MAYA RANI Vs. PARAMBATHUPADI ABOOBACKER SIDDIQUE

JUDGEMENT

(1.) The appellants are the plaintiffs in O.S.No.18 of 2018 on the file of the Sub Court, Chengannur, a suit filed for cancellation of a power of attorney allegedly created by the respondent herein-defendant, appointing the 2nd plaintiff as the power of attorney holder of the 1st plaintiff for cancellation of release deed No.4369/2005 and sale deed No.4371/2015 of the Sub Registrar Office, Alappuzha; and for a permanent prohibitory injunction. The suit was instituted by paying one-tenth of the court fee, as provided under Sec. 4A of the Kerala Courts Fees and Suits Valuation Act, 1959. On receipt of notice in the suit the defendant entered appearance and filed written statement, along with counter claim. On 9/7/2019, the suit was posted for remitting the balance court fee. On that day, there was no representation for the plaintiffs and the balance court fee was also not paid. Therefore, the Sub Court rejected the plaint for non-payment of the balance court fee, by the judgment dtd. 9/7/2017. Seeking review of that judgment the plaintiffs filed I.A.No.286 of 2019, invoking the provisions under Order XLVII Rule 1 of the Code of Civil Procedure, 1908, along with I.A.No.285 of 2019 seeking condonation of delay of 24 days in filing the application for review. Those interlocutory applications were rejected by a common order dtd. 30/9/2019. Thereafter, the plaintiffs filed R.P.No.3 of 2020 in O.S.No.18 of 2018 under Order XLVII Rule 1 of the Code seeking review of the said order, along with I.A.No.1 of 2020 seeking an order to condone the delay of 457 days in filing that review petition. R.P.No.3 of 2020 and also I.A.No.1 of 2020 were dismissed by a common order dtd. 23/2/2021 of the Sub Court. Thereafter, the plaintiffs filed this appeal, invoking the provisions under Order XLI, Rule 1, read with Sec. 96 of the Code, challenging the judgment of the Sub Court dtd. 9/7/2019, whereby the plaint in O.S.No.18 of 2018 was rejected for non-payment of the balance court fee and also on account of no representation for the plaintiffs.

(2.) On 9/7/2021 in C.M.Application No. 1 of 2021 filed in this appeal for condonation of delay, this Court issued urgent notice by speed post to respondent-defendant, returnable within three weeks. On 30/7/2021, the respondent entered appearance through counsel and sought time to re-present the counter affidavit, after curing the defects. Both sides have filed interlocutory applications, invoking the provisions under Order XLI, Rule 27 of the Code to accept additional documents. The plaintiffs have filed reply affidavit dtd. 6/9/2021, which was followed by an additional counter affidavit filed by the defendant. The learned counsel for the appellants-plaintiffs have also submitted a written submission.

(3.) Today, by a separate order in C.M.Appln.No.1 of 2021, we have condoned the delay of 159 days in filing this appeal. The learned counsel on both sides agreed that this appeal can be finally heard in the admission stage.