IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 WP(C).No. 2791 of 2010(O) ------------------------- IA NO.421/2009 IN OS.120/2008 of SUB COURT, PALA .................... PETITIONER(S): --------------- 1. TEEKOY RUBBERS (I) LIMTIED, HAVING ITS REGISTERED OFFICE IN PALA ANGADI, LALAM VILLAGE, MEENACHIL TALUK, REPRESENTED BY ITS MANAGING DIRECTOR - THOMAS JOSEPH. 2. THOMAS JOSEPH, S/O.LATE GEORGE THOMAS, RESIDING AT KOTTUKAPALLY HOUSE, PALA ANGADI, LALAM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. 3. VINOD MATHEW, S/O.MATHEW KOTTUKAPALLY, RESIDING AT NO.4 C, SI APARTMENTS, THEVARA, ERNAKULAM. BY ADV. SRI.MATHEWS K.UTHUPPACHAN SRI TERRY V.JAMES SRI.B.J.JOHN PRAKASH RESPONDENT(S): --------------- 1. SUNNY K.UTHUP, S/O.UTHUP, RESIDING AT KOTTUPILLIL HOUSE, KALIYAR KARA, VANNAPPURAM VILLAGE, THODUPUZHA TALUK. 2. MATHEW, S/O.LATE GEORGE THOMAS, RESIDING AT KOTTUKAPALLY HOUSE, PALA ANGADI, LALAM VILLAGE, MEENACHIL TALUK. 3. THOMAS SCARIA, S/O.LATE GEORGE THOMAS, RESIDING AT KOTTUKAPALLY HOUSE, PALA ANGADI, LALAM VILLAGE, MEENACHIL TALUK. KOTTAYAM DISTRICT. WP(C) NO.2791/2010 2 4. VARKYCHAN, S/O.LATE GEORGE THOMAS, RESIDING AT KOTTUKAPALLY HOUSE, PALA ANGADI, LALAM VILLAGE, MEENACHIL TALUK. KOTTAYAM DISTRICT. ADV. SRI.NAGARAJ NARAYANAN FOR R1 SRI.SAIJO HASSAN FOR R1 SRI.SABU SREEDHARAN FOR R1 SRI.NIYAS A.SALAM FOR R1 SRI.BENOJ C AUGUSTIN FOR R1 SRI.PRATHAP PILLAI FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.2791/2010 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF PLAINT DATED 24.7.2008 IN OS NO.120/2008 FILED BY THE FIRST RESPONDENT BEFORE THE SUB COURT, PALA EXT.P2 TRUE COPY OF WRITTEN STATEMENT DATED 24.10.2008 FILED BY THE PETITIONERS IN OS NO.120/2008 EXT.P3 TRUE COPY OF IA NO.421/2009 DATED 12.3.2009 IN OS 120/2008 FILED BY THE FIRST RESPONDENT EXT.P4 TRUE COPY OF WRITTEN OBJECTION DATED 18.7.2009 FILED BY THE PETITIONERS IN OS NO.120/2008 EXT.P5 TRUE COPY OF PROOF AFFIDAVIT DATED 13.10.2009 FILED BY THE FIRST RESPONDENT IN OS NO.120/2008 EXT.P6 TRUE COPY OF ORDER DATED 17.11.2009 PASSED BY THE SUB COURT, PALA IN IA NO.421/2009 IN OS NO.120/2008 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.2791 of 2010 -------------------------------------- Dated this the 7th day of June, 2010. JUDGMENT Respondent No.1 filed O.S.No.120 of 2008 in the court of learned Sub Judge, Pala against the petitioners herein. Respondent No.1 however failed to pay the balance court fee on the relevant day and thereon plaint was rejected under Order 7 Rule 11 of the Code of Civil Procedure(for short, “the Code”). Following that respondent No. filed I.A.No.421 of 2009 for review of the order rejecting plaint for non-remitting balance court fee. That application was allowed by the learned Sub Judge as per Ext.P6, order dated 17.11.2009. The said order is under challenge in this Writ Petition at the instance of defendants in the suit. Learned counsel for petitioners, placing reliance on the decision of this Court in Mable v. Dolores (2001 (2) KLT 612) has contended that an order rejecting plaint for non-payment of balance court fee is not amenable to review. Learned counsel for respondent No.1 contend that the order rejecting plaint for non-payment of balance court fee can be reviewed. 2. This Court in Felix Varkey v. Municipal Secretary (2006 (4) KLT SN.31 (Case No.46)) after referring to the decision relied on by learned counsel for petitioner has held that an order rejecting the plaint for non- payment of balance court fee is amenable to a review. In Mable v. Dolores (supra) relied on by the learned counsel for petitioners the question considered was not as to whether order rejecting the plaint for non-payment of balance court fee is amenable to review. There, an application was filed under Order 9 WP(C) No.2791/2010 2 Rule 4 of the Code for restoration after the plaint was rejected for non-payment of balance court fee. In the light of decision in Felix Varkey v. Municipal Secretary (supra) I am unable to accept contention of learned counsel for petitioners that review of the order rejecting plaint for non-payment of balance court fee is not permissible. Court below is therefore correct in entertaining the application for review and on facts, allowing that application. There is no jurisdictional error or infirmity in the order under challenge. Writ Petition is dismissed. THOMAS P.JOSEPH, Judge. cks