Cochin Kagaz Ltd. vs Bharath Cartons

K.K. Denesan, J.—The simple question that arises for consideration in this Civil Revision Petition is whether the Court which rejected the plaint for insufficient court-fee can review the order of rejection.

The above question has arisen in the following manner : The revision petitioner is the plaintiff in O.S. No. 328 of 2001 on the file of the Munsiff''s Court, Aluva. Issues were framed in the suit on 7-11-2002 and the plaintiff was ordered to pay the balance court-fee within 15 days. The suit was posted to 7-3-2003. The balance court-fee was Rs. 1360/-. According to the revision petitioner, due to a mistake in the calculation, an amount of Rs. 1090/- alone was paid towards balance court-fee, when the case was taken up on 7-3-2003, the Court below noticed that the entire balance court-fee was not paid by the revision petitioner. Though the deficient court-fee was paid by the plaintiff on 7-3-2003 itself, the learned Munsiff rejected the plaint by judgment dated 7-3-2003. I.A. No. 644 of 2003 was filed before the Court below by the revision petitioner/plaintiff on 17-3-2003 under Sections 149 and 151 and Order XLVII, Rule 1, CPC praying for a review of the judgment dated 7-3-2003. The learned Munsiff summarily dismissed the application for review as per Order dated 18-3-2003. Aggrieved, this Civil Revision Petition is filed.

Notice was served on the sole respondent who is the defendant in the suit. But, none appeared .

Heard the learned counsel for the revision petitioner.

Judgment dated 7-3-2003 passed in O.S. No. 328 of 2001 shows that the plaint was rejected under Order VII, Rule 11, CPC for the reason that the plaintiff failed to pay the balance court-fee. Plaintiff filed LA. No. 644 of 2003 "to review the order dated 7-3-2003 rejecting the plaint, by enlarging the time of payment of deficient court-fees which has already been paid on the date of rejection itself." The learned Munsiff dismissed the petition as not maintainable. Nothing is, however, stated in that order as to why a petition for review will not lie under Order XLVII, Rule 1, CPC against a judgment rejecting the plaint for non-payment of the court-fee within the time specified by the Court.

Order XLVII, Rule 1(1)(a) days that any person considering himself aggrieved by decree or order from which an appeal is allowed but from which no appeal has been preferred, and who, on account of some mistake or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. By rejecting the plaint, the Court which was exercising original jurisdiction has dismissed the suit, which dismissal amounts to a decree. Reliance may be placed on the observation contained in the judgment of the Division Bench of this Court in Maples v. Dolores, AIR 2001 Kerala 353 and P.V.R. Polyurethane Food (P) Ltd. v. Gita Bhargava and Ors. 133 (2006) DLT 58. . The main question that arose for consideration in Mable''s case (supra) was whether the Court can exercise its inherent power in a case where there is another remedy provided to the party by the Code. Balasubramanyan, J. as His Lordship then was, speaking for the Bench, observed that when a rejection of the plaint under Order VII, Rule 11(c) of the Code is a decree and the party has a substantive right to appeal u/s 96 of the CPC and, in cases where he is able to make out a case for a review under Order XLVII of the Code, the question of exercise of the inherent jurisdiction of the Court, normally does not arise.

Similar observations could be found in an earlier Bench decision of this Court in Mathunny Panicker v. Mariamma Kunjamma (1977 KLT 927) wherein the revision petitioner was one of the defendants who challenged the order passed by the lower Court allowing a petition filed under Order IX, Rule 9 of CPC. In that case also the plaint was rejected by the lower Court for non-payment of court-fee. Thereafter petition was filed for restoration of that suit and the lower Court restored the suit in purported exercise of its power under Order IX, Rule 9, CPC. Before the Division Bench it was contended on behalf of the revision petitioner in Mathunny Panicker''s case that proper remedy of the plaintiff was either to file an appeal against the order rejecting the plaint or to seek a review of the order by making a proper motion before the lower Court. The Division Bench found force in the above contention and remitted the matter to the court below with a direction that the interlocutory application should be treated as a petition for review of the order rejecting the plaint for non-payment of court-fee.

Section 96 of the Code provides that an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court, unless by express provision in the Code itself or any other law for the time being in force the said right is taken away. It therefore follows that the revision petitioner who was aggrieved by the rejection of his plaint can invoke the power, of the Court which rejected the plaint to review the judgment from which appeal lies, provided of course, there exists proper and sufficient reason.

I therefore hold that a review petition is maintainable against judgment dated 7-3-2003 in O.S. No. 328 of 2001 of the Court of the Munsiff, Aluva. The order dated 18-3-2003 in LA. No. 644 of 2003 in O.S. No. 328 of 2001 of the Munsiff''s Court, is, therefore, set aside. The review petition stands restored to the file of the lower Court with the direction to dispose of the same on merits. The C.R.P. is allowed. No cost.