Kerala High Court
Nessy Sunny vs Nil on 19 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942
OP(C).No.1336 OF 2020
AGAINST THE ORDER DATED 09.06.2020 IN I.A.NO.2441/2019 IN
O.S.NO.33/2019 OF MUNSIFF COURT, PALA
PETITIONER/DEFENDANT IN O.S.NO.33/2019:
NESSY SUNNY,
AGED 47 YEARS,
W/O SUNNY, THEVARKUNNEL HOUSE,
LALAM KARA,LALAM VILLAGE,PALA.P.O,
MEENACHIL TALUK,KOTTAYAM DISTRICT-686575.
BY ADV. SHRI.GODWIN JOSEPH
RESPONDENT/ PLAINTIFF IN O.S.NO.33/2019
M.M.THOMAS,
S/O MICHAEL,MACHIANNICKAL HOUSE,
KAROOR.P.O, LALAM VILLAGE,MEENACHIL
TALUK,KOTTAYAM DISTRICT-686574.
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
19.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C)No.1336/2020
-:2:-
Dated this the 19th day of January,2021
J U D G M E N T
Ext.P6 order restoring the suit to file is
challenged by the defendant in O.S.No.33/2019. It
was reported by the learned counsel for the
plaintiff to the court below that he had no
instruction and therefore, the suit was not
pressed. But the court below held that the
submission was made under mistaken circumstances
and therefore, suit for restoration was
maintainable under Order IX Rule 9 of the Code of
Civil Procedure, 1908(for short, 'the CPC').
2. The learned counsel for the petitioner/
defendant also submits that in fact, the dismissal
of the suit was in the wake of plaintiff having
failed to make payment of court fee within time
and the appropriate order that ought to have been
passed, was rejection of the plaint itself.
3. The respondent/plaintiff did not appear
in this proceeding filed under Article 227 of the
Constitution of India, despite service of notice
O.P.(C)No.1336/2020
on him.
4. Looking at the order, I understand that the
exact legal provision which ought have been relied
on by the court below was not under Order IX Rule 9
of the CPC. When a suit is dismissed on purported
ground of non-payment of court fee, the appropriate
remedy that is available for the party is to apply
for review of the order.
5. Looking at Ext.P5 application, it is seen
that the petition was filed under Section 114 of
the CPC as well. The decided case laws show that
the court has power to review its own order
invoking the inherent power and restore the suit to
file permitting the plaintiff to pay deficit court
fee.
6. Even though the learned counsel for the
petitioner's argument is technically correct, in
the interest of substantial justice, I consider
that decision taken for brining suit back to file
was right. Considering the law, Ext.P6 order ought
to have been passed in exercise of power of review
under Section 151 of the CPC, I do not find any
substantial reason to interfere with the same.
In the result, original petition fails and it
O.P.(C)No.1336/2020
is dismissed.
All pending interlocutory applications will
stand closed.
Sd/-
T.V.ANILKUMAR,JUDGE
DST //True copy/
P.A.To Judge
O.P.(C)No.1336/2020
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE PLAINT IN
O.S.NO.33/2019 DATED 30.01.2019 FILED
BY THE RESPONDENT BEFORE THE HON 'BLE
MUNSIFF COURT,PALA.
EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT
DATED 15.10.2019 FILED BY THE
PETITIONER IN O.S.33/2019 BEFORE THE
HON'BLE MUNSIFF COURT,PALA.
EXHIBIT P3 A TRUE COPY OF THE MEMO DATED
03.12.2019 FILED BY THE COUNSEL FOR THE
RESPONDENT/PLAINTIFF IN O.S.NO.33/2019
BEFORE THE MUNSIFF COURT,PALA.
EXHIBIT P4 JUDGMENT DATED 03.12.2019 IN
O.S.NO.33/2019 OF THE MUNSIFF
COURT,PALA.
EXHIBIT P5 A TRUE COPY OF THE AFFIDAVIT AND
PETITION DATED 20.12.2019 FILED BY THE
RESPONDENT/PLAINTIFF IN O.S.33/2019 OF
THE HON'BLE MUNSIFF COURT,PALA.
EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 9.6.2020
IN I.A.NO.2441/2019 IN O.S.33/2019 OF
THE HON'BLE MUNSIFF COURT,PALA.
RESPONDENTS' EXHIBITS: NIL
