Roshan Kurian vs Mariyam Alias Pouly

C.Jayachandran, J

The petitioner herein is the plaintiff in O.S. No.215/2015 pending before the Principal Sub Court, Irinjalakuda. He is aggrieved by Ext.P5 order, which dismissed the review petition seeking review of an order rejecting the plaint for non-payment of balance court fee.

Heard the learned counsel for the petitioner and respondent.

Learned counsel for the petitioner submits that the entire balance court fee due, as per the unamended plaint has been paid by the petitioner/plaintiff and what was not paid was the additional court fee pursuant to amendment of the plaint for incorporating certain additional claims by way of interest. According to the learned counsel, I.A.No.2932/2019 seeking review of the order rejecting the plaint, which was filed within the stipulated time, ought to have been allowed and Ext.P5 is therefore flawed, warranting interference under Article 227 of the Constitution of India.

Per contra, this Original Petition is stiffly opposed by the learned counsel for the respondent. The first contention raised is that the instant Original Petition is not maintainable, since an order rejecting the plaint is a deemed decree appealable under Order XLI of C.P.C. It was also submitted that merely because a review was filed against an appealable decree, the remedy will not change. On merits, learned counsel would point out that the plaint was rejected vide Ext.P3 order on 9.10.2019 and Ext.P4 review application was filed on 26.10.2019. The review petition was dismissed on 14.01.2020 vide the impugned Ext.P5 order. A petition to restore the review petition was preferred on 26.07.2022, along with a petition to condone the delay of 875 days. However, the same was not pressed on 09.10.2023. It is thereafter that the instant Original Petition was filed, challenging Ext.P5 order.

Having heard the learned counsel appearing on both sides, this Court finds considerable merit in the objection preferred by the learned counsel for the respondent, both in the context of maintainability of the Original Petition, as also, on merits. Order 7, Rule 11(c) deals with rejection of the plaint for non-payment of court fee. Order 41 speaks of appeals from original decrees. Section 2(2) of the Code of Civil Procedure defines the term decree, which includes the rejection of the plaint. Since an order rejecting the plaint is a deemed decree, a regular appeal lies. The short point, which requires consideration is whether by filing a review of the order rejecting the plaint, whether the contemplated remedy of a regular first appeal will undergo any change. The issue fell for consideration of the Honourable Supreme Court in Rahimal Bathu and Others v. Ashiyal Beevi [AIR 2023 SC 5674], where the maintainability of a revision is seen considered, when the review of a decree sought for was dismissed. The legal position has been discussed thus in paragraph nos.24 and 25 of the judgment, which are extracted here below:

“24. What is clear from the above observations is, that where the review is allowed and the decree/order under review is reversed or modified, such an order shall then be a composite order whereby the court not only vacates the earlier decree or order but simultaneous with such vacation of the earlier decree or order, passes another decree or order or modifies the one made earlier. The decree so vacated, reversed or modified is then the decree that is effective for the purposes of a further appeal, if any, maintainable under law. But where the review petition is dismissed, there is no question of any merger and anyone aggrieved by the decree or order of the Tribunal or Court shall have to challenge within the time stipulated by law, the original decree and not the order dismissing the review petition. Time taken by a party in diligently pursuing the remedy by way of review may in appropriate cases be excluded from consideration while condoning the delay in the filing of the appeal, but such exclusion or condonation would not imply that there is a merger of the original decree and the order dismissing the review petition.

Apart from above, there is another reason also for a revisional court not to entertain a revision against an order rejecting on merits an application for review of an appealable decree, which is, if the revisional court sets aside or modifies or alters a trial court’s decree, the decree of the trial court would merge in the one passed by the revisional court. In consequence, the right of the party aggrieved by the trial court’s decree to file an appeal would get affected. Further, there may be a case where a person is aggrieved by a finding of the trial court on any issue, even though the trial court’s decree may be in its favour. In that scenario, if there is an appeal by a party aggrieved by the decree, that person would have a right to take an objection against the adverse finding with the aid of the provisions of Order XLI, Rule 22 of the CPC, but in the event of there being no appeal against the decree, such a person would lose its right to take an objection, under Order XLI, Rule 22 of the CPC, against that adverse finding."

(underlined by me for emphasise)

It is clear from the above extracted portion - particularly from the observations which are underlined above for emphasis - that there is no question of any merger, when the review petition is dismissed and a person aggrieved by the decree or the order shall have to challenge the original decree; and not the order dismissing the review petition. In the instant case, the order rejecting the plaint is a deemed decree as per Section 2(2) of the Code, which is appealable under Order XLI, Rule 1. This Court is of the opinion that the remedy contemplated from the dismissal of a suit by virtue of a decree, or for that matter a deemed decree, cannot be changed by merely asking for a review, by contending that the order dismissing the   review   petition   is   one   assailable under Article 227 of the Constitution of India.

On merits, this Court notice the impugned Ext.P5 Order was passed as early as on 14.01.2020, whereas the instant Original Petition is filed only on 17.08.2023, that is to say, after a lapse of 3 years and 7 months, for which delay, no explanation, whatsoever, is forthcoming.

In the circumstances, this Court finds that the Original Petition is not maintainable.

Accordingly, this Original Petition will stand dismissed.