The Cochin Malabar Estate and Industries Limited vs DC School of Management and Technology

N.K. Balakrishnan, J.—Plaintiff is the appellant. The suit was for declaration of title over the plaint schedule property having an extent of 2.60 hectares in Survey No. 1154 of Vagamon Village and for recovery of possession of the said property. The defendant filed written statement denying the plaint averments. Balance court fee was not paid. Hence, the plaint was rejected for non-payment of balance court fee. The plaintiff thereafter filed an application to restore the suit to file. Later, realising the fact that a restoration petition is not maintainable as the plaint was rejected for non-payment of court fee, an application was filed to review the order rejecting the plaint along with an application to condone the delay in filing that petition. Learned Munsiff condoned the delay on terms. The cost was paid. The order rejecting the plaint was reviewed by the learned Munsiff. That was challenged by filing appeal under Sec. 96 of CPC. The order allowing the review petition is actually an appealable order as provided under Order XLIII Rule 1(w). The appellate court however reversed the order passed by the trial court. Consequently the suit stands dismissed for non-payment of the court fee.

Learned counsel for the appellant herein submits that the lower appellate court should not have approached the issue adopting a hyper technical view. Since the trial court has allowed the petition to condone the delay in filing the review petition and since the review petition was allowed by the trial court, it should not have been interfered with by the appellate court, the learned counsel submits.

The following substantial questions of law have been raised:-

(i) Whether the first appellate court was right in setting aside the orders passed by the Munsif''s Court, Peermade in I.A. No. 1177/2011 and I.A. No. 1178/2011 in O.S. No. 92/2008 on the files of that court ?

(ii) Whether the lower appellate court ignored the principles governing the adjudication of suits and was it not better for the lower appellate court to have allowed the appellant to prosecute the matter on merits ?

Learned counsel for the appellant submits that since the suit is for declaration of title and for recovery of possession of a property measuring 2.60 hectares, merely because the plaintiff/appellant could not pay the requisite balance court fee within time, the plaintiff should not have been non-suited so lightly. It is pointed out that because a wrong advice was given to the appellant to file a petition for restoration of the suit, such an unsustainable petition happened to be filed by the appellant. The plaintiff should not be non-suited for the improper legal advice obtained in the matter, the learned counsel submits. It is further submitted that a party does not know as to whether it is a review petition or restoration petition that has to be filed. When it was realised that a restoration petition is unsustainable, the party has chosen to file a review petition with a petition to condone the delay. The endeavour of the court should be to do substantial justice to the parties and not to throw out the suit at the very threshold, it is further argued. Since the trial court has exercised the discretion, allowing the application filed under Sec. 5 of the Limitation Act on payment of cost of Rs. 750/-, the lower appellate court should not have interfered with the same by upsetting the orders passed by the trial court, the learned counsel further submits. Learned counsel for the respondent submits that it is trite law that a restoration application was not maintainable when the plaint was rejected for non-payment of the court fee and that the application for review was filed after the earlier I.A. (application for restoration) was posted for evidence several times. It is true that the matter was not vigilantly prosecuted before the trial court. At the same time, considering all the aspects, I find that the discretion exercised by the trial court should not have been unsettled by the appellate court. It is true that sufficient cause must R.S.A. No. 1231 of 2013 be shown to condone the delay. Learned counsel further submits that the factors mentioned earlier would bespeak the sufficient reason for condonation of delay. Considering all the aspects, the substantial questions of law raised by the appellant are to be answered affirmatively.

In the result, this RSA is allowed. The learned Munsiff take up the suit on 17.12.2013. The parties will appear before that court through their counsel on that date. Learned Munsiff will dispose of the suit in accordance with law.