT. 2. GANGADHARAN THAMPI, MELOTTIL HOUSE, PUNTHALA MURI, PUNTHALA VILLAGE, PUNTHALA P.O., KULANADA VILLAGE. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P. BALACHANDRAN, J. ------------------------------------- C.R.P.No. 287 of 2006 -------------------------------- Dated this the 18th day of November, 2008 ORDER Petitioner is the plaintiff in O.S No.1635 of 2002 on the files of the Munsiff Court, Ernakulam. The suit was filed for realisation of an amount of Rs.27,200/- from the defendants under a Chitty agreement. The learned Munsiff posted the case for filing the written statement on 7/10/2003. Though respondents entered appearance and filed written statement, as they were absent when the case was called they were set exparte and suit was posted for payment of balance court fee and for evidence of the petitioner as balance court fee had not been paid. It is submitted that for the reason of non payment of balance court fee, the plaint was rejected on 13/10/2003. The petitioner filed Review petition and I.A.No.3177 of 2004 to condone the delay of 129 days in filing the review petition . The learned Musiff vide order impugned dismissed both I.As observing that there is no sufficient ground made out and petition is not filed by the plaintiff but by the advocate clerk and that had plaintiff been deligent in prosecuting the case, he could have enquired through his counsel and could have got knowledge of suit. Learned counsel for petitioner has passed on a copy of I.A. No.3177 of 2004 for perusal. The said I.A. is accompanied by an affidavit sworn by C.R.P.No. 287/ 2006 2 the lawyer's clerk to the effect that while the case stood posted on 7/10/2003, he met with an accident and he was hospitalised from 28/09/2003 to 28/12/2003 and he was under complete bed rest and resumed work only in the first week of March, 2004 and thereafter, only on enquiries he understood that the plaint was rejected on 13/10/2003 for non-payment of balance court fee. The petition filed along with the said affidavit is signed by the counsel for the petitioner on behalf of the petitioner and it is incorrect to say that the petition was filed by the lawyer's clerk. Learned Munsiff has not considered the probability or otherwise of the truth of the averments in the affidavit filed by the lawyer's clerk while observing that if the plaintiff was deligently prosecuting the case, he could have enquired through his counsel and could have got knowledge of the suit. The learned Munsiff did not consider the usual practice in the matter of conduct of cases. It very often happens that when something happened to a clerk, the lawyer will not be having the details of the position of all the cases that had been handled by him and if the averments are true it is quite possible that plaint happened to be rejected under the circumstances stated in the affidavit. The court also overlooked the averments made in the affidavit while observing that no sufficient ground is made out. Though served, C.R.P.No. 287/ 2006 3 respondents have not entered appearance in the writ petition and the impugned order does not show that restoration of the plaint rejected for non- payment of balance court fee was opposed by the respondents/defendants, I am of the view that in the circumstances of the case, it was only proper for the court below to have condoned the delay and restored the suit enabling the petitioner/plaintiff to pay the balance court fee and proceed with the suit. In the circumstances I set aside the impugned order passed by the court below on the restoration petition and delay condonation application filed in O.S. No.1635 of 2002 and order restoration of the suit back to file. The petitioner shall pay balance court fee positively within two weeks and it shall be accompanied by a copy of this judgment so as to enable the court to accept the balance court fee and restore the suit back to file. This C.R.P is disposed of with the above directions. K.P. BALACHANDRAN, JUDGE scm