Shiju vs Joy
2021 Latest Caselaw 784 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

            THE HONOURABLE MR. JUSTICE SATHISH NINAN

    FRIDAY, THE 8TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942

                     OP(C).No.1059 OF 2020

AGAINST THE ORDER DATED 09.07.2019 OF MUNSIFF'S COURT, CHALAKUDY
            IN IA 91/2019 & IA 92/2019 IN OS 74/2015

                             -----


PETITIONER/PETITIONER/PLAINTIFF:

             SHIJU
             AGED 41 YEARS
             S/O. VARGHEESE KARIYATTY, PARAKADAVU, KURUMASSERY
             VILLAGE, ALUVA TALUK.

             BY ADVS.
             SRI.LINDONS C.DAVIS
             SMT.E.U.DHANYA

RESPONDENT/RESPONDENT/DEFENDANT:

             JOY
             AGED 45 YEARS
             S/O. PAULOSE, THAKARAKKAL (H), THUMBARASSERY,
             KAKKULISSERY VILLAGE, CHALAKUDY TALUK,
             THRISSUR DISTRICT.

             R1 BY ADV. SRI.S.RENJITH
             R1 BY ADV. SRI.S.UNNIKRISHNAN (NELLAD)

     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                       SATHISH NINAN, J.
             ==================
                   O.P.(C) No.1059 of 2020
             ==================
             Dated this the 8th day of January, 2021

                                JUDGMENT

The suit for money, being part of sale

consideration, was rejected for non-payment of

balance court fee. The attempt of the petitioner-

plaintiff to have the suit restored back to file,

by seeking for a review of the order rejecting the

plaintiff, was unsuccessful, since the delay

petition was dismissed. There was a delay of 761

days in filing the application.

2. Heard learned counsel on either sides.

3. The advance sale consideration claimed to

have been paid is `5 lakhs, out of which the

receipt of `3 lakhs is stated to have been

admitted. The receipt of the remaining amount of `2 O.P.(C) No.1059 of 2020 :- 2 :-

lakhs, as claimed, is disputed. As to whether the

plaintiff is entitled for return of any amounts is

a matter to be adjudicated in the suit. The reason

stated for non-payment of the balance court fee is

financial difficulties and illness.

4. On the facts as noticed, it is only

appropriate to take a lenient view and grant an

opportunity to the plaintiff to have the lis

decided on merits. Of course, the inconvenience

caused to the respondent-defendant is liable to be

compensated by way of costs. Considering the extent

of the delay involved, I am of the opinion that an

amount of `25,000/- would be just and proper.

In the result, the original petition is

allowed. The orders impugned are set aside. The

applications will stand allowed and the suit OS O.P.(C) No.1059 of 2020 :- 3 :-

774/2015 of the Munsiff's Court, Chalakudy will

stand restored back to file on condition that, the

petitioner-plaintiff pays an amount of `25,000/- as

costs to the counsel appearing for the respondent-

defendant before this Court within a period of one

month from the date of receipt of a copy of this

judgment.

SATHISH NINAN JUDGE

kns/-

OP(C).No.1059 OF 2020

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 A COPY OF THE PLAINT FILED BY THE PETITIONER AS O.S.NO.774/2015 BEFORE MUNSIFF COURT, CHALAKUDY.

EXHIBIT P2 A COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT IN O.S.NO.774/2015 BEFORE THE MUNSIFF COURT, CHALAKUDY.

EXHIBIT P3 A COPY OF THE DELAY CONDONATION PETITION AS I.A.NO.91/2019 IN O.S.NO.774/2015 FILED BEFORE THE MUNSIFF COURT, CHALAKUDY.

EXHIBIT P4 A COPY OF THE REVIEW PETITION AS I.A.NO.92/2020 IN O.S.NO.774/2015 FILED BEFORE THE MUNSIFF COURT, CHALAKUDY.

EXHIBIT P5 A COPY OF THE ORDER DATED 09.07.2019 IN I.A.NO.91/2019 IN O.S.NO.774/2015 OF MUNSIFF COURT, CHALAKUDY.

EXHIBIT P6 A COPY OF THE ORDER DATED 09.07.2019 IN I.A.NO.92/2019 IN O.S.NO.774/2015 OF MUNSIFF COURT, CHALAKUDY.

-----