MATHUNNY PANICKER Vs. MARIAMMA KUNJAMMA

JUDGEMENT

(1.) The 1st defendant in O.S. No. 311 of 1974 on the file of Munsiff's Court, Kottarakkara is the revision petitioner. That was a suit filed by the respondent herein for a declaration of her alleged right and possession over the plaint schedule property on the basis of a will said to have been executed by her mother on 2-4-1965. The suit had been originally decreed in the plaintiff's favour on 18-1-1975 but that decree which had been passed ex parte was later set aside on the application of the defendants and the suit was restored to file. Subsequently, from the check slip submitted by the Court fee Examiner it was found that the court fee paid on the plaint was inadequate and in consequence the court be low called upon the plaintiff to make good the deficit court fee. Thereafter the suit stood posted to 18-11-1975 for payment of the additional court fee but on that date the plaintiff's advocate applied for an adjournment on the ground that the plaintiff was unwell and was hospitalised at Shencottah. The court, however, refused to grant the adjournment and rejected the plaint under O.7 R.11(c) of the Civil Procedure Code on the ground of non payment of the deficit court fee. On 18-12-1975 the plaintiff put in an application I. A. No. 1745 of 1975 under O.9 R.9, CPC. praying that the plaint which had been rejected for nonpayment of court fee as per the order dated 18-11-1975 may be restored to file in view of the facts and circumstances set out in the supporting affidavit. That application appears to have been opposed by the defendants only by urging that the explanation put forward by the plaintiff that she was prevented by illness from furnishing sufficient funds to her advocate for payment of the court fee within time was not established by proper or reliable materials. The lower court rejected the said contention put forward by the defendants and believed the version put forward by the plaintiff that she was bedridden at Shencottah during the relevant time and was thereby prevented from attending to the proper conduct of the case resulting in the rejection of the plaint. On the basis of the said finding the lower court allowed the petition and restored the suit to file in purported exercise of its power under O.9 R.9, CPC.

(2.) Counsel for the revision petitioner contends that the provisions of O.9 R.9, CPC. had no application at all to the case since the suit had not been dismissed for default of appearance and instead what bad transpired was that the plaint had been rejected under O.7 R.11(c) CPC. for nonpayment of the court fee within the time specified by the court On this basis it was urged on behalf of the revision petitioner that the proper remedy by the plaintiff was either to tile an appeal against the order rejecting the plaint or to seek a review of the order by making a proper motion before the lower court. We find there is force in this contention. As pointed out by Raman Nayar, J. (as he then was) in Eso Umman v. Gheevarghese. Abraham, 1959 KLT 1324 , O.9 R.9, CPC. can obviously have no application to a case where the plaint has been rejected for non payment of court fee under O.7 R 11(c), CPC. It must therefore be held that the Munsiff acted illegally and without jurisdiction in allowing the plaintiff's application to restore the suit to file under O.9 R.9, CPC. The order of the court below will accordingly stand set aside.

(3.) Counsel appearing for the respondent urged before us that the application I. A. No. 1745 of 1975 though filed by him under O.9 R.9 may be directed to be treated as a review petition and dealt with afresh on that basis and that his client is prepared to pay the requisite court fee on the said application treating it as a review petition. In the circumstances of the case we consider that this request is reasonable. Hence while setting aside the order sought to be revised we remit the matter to the court below with a direction that the petition I. A. No. 1745 of 1975 should be treated as a petition for review of the order dated 18-11-1975 rejecting the plaint for non payment of court fee. The above direction is subject to the condition that the. respondent herein the plaintiff should remit before the court below the deficit court fee payable on the said application on its being treated as a review application, within three weeks of the date of receipt of the records by the court below.