K N MOHAN Vs. N V NALINAKSHAN

JUDGEMENT

(1.) This revision is directed against the order passed in I.A. No. 2352 of 2000 in O.S.No. 116 of 1999 on the file of the Munsiffs Court, Thalassery which was confirmed in C.M.A. No. 572 of 2001 on the file of the District Court, Thalassery.

(2.) I am sorry to note that both the Munsiff and the District Judge of Thalassery have decided the issue placed before them placing reliance on a decision of a learned single Judge of this Court in Varghese v. Devi Academy ( 1999 (1) KLT 440 ) which stood overruled by a Division Bench of this Court in Mable v. Dolores ( 2001 (2) KLT 612 ). The Division Bench rendered the judgment on 3.11.2000. Learned Munsiff passed the order on 10.4.2001 and the District Judge delivered the judgment on 22.6.2001. Judicial officers failed to take note of the fact that the decision they applied stood overruled by the Division Bench nor the counsel appearing before them pointed out that vital fact before the judicial officers. Litigants are put to considerable prejudice due to lack of upto date knowledge of case law on the point.

(3.) I may also refer to the facts and the legal issue involved in this case. O.S. No.116 of 1999 was a suit instituted by the respondent herein for realisation of an amount of Rs. 61,361/-. Claim was made on the basis of dishonoured cheque alleged to have been issued by the defendant. Defendant filed written statement denying execution of the cheque and his liability. Learned Munsiff was pleased to frame issues and the suit was posted for payment of balance court fee on 27.11.2000. Balance court fee was not paid and no application for extension of time was also made. Hence learned Munsiff rejected the plaint 27.11.2000. Plaintiff then filed I.A. No. 2352 of 2000 for restoration of the suit under O.9 R.4 read with S.151 of the Code of Civil Procedure. Defendant resisted the petition relying on the decision of a Division Bench of this Court in Mathunny Panicker v. Mariamma Kunjamma ( 1977 KLT 927 ). Objection raised by the defendant was accepted by the learned Munsiff and the Munsiff passed the following order: