COCHIN MALABAR ESTATE Vs. DC SCHOOL OF MANAGEMENT

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) The following substantial questions of law have been raised:-