IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 7TH SEPTEMBER 2010 / 16TH BHADRA 1932 WP(C).No. 24144 of 2010(O) ------------------------- OS.201/2009 OF SUB COURT, ERNAKULAM ......................................................... PETITIONER : ----------------- V.T.SURESH, AGED 35, S/O.THEVAN, BUSINESS, VATTAPANATH HOUSE, PAMBRA DESOM, MANEED VILLAGE, MUVATTUPUZHA TALUK. BY ADVS. SRI.SUNU P.JOHN SRI.C.DEVANAND RESPONDENT : -------------------- LATHA SIJI, AGED 35, W/O.SIJI, VATTAPARAMBIL HOUSE, KANAYANNUR DESOM, KANAYANNUR P.O., KANAYANNUR VILLAGE, KANAYANNUR TALUK. BY ADVS. SRI.SANU.S.PANICKER SRI.K.C.BIJU FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ...2/- WP(C).No. 24144 of 2010 -2- APPENDIX PETITIONERS' EXHIBITS: EXT. P1: COPY OF THE AFFIDAVIT DTD. 17.12.09 FILED BY THE PETITIONER IN O.S. NO. 201/09. EXT. P2: COPY OF THE ORDER DTD. 18.12.09 IN O.S.NO. 201/09 PASSED BY THE PRINCIPAL SUB COURT ERNAKULAM. RESPONDENTS' EXHIBITS - NIL //TRUE COPY// P.A. TO JUDGE Mn THOMAS P JOSEPH, J. --------------------------------------- W.P.(C) NO.24144 OF 2010 -------------------------------------------------- Dated this the 7th day of September, 2010. JUDGMENT This writ petition is in challenge of dismissal of the suit on 18-12- 2009 for non payment of cost. Petitioner sued respondent for recovery of advance amount of Rs.1,00,000/- with interest on the strength of an agreement for sale. Petitioner filed I.A.No.2363 of 2009 for attachment of property and there was a conditional order of attachment. Later, that application was dismissed with compensatory cost of Rs.2,000/-. Petitioner filed I.A.No.6869 of 2009 to keep the order ( for payment of compensatory cost) in abeyance and to issue copy of that order. In the meantime, petitioner challenged dismissal of I.A.No.2363 of 2009 in C.M.A.No.105 of 2009. Respondent appeared in the C.M. Appeal. The appeal was posted on 08-01-2010. Petitioner filed affidavit in the trial court stating that C.M. Appeal has been filed, is posted on 08-01-2010 for hearing and requested further time for payment of compensatory costs ordered on I.A.No.2363 of 2009. Trial court was not inclined to entertain that request and ordered “no cost paid. Pleading is stuck off. Suit dismissed. No costs:” That order is under challenge in this writ petition. Learned counsel for petitioner contends that the fact of pendency of C.M. Appeal challenging order on I.A.No.2363 of 2009 was brought to the notice of learned Sub Judge in form of an affidavit but that was discarded. Learned counsel for W.P.(C) NO.24144 OF 2010 2 respondent does not dispute that a copy of that affidavit was given to the learned counsel for respondent in the trial court. 2. The suit has been dismissed. Learned Sub Judge also ordered that pleading is stuck off . This Court in Krishnapillai v State of Kerala (2007 (2)m KLT 588) has held, with respect to an appealable order that when a mistake is committed by the court the party shall not be put to trouble to pay huge amount as Court fee by filing appeal to correct the mistake committed by court and that in such circumstances the order is open to challenge under Article 227 of the Constitution. Again, in Prabhakaran v Sajini (2010 (1) KLT 53) for not answering when interrogations pleading was stuck off, this Court observed that when there is glaring jurisdictional infirmity in the order of Subordinate court, writ petition challenging such order is entertainable. Here, fact that order on I.A.2363 of 2009 was under challenge in the appellate court was brought to notice of learned Sub Judge. But, rejecting that the suit has been dismissed and pleading stuck off. Certainly, learned Sub Judge was not correct in doing so ignoring the pendency of C.M. Appeal. Propriety required learned Sub Judge to adjourn the case until disposal of C.M. Appeal. Even otherwise, it is not as if every non payment of cost should result in pleading being stuck off or the suit being dismissed. It is only when there is willful non payment that such drastic steps could be adopted by a court. Here, the non payment of cost was due to the reason of W.P.(C) NO.24144 OF 2010 3 pendency of C.M. Appeal. Hence, there was no occasion for learned Sub Judge to strike off the pleadings. The impugned order is patently illegal and unjust, not to say that it lacked sense of propriety. 3. For the reasons stated above, the impugned order and dismissal of suit cannot be sustainable. Resultantly, this writ petition is allowed. The impugned order (Ext.P2) striking off a pleadings and dismissing the suit is set aside and the suit will stand restored to file. Payment of cost on I.A.No.2363 of 2009 would await decision in C.M.A No.105 of 2009. THOMAS P JOSEPH,JUDGE. pm