SUDHAKARAN Vs. POOVERI NANU

JUDGEMENT

(1.) The appeal was rejected under Order VII Rule 11 C.P.C. on the ground that the court fee was not paid in time. Subsequently, the petitioner came up with the present review petition after remitting the entire balance court fee payable.

(2.) The application is objected by the respondent that there is no apparent error, much less any such ground for allowing the review petition. But, in so far as the rejection of plaint under Order VII Rule 11 C.P.C. is concerned, there is no provision for filing an appeal under the Code of Civil Procedure. Necessarily, the scope of review has to be considered under the given circumstances in relation to the absence of remedy by way of an appeal. Sec. 114 C.P.C. is so elaborate to bring up any matter within its scope so as to advance justice, but within the parameters of clause (a) to (c) of that Sec. . It is under Order XLVII C.P.C., the principle of apparent error, mistake on the face of record and failure to exercise due diligence were incorporated supplemented by "any other sufficient reason" so as to exhaust the remedy by way of review. Necessarily, it would fall under the broad spectrum of advancement of justice when the party is left out without any relief of appeal. Further, it is not the way in which an application was submitted by quoting a wrong provision or misquoting a provision that matters in relation to administration of justice, but the necessity in the interest of justice. Hence, it is not permissible for the court to insist for an application to restore the suit when there is an order rejecting the plaint under Order VII Rule 11 C.P.C.. The rejection of a suit under Order VII Rule 11 C.P.C. will not come under the purview of Order IX C.P.C., hence, there is no scope of exhausting the remedy by way of a restoration application. The proper remedy available is under Sec. 114 read with Order XLVII C.P.C. by way of review. This Court in Girija Vallabhan v. J.B.J. Plantation Pvt. Ltd. and Others (2012 (2) KHC 431) had considered the application of review on rejection of plaint under Order VII Rule 11 C.P.C. on the ground of nonpayment of balance court fee and laid down that the court is empowered to examine and pass appropriate orders in accordance with equity and justice and that there is no hindrance for consideration of review application by virtue of the time limit fixed under any of the law in force. Subsequently, the very same issue came up before the Apex Court in Raju Thomas and Others v. Devu and Others [(2019) 14 SCC 611] and answered positively. Going by the legal position settled above and in view of payment of entire court fee, it is fit and proper to condone the laches. Hence, the review will stand allowed. The earlier order rejecting the appeal memorandum under Order VII Rule 11 C.P.C. will stand set aside. The appeal is restored to file. Post the appeal on 22/02/2023.