IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 WP(C).No. 22515 of 2008(E) -------------------------------------- OS.629/2005 of MUNSIFF COURT, PUNALUR .................... PETITIONER(S): --------------------- THACHI, AGED 56 YEARS, W/O.LATE KUNJU MOHAMMED, RESIDING AT CHEMMANKUZHY HOUSE, ERAMANKARAYIL, KADUNGALLOOR VILLAGE. BY ADV. MR.A.X.VARGHESE MR.A.V.JOJO RESPONDENT(S): ------------------------ 1. MOHEMMAD ALI, AGED 36 YEARS, S/O.KUNJU MOHAMMED, RESIDING AT CHEMMANKUZHY HOUSE, ERAMANKARAYIL, KADUNGALLOOR VILLAGE. 2. ASIZ, AGED 37 YEARS, S/O.KUNJU MOHAMMED, RESIDING AT CHEMMANKUZHY HOUSE, ERAMANKARAYIL, KADUNGALLOOR VILLAGE. BY ADV. MR.C.P.ABDUL KHADER MR.RAJU G. SHENOI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 22515/2008-E APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE I.A.2587/2007 IN O.S.629/2005 DATED 05/11/2007. EXT.P2: COPY OF THE COUNTER DATED 29/01/2008. EXT.P3: COPY OF THE ORDER DATED 14/02/2008 IN I.A.2587/2007 IN O.S.629/2005 OF THE MUNSIFF COURT, PARAVUR. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.22515 OF 2008 () ----------------------------------- Dated this the 16th day of October, 2009 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to set aside the impugned order in I.A.NO.2587/2007 in O.S.No.629/2008 dated 14.2.2008 in the file of the Munsiff Court, Paravur. ii. to direct the Munsiff Court, Paravur to allow the petitioner for remitting the balance court fee in O.S.No.629/2005 and conduct the case. 2. Petitioner is the plaintiff in O.S.No.629 of 2005 on the file of the Munsiff Court, North Paravur. Suit was one for setting aside a sale deed as vitiated by fraud and misrepresentation. The defendants in the suit admittedly are the sons of the plaintiff, and by fraudulent means and WPC.22515/08 2 misrepresentation, they got a sale deed in respect of the suit property from the plaintiff, was her case. Plaint was rejected for nonpayment of the court fee within the time ordered by the court. Plaintiff moved an application for review. That application was also dismissed for the reason it was not filed in proper form and also there was no explanation for the delay in seeking review of the order rejecting the plaint. Challenging the rejection of the order passed on the review petition, the writ petition has been filed invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioner. The order rejecting the plaint is a decree as covered by Section 2 (2) of the Code of Civil Procedure. Petitioner has a statutory right to prefer an appeal against that order. It is also open to her to file a review against the order rejecting the plaint. Dismissal of the review petition will not bar her right to challenge the order rejecting the plaint for nonpayment of the court fee by way of appeal. True, the delay has to be explained in filing the review petition or the appeal whatever WPC.22515/08 3 that be. Writ jurisdiction of this Court cannot be invoked to challenge an order rejecting the plaint when alternate efficacious remedy by way of a statutory appeal is provided. Further, Order VII Rule 13 of CPC also makes it abundantly clear that the rejection of the plaint for any of the reasons covered by Rule 11 of Order VII of CPC will not preclude the plaintiff in presenting a fresh plaint on the same cause of action subject to the law of limitation applicable. So, it is open to the petitioner to seek any of the remedies provided by law, if so advised. Petitioner can also canvass in the appeal, if any , preferred to exclude the time during which the writ petition was prosecuted, as covered by Section 14 of the Limitation Act. So much so, I find no interference in Ext.P3 order passed by the court below is called for. Reserving the right of the petitioner to seek appropriate remedies as provided by law, the writ petition is closed. S.S.SATHEESACHANDRAN JUDGE prp