ROSHANKURIAN Vs. MARIYAM

JUDGEMENT

(1.) The petitioner herein seeks review of this Court's judgment dtd. 15/2/2024 in O.P.(C.) No.1724/2023 which found that the Original Petition is not maintainable. In holding so, this Court notice that once the plaint is rejected under Order 7, Rule 11(c), the appellate remedy contemplated therefrom treating such rejection of the plaint as a deemed decree will not undergo any change merely because a Review Petition was filed against such rejection and the same was dismissed. This Court relied upon the judgment of the Hon'ble Supreme Court in Rahimal Bathu and others v. Ashiyal Beevi [AIR 2023 SC 5674].

(2.) Now, the review is sought for on the premise that a review is quite maintainable against a deemed decree rejecting a plaint; that rejection of plaint for non payment of court fee is only a deemed decree; and that the impact of the judgments of this Court in Sahasrabda Chits (P) Ltd. v. Sudeep & others [(2014) 4 KHC 67], K.M. Joy v. Princy Shaji [(2018) 2 KLT 364] and Beena v. Kesavan [(2016) 3 KLT 117] were not considered by this Court in dismissing the Original Petition vide the judgment under review.

(3.) Having heard the learned counsel for the review petitioner and the learned counsel for the respondent herein, it appears that the review petitioner missed the wood for the trees and that, he is misconceived. It is not by holding that the review is not maintainable as against rejection of plaint for non payment of court fee that the Original Petition was dismissed. Instead, the Original Petition took stock of the legal position that a review preferred from an order rejecting the plaint, which is a deemed decree in terms of Sec. 2(2) of the Code of Civil Procedure, will not substitute the appellate remedy available as against a decree. In other words, merely because a review application is filed and dismissed against an order rejecting the plaint, such remedy available in law will not undergo any change, wherefore an Original Petition under Article 227 of the Constitution is not the appropriate remedy. Instead, the remedy should be one provided under Order 41, Rule 1. This aspect has been specifically held by the Hon'ble Supreme Court in Rahimal Bathu (supra) and taking stock of the same, this Court held that the Original Petition filed under Article 227 is not maintainable. The grounds raised in this Review Petition are not liable to be recognised in teeth of the said findings of this Court based on Rahimal Bathu (supra).