Kerala High Court
Kannamalil Chacko Mathew @ C.K. ... vs Thrivikraman Thampi on 24 March, 2023
OP(C) NO. 754 OF 2023
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
OP(C) NO. 754 OF 2023
AGAINST OS 330/2012 OF SUB COURT, MAVELIKKARA
PETITIONER/PLAINTIFF:
KANNAMALIL CHACKO MATHEW @ C.K. MATHEW
AGED 67 YEARS,
THEKKE KANNAMALIL HOUSE, PANDANKARY, EDATHUA,
ALAPPUZHA DISTRICT, RESIDENT OF FLAT NO.36,
BUILDING NO.303, CENTRAL RAILWAY, HOSPITAL
COMPOUND, BYCULA, MUMBAI, PIN-400027, MAHARASHTRA
STATE, NOW RESIDING AT ARHANT ARHAM CO-OPERATIVE
HOUSING SOCIETY, KOPROLI, BUILDING NO.B-7, FLAT
NO.101, NEW PANAVEL, RAIGARH DISTRICT, MAHARASHTRA
STATE, PIN - 410206
BY ADVS.
C.S.MANU
DILU JOSEPH
C.A.ANUPAMAN
T.B.SIVAPRASAD
C.Y.VIJAY KUMAR
MANJU E.R.
ANANDHU SATHEESH
ALINT JOSEPH
RESPONDENT/RESPONDENT:
THRIVIKRAMAN THAMPI
AGED 67 YEARS
AMBADIYIL HOUSE, PUTHIYADAM P.O, KAYAMKULAM,
ALAPPUZHA DISTRICT, PIN - 690502
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
24.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 754 OF 2023
2
JUDGMENT
The original petition is filed challenging Ext.P4 order
dated 12.8.2016 passed in I.A No.48/2016 in O.S
No.330/2012 by the Court of the Subordinate Judge,
Mavelikara.
2. On a perusal of Ext.P4 order, it is seen that I.A
No.48/2016 is a review petition filed by the petitioner
challenging the order rejecting the plaint for non-
payment of court fee.
3. Indisputably, an order rejecting a plaint for
non-payment of court fee is a decree under Section 2 (2)
of the Code of Civil Procedure. Notwithstanding the
order being a decree, the petitioner chose to file a
review petition by way of I.A No.48/2016, which is
perfectly maintainable. However, the court below,
finding that there is no error in the order rejecting the
OP(C) NO. 754 OF 2023
plaint for non-payment of court fee, dismissed the review
petition.
4. In DSR Steel (P) Ltd v. State of Rajasthan
and others [2012 (6) SCC 782], the Hon'ble Supreme
Court has categorically held that there is no merger of
an order dismissing a review petition with the original
order. When a review petition is dismissed, then the
remedy of the aggrieved party is to challenge the
original order and not the order in the review petition.
5. In addition to the above, it is seen that Ext.P4
order was passed as early as on 12.8.2016, i.e., nearly
seven years back.
6. In Bithika Mazumdar v. Sagar Pal and
others [2017 (2) KHC 153], the Hon'ble Supreme Court
has held that even though there is no prescribed time
period to file an original petition under Article 227 of the
Constitution of India, the challenge has to be made
within a reasonable time period.
OP(C) NO. 754 OF 2023
7. In the case on hand, the explanation putforth by
the petitioner is not at all convincing and sufficient to
condone the inordinate delay of nearly seven years.
In the above legal and factual conspectus, I am not
inclined to entertain the original petition. The original
petition is merit-less and is consequently dismissed.
Sd/-
C.S.DIAS
ma/24.3.2023 JUDGE
OP(C) NO. 754 OF 2023
APPENDIX OF OP(C) 754/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PLAINT IN O.S. NO.
330/2012 ON THE FILES OF THE SUB COURT,
MAVELIKKARA
Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT DATED
9-1-2015 FILED BY THE RESPONDENT IN O.S.
NO. 330/2012 ON THE FILES OF THE SU
COURT, MAVELIKKARA
Exhibit P3 TRUE COPY OF I.A NO.48 OF 2016 IN O.S
NO.330 OF 2012 ON THE FILE OF THE SUB-
COURT, MAVELIKKARA FILED BY THE
PETITIONER
Exhibit P4 TRUE COPY OF THE ORDER DATED 12-8-2016 IN
I.A NO.48 OF 2016 IN O.S NO.330 OF 2012
PASSED BY THE SUB-COURT, MAVELIKKARA
