Smt.Chitra Ramesh vs Dr.Binu Ramesh
2021 Latest Caselaw 4207 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

            THE HONOURABLE MR. JUSTICE SATHISH NINAN

   THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                          OP(C).No.249 OF 2021

AGAINST THE ORDER DT. 27.11.2020 IN IA 1474/2020 IN OS 133/2017
                OF SUB COURT, THIRUVANANTHAPURAM

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PETITIONER/PLAINTIFF:

             SMT.CHITRA RAMESH
             D/O. LATE G. RAMESAN, AGED 58 YEARS, RESIDING AT
             SAMTHRIPTHY, EAST FORT, THIRUVANANTHAPURAM 695 023

             BY ADVS.
             SRI.K.C.ELDHO
             SRI.MALLENATHAN.M.

RESPONDENT/DEFENDANT:

             DR.BINU RAMESH
             AGED 54 YEARS
             D/O. LATE G. RAMESAN, RESIDING AT SAMTHRIPTHY,
             ROYAL NAGAR, ASRAMAM, KOLLAM 691 584

             R1   BY   ADV.   SRI.SAIJO HASSAN
             R1   BY   ADV.   SRI.BENOJ C AUGUSTIN
             R1   BY   ADV.   SRI.RAFEEK. V.K.
             R1   BY   ADV.   SMT.P.PARVATHY
             R1   BY   ADV.   SMT.SURYA P SHAJI
             R1   BY   ADV.   SMT.AATHIRA SUNNY
             R1   BY   ADV.   SHRI.MANAS P HAMEED
             R1   BY   ADV.   SHRI.ELDHO.N.MONCY
             R1   BY   ADV.   U.M.HASSAN

     THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                       SATHISH NINAN, J.
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                    O.P.(C) No.249 of 2021
             ==================
            Dated this the 4th day of February, 2021

                               JUDGMENT

The petitioner is the plaintiff in a suit for

money. The plaint was rejected for non-payment of

balance court fee. On payment of the balance court

fee, the petitioner moved an application for

restoration of the suit. The application was filed

under Order IX Rule 9 read with Section 151 of the

Civil Procedure Code. Realising the mistake in the

provision quoted, the petitioner filed an

application as IA 2/2020 for substituting the

provision as Order 47. The trial court dismissed

the applications as per the orders impugned.

2. Heard learned counsel Sri.K.C.Eldho on

behalf of the petitioner and learned counsel O.P.(C) No.249 of 2021

Sri.Nagaraj Narayanan on behalf of the respondent.

3. Sri.Nagaraj Narayanan is right in his

submissions that the plaint having been rejected

for non-payment of balance court fee an application

under Order IX CPC is not the remedy. He is also

right in his submission that even if the provision

quoted in the application is read as Order 47,

still the application is not in the prescribed

format for a review. However, I am inclined to

allow this Original Petition for the reasons herein

below.

4. The balance court fee payable has already

been paid. The parties have been fighting the

litigation since the year 2017. Procedure is to be

the handmaid of justice and not the mistress. Even

if the present applications are dismissed, it would O.P.(C) No.249 of 2021

be open for the petitioner-plaintiff to move a

fresh application for review of the order rejecting

the plaint or even to file an appeal against the

order of rejection which is a deemed decree.

Relegating the parties to the said procedure at

this stage would only further protract the suit. It

is only in the interests of both the parties that

the trial of the suit be expedited and the lis

decided on merits without delay. The restoration

sought for by the petitioner would very well be

understood as one seeking a review of the order

rejecting the plaint. The settlement talks between

the parties is suggested to be the reason for non-

payment of the court fee in time. The court fee

having been paid, I am of the opinion that the suit

could be restored back to file.

O.P.(C) No.249 of 2021

In the result, the orders impugned are set

aside. The suit OS 133/2017 will stand restored to

file and the balance court fee accepted. The trial

court shall proceed to dispose of the suit in

accordance with law expeditiously and preferably

within a period of six months from today. The

inconvenience caused to the respondent-defendant is

liable to be compensated by way of costs, which I

fix at `10,000/-, payable to the counsel appearing

for respondent before this Court within a period of

ten days from today. In the event of failure to pay

the costs as ordered above the original petition

will stand dismissed affirming the orders impugned.

Sd/-

SATHISH NINAN JUDGE

kns/-

//True Copy// P.S. to Judge OP(C).No.249 OF 2021

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE PLAINT OS NO 133 OF 2017 OF SUB COURT, THIRUVANANTHAPURAM

EXHIBIT P2 THE CERTIFIED COPY OF THE ORDER DATED 13-06-2019 IN OS NO. 133 OF 2017 OF THIS HON'BLE COURT

EXHIBIT P3 A TRUE COPY OF THE APPLICATION AS IA NO.

1474 OF 2020 IN OS NO. 133 OF 2017 OF THIS HON'BLE COURT

EXHIBIT P4 A TRUE COPY OF THE AMENDMENT APPL;ICATION IA NO. 2 OF 2020 SUBMITTED BY THE PETITIONER TO AMEND THE EXHIBIT P2 APPLICATION.

EXHIBIT P5 A TRUE COPY OF THE OBJETION FILED BY THE RESPONDENT TO EXHIBIT P3

EXHIBIT P6 A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO EXHIBIT P4

EXHIBIT P7 THE CERTIFIED COPY OF THE ORDER IN EXHIBIT P3 DATED 27-11-2020

EXHIBIT P7A THE CERTIFIED COPY OF THE ORDER DATED 27-11-2020 IN EXHIBIT P4

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