IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 25TH JUNE 2010 / 4TH ASHADHA 1932 WP(C).No. 19666 of 2010(O) -------------------------- IA NO.1046/2010 IN OS.339/2009 of PRINCIPAL SUB COURT,KOLLAM .................... PETITIONER(S): --------------- M.ABDUL MUTHALIF, AGED 60 YEARS, S/O.S.M.RAWTHER, GOVT.CONTRACTOR, NAVAS MANZIL PLACHERY, PUNALOOR, KOLLAM DISTRICT. BY ADV. SRI.H.B.SHENOY SRI.B.ASHOK SHENOY SMT.LAKSHMI B.SHENOY SRI.ABU MATHEW SRI.SOBHAN GEORGE RESPONDENT(S): --------------- 1. STATE OF KERALA,REPRESENTED BY THE SECRETARY TO GOVT.CONTRACTOR, NAVAS MANZIL, PLACHERY, PUNALOOR, KOLLAM DISTRICT. 2. THE CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM. 3. THE SUPERINTENDING ENGINEER, NATIONAL HIGHWAY SOUTH CIRCLE, THIRUVANANTHAPURAM. 4. THE EXECUTIVE ENGINEERING, PWD BH DIVISION, PUNALOOR. 5. THE ASSISTANT EXECUTIVE ENGINEER, PWD NH SUB - DIVISION, PUNALOOR. 6. THE ASSISTANT ENGINEER, PWD NH SECTION, KOTTARAKKARA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/06/2010, ALONG WITH WP(C) NO.19665/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) Nos.19665 & 19666 of 2010 -------------------------------------- Dated this the 25th day of June, 2010. JUDGMENT These Writ Petitions are filed in challenge of separate orders passed by learned Principal Sub Judge, Kollam in I.A.Nos.1047 of 2010 and 1046 of 2010 in O.S.Nos.338 of 2009 and 339 of 2009 respectively of that court. Petitioner filed the said suits for realization of money under two work contracts. Respondents did appear in court but did not file written statements and hence were set exparte on 16.01.2010. Cases were posted to 16.02.2010 for payment of balance court fee. In the meantime respondents filed I.A.Nos.531 of 2010 and 532 of 2010 to set aside the exparte orders against them. On 16.02.2010 petitioner sought time for payment of balance court fee. Learned Sub Judge dismissed I.A.Nos.531 of 2010 and 532 of 2010 the same day and for the reason of non-payment of balance court fee the plaints were rejected. Petitioner with the hope that he will be able to resurrect the cases filed I.A.Nos.1047 of 2010 and 1046 of 2010 respectively stating reasons for non-payment of balance court fee on or before 16.02.2010. Learned Sub Judge passed the following order on the said applications “There is no apparent error on the face of the order to review it. Hence dismissed.” Learned counsel for petitioner contends that petitioner had in the affidavits in support of applications stated circumstances under which he could not pay WP(C) Nos.19665 & 19666/2010 2 balance court fee before 16.02.2010 but without application of mind learned Sub Judge has dismissed the said applications. For the purpose of disposal of these Writ Petitions I have heard learned Government Pleader who took notice for respondents though, as revealed from the records respondents have been set exparte by the learned Sub Judge and that order remain in force. 2. Question is whether learned Sub Judge was correct in dismissing the applications for review. As I stated, those applications are dismissed by a non-speaking order stating that there is no error apparent on the face of order. It is not clear whether the learned Sub Judge has adverted to the reasons stated by petitioner in paragraph No.3 of the affidavits in support of the applications for review. I have gone through the affidavits of petitioner where reason is stated. According to the petitioner, following the exparte order against the respondent on 16.02.2010 the case was posted on 16.02.2010 for payment of balance court fee but before that day learned Government Pleader appearing for respondent in the court below served on counsel for petitioner a copy of application to set aside the exparte order and petitioner, under the impression that the said application is coming up for hearing on 16.02.2010 did not raise the balance court fee. During the roll call on 16.02.2010 it was revealed that applications filed by the respondent were held up due to some defect. Thereon counsel for petitioner requested learned Sub Judge to grant some time for payment of balance court fee. Learned Sub Judge kept the matter aside probably awaiting arrival of applications filed by the respondent after curing defects. During the afternoon session counsel for petitioner got information that applications WP(C) Nos.19665 & 19666/2010 3 preferred by the respondent were dismissed and the plaints also were rejected. Hence, petitioner sought for review of the order. 3. No doubt, there may not be any error apparent on the face of record so far as the order rejecting plaints is concerned. Order 47 Rule 1 of the Code of Civil Procedure (for short, “the Code”) provides for review on other grounds also. Ofcourse each case should be decided on the facts of that case. When a plaint is rejected for non-payment of balance court fee, an application for review is permissible. Going through the affidavit of petitioner I am satisfied that petitioner has shown sufficient reason for non-payment of balance court fee on the day specified. I do not find reason to think that having claimed a huge amount from the respondent on the strength of work contract admittedly entrusted to the petitioner and his having paid 1/10th of the court fee payable at the time of filing of the plaint in both the cases, he would refuse to pay the balance court fee within the time specified and invite a dismissal of the suits by which he would not stand to gain. These aspects were not considered by the leaned Sub Judge. Having regard to the facts and circumstances placed before me I am inclined to hold that learned Sub Judge was not justified in dismissing the applications for review. Petitioners ought to have been given an opportunity to resurrect the plaints which were rejected for non-payment of balance court fee. Resultantly these Writ Petitions are allowed setting aside the orders on I.A.No.1047 in O.S.No.338 of 2009 and I.A.No.1046 of 2010 in O.S.No.339 of 2009 passed by learned Principal Sub Judge, Kollam. Those applications are WP(C) Nos.19665 & 19666/2010 4 allowed. Petitioner in both the cases will get three weeks time from this day for payment of balance court fee on the plaint in both the cases. Petitioner shall appear in the court below on 16.07.2010. THOMAS P.JOSEPH, Judge. cks