A review petition against a deemed decree rejecting a plaint is not maintainable, and the appellate remedy remains unaffected by the dismissal of the review.

The petitioner herein seeks review of this Court’s judgment dated 15.02.2024 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 Section 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).

4. Since it is specifically averred that the impact of the three decisions have not been considered by this Court, this Court will do that exercise as well.

5. The first decision is Sahasrabda Chits (P) Ltd. v. Sudeep & others [(2014) 4 KHC 67]. In that case filed under Article 227 of the Constitution, Ext.P4 order was under challenge, which dismissed an application for review on the premise that, there exists an error apparent on the face of the record and also that, court fee paid for the Review Petition was insufficient. A learned Single Judge of this Court held that, when the Court fee is paid within thirty days from the date of rejection, the application for review ought to have been considered by the trial court in favour of the petitioner therein. The principle held in Sahasrabda Chits (P) Ltd. (supra) is that, in a Review Petition, the petitioner shall not be saddled with the liability to pay half the ad valorem court fee. It was found by the learned Single Judge that the plaintiff in such a case will be put to severe financial loss. The dictum laid down by this Court in Thanappan v. Hassan Kappor [2003 (2) KLT 39] was followed. The said judgment is of little assistance insofar as the issue before this Court is concerned.

6. The second in line is a judgment of the Division Bench of this Court in Beena v. Kesavan [(2016) 3 KLT 117], wherein, the issue again was with respect to the rate at which court fee has to be paid in the appeal from a deemed decree, rejecting the plaint for non payment of balanc