A,R. Lakshmanan, J.

Heard Mr. B.N. Shiv Shankar and Mr. O. Bala Narayanan for the respective petitioners, Smt. V.P. Seemandini and Mr. M.S. Unnikrishnan for 1st respondent in O.P. 19891/1998 and the Government Pleader for the respondents in O.P. 19892/1998. In view of the great public importance of the matter, we requested Mr. T.P. Kelu Nambiar, Sr. Advocate to assist the Court on the legal issue raised in these writ petitions. Accordingly, he was also heard.

2. O.P. 19891/1998 was filed by one P.P. Aravindakshan and one O. Bala Narayanan, Advocate, who are the plaintiffs in a suit (un-numbered) for recovery of a liquidated demand in money, amounting to Rs. 20.000/-, with future interest arising from a written contract against one K. Sukumaran as the defendant. The suit was filed invoking the summary procedure under O. XXXVII of the Code of Civil Procedure, which provisions were introduced so far as the State of Kerala is concerned by the substitution of O. XXXVII by the Code of Civil Procedure Amendment Act, 1976, which came into effect on 1.2.1977. The suit was filed in the Court of the Principal Munsiff, Ernakulam. The office of the Principal Munsiff refused to number the plaint and returned the same for curing certain defects. The defects pointed out are:

(1) In as much as Kerala is concerned O. XXXVII of CPC stands omitted as per notification in K.G. No. 23 dated 9.6.1959; and

(2) No petition is filed to receive the photocopy of documents produced.

The plaint was re-presented with classification. In regard to the objections, the clarification was not accepted. The clarification was given in the following manner:

"The notification deleting 0.37 is dated 9.6.59. Thereafter the Code of Civil Procedure Amendment Act, 1976 was passed became law which substituted a new 0.37. Therefore, since it extends to the whole of India 0.37 became law in force in Kerala also on the date the 1976 Amendment Act came into force. The notification dated 9.6.59 cannot prevent the Parliament from enacting Amendment Act 1976 nor can the 1959 notification repeal or annul the 1976 Amendment made years later. As a matter of fact, the position has been noticed by the Rule Committee of the High Court which has recently recommended deletion of 0.37 by exercise of power under S.122 CPC and it has not been decided by the High Court nor notified. The suit of summary nature is perfectly and correctly filed".

3.According to the petitioners, the plaint has complied with all the relevant provisions of O. XXXVII Rr.1 and 2 and summons as prescribed in R.3 have also been filed. When the matter was posted before the Munsiff, it was argued by the counsel. However, the learned Munsiff rejected the plaint by passing Ext. P1 order dated August 24,1998. The order reads thus:

"The plaint is seen preferred under O. XXXVII of the CPC, which as per notification in K.G. dated 9.6.1959 has been omitted in as much as the State of Kerala is concerned. It's true that notification is prior to the C.P.C. (Amendment) Act 1976.

However in my view of this matter the notification vis-a-vis the CPC (Amendment) Act 1976 has to stand, for the omission cannot be said to have brought to being an inconsistency with respect to the provisions of the Principal Act, as amended, within the comprehension of S.97(1) of the Amendment Act.

The plaint is thus rejected under O. VII R.11(d) of the CPC.

Sd/

Principal Munsiff

4. Aggrieved against the rejection of the plaint, O.P. 19891/1998 was filed for the following reliefs:-"A. Call for the records of the case and peruse them.

B.Issue an appropriate Order declaring that 0.37 of the Code of Civil Procedure as substituted by the Code of Civil Procedure (Amendment) Act, 1976 is in force in Kerala with effect from 1.2.1977 and continues in force.

C. Issue an appropriate Order or writ quashing or setting aside the judgment and decree or order dated 24.8.98 rejecting the plaint in the un-numbered Original Suit filed by P.P. Aravindakshan and another as pl