Rejection of plaint for non-payment of court fee is a decree, allowing for review or appeal; hyper-technicality in proceedings is discouraged.

J U D G M E N T

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Petitioner, who is the plaintiff in O.S. No.203/2007 of the Subordinate Judge's Court, Irinjalakuda, has come up by challenging Ext.P4 order dated 26.07.2010 passed by the said court in I.A. No.4445/2008 in the said suit.

2. O.S. No.203/2007 was a suit for money filed by the petitioner herein as the plaintiff. The suit was posted on 22.10.2008 for the payment of balance court fee. On that day, the plaintiff was absent and there was no representation. As the balance court fee was not paid, the court below rejected the plaint through Ext.P2 judgment. Thereafter, on 21.11.2008, the petitioner paid the balance court fee and preferred I.A. No.4445/2008 for reviewing the judgment dated 22.10.2008.

3. The court below, through Ext.P4 impugned order, dismissed the I.A. on two grounds; that there was no error apparent on the face of the record so as to entitle the plaintiff to get the earlier judgment reviewed and that the court fee paid on the review petition was insufficient.

4. Heard the learned counsel for the petitioner and the learned counsel for the respondents.

5. The learned counsel for the petitioner has pointed out that a Division Bench of this Court inGopalan Nair Vs. Bhaskaran [ 2002 (1) KLT 251 ] had taken the view that the rejection of a plaint on account of the non-payment of court fee is a decree within the meaning of Section 2 (2) of the Code of Civil Procedure and, therefore, the only remedy available to such a plaintiff is to prefer an appeal or to seek a review of the judgment by making a proper approach before the trial court. In paragraph 7 of the decision in Gopalan Nair (supra), it was held:-

“We are of the view that once a plaint is rejected under O.7 R.11(c) of the Code of Civil Procedure for non payment of court fee, the remedy available to the plaintiff is only by way of an appeal or by way of a review and no application either under O.IX R.9 of the or under S.151 of the would lie to restore the suit.”

It seems that the Division Bench of this Court in Gopalan Nair (supra) has identified a review also as a remedy available to a plaintiff, whose suit was thrown to the dust bin on account of the non-payment of court fee.

6. InHaji Hassan Rawther Vs. Bulgheese Beevi [1971 KLT 613 (FB)], a Full Bench of this Court had held that the rejection of a plaint for non-payment of court fee is a decree within the meaning of Section 2 (2) of the C.P.C. and in such case, the remedy available to the party, whose plaint was rejected, is by way of an appeal. It seems that 2-3 decisions were rendered subsequently by Single Benches of this Court to the effect that an application under Order IX Rule 9 is maintainable in such cases. In the light of the decision inHaji Hassan Rawther (supra) rendered by the Full Bench of this Court, the said decisions of the Single Benches to the contrary are not legally sustainable. At the same time, by relying onHaji Hassan Rawther (supra) , it was held by a Division Bench of this Court in the decision reported inGopalan Nair (supra) that the remedy available to such a plaintiff is only by way of an appeal or by way of a review. Review is also identified as one of the remedies available to such a plaintiff.

7. In this particular case, it seems that within 30 days of the rejection of the plaint, the plaintiff had remitted the entire court fee, which is a substantial amount before the court below and filed the review petition for getting the earlier judgment reviewed. It seems that the main reason weighed with the court below to dismiss the said I.A. is that even sufficient court fee was not paid on that review petition.

Normally in the case of a review of a judgment, half the court fee payable for the suit has to be remitted. On that point, the learned counsel for the petitioner is relying on the decision of a Division Bench of this Court inThanappan Vs. Hassan Kappor [ 2003 (2) KLT 39 ]. In that case, an appeal was preferred on the rejection of a plaint on account