(2013) 299 KLR 393

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

WEDNESDAY, THE 20TH DAY OF MARCH 2013/29TH PHALGUNA 1934

OP(C).No. 1079 of 2013 ()

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PETITIONER(S) :

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1. BROOK SIDE RESIDENCY-REPRESENTED BY BABU C.GEORGE

MANAGING DIRECTOR, M/S. BROOK SIDE RESIDENCY

POTHAMEDU, MUNNAR.

2. BABU C.GEORGE

S/O. GEORGE, MANAGING DIRECTOR

M/S. BROOK SIDE RESIDENCY, POTHAMEDU, MUNNAR.

3. REKHA C.BABU, DIRECTOR,

M/S. BROOK SIDE RESIDENCY, POTHAMEDU

MUNNAR.

BY ADV. SRI.P.K.BABU

RESPONDENT(S) :

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1. STATE OF KERALA

REPRESENTED BY ITS CHIEF SECRETARY

GOVERNMENT OF KERALA, SECRETARIAT

THIRUVANANTHAPURAM-695 001.

2. THE PRINCIPAL SECRETARY

DEPARTMENT OF REVENUE, GOVERNMENT OF KERALA

THIRUVANANTHAPURAM-695 001.

3. THE SUB COLLECTOR, DEVIKULAM, PIN-685 613.

4. TAHSILDAR, DEVIKULAM, PIN-685 613.

5. DISTRICT COLLECTOR, IDUKKI, PAINAVU, PIN-685 603.

R BY SPECIAL GOVERNMENT PLEADER SMT. SUSHEELA BHAT

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BP OP(C).No. 1079 of 2013 ()

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APPENDIX

PETITIONER(S)' EXHIBITS

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·         EXT.P1 : COPY OF THE MEMORANDUM OF MTOP NO.42 OF 2011 DTD.8.3.2012 FILED BEFORE THE MUNNAR TRIBUNAL, MUNNAR.

·         EXT.P2 : COPY OF THE IA NO.171/2012 IN MTOP NO.42 OF 2011 DTD.22.11.2012 FILED BY THE PETITIONERS BEFORE THE MUNNAR TRIBUNAL.

·         EXT.P3 : COPY OF THE ORDER IN IA NO.171/2012 IN MTOP NO.42/2011 DTD.7.12.2012.

·         EXT.P4 : COPY OF THE JUDGMENT IN MTOP NO.42 OF 2011, DTD.7.12.2012.

RESPONDENT(S)' EXHIBITS :

·         NIL.

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//TRUE COPY//

P.A. TO JUDGE BP

THOMAS P. JOSEPH, J.

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Original Petition (civil) No. 1079 of 2013

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Dated this the 20th day of March, 2013

Constitution of India, 1950 – Article 227 - Kerala Munnar Special Tribunal Act, 2010 – Section 9 - Decision of the Tribunal - Appeal by the Government or any person - within 60 days from the date of decision – High court shall entertain an appeal under sub.sec.(1) of Sec.9 only if there is a substantial question of law involved and shall not entertain an appeal based on factual aspects alone. In this case, no substantial question of law is involved since rejection of the plaint is for non-payment of balance court fee within the time prescribed. That is based on the factual aspect alone. Hence an appeal is not maintainable. Therefore also, petitioners are entitled to challenge the impugned judgment under Article 227 of the Constitution.

JUDGMENT

Ext.P4, judgment of the Munnar Tribunal, Munnar (for short "the Tribunal") rejecting the plaint (obviously under Order VII, Rule 11(b) of the Code of Civil Procedure) is under challenge in this original petition filed under Article 227 of the Constitution.

2. Petitioners/plaintiffs filed the suit in the year, 2007 claiming damages to the tune of Rs.12.35 crores from the respondents for their (alleged) illegal acts. The suit was later transferred to the Tribunal. Petitioners did not pay the balance court fee. Petitioners filed I.A. No. 171 of 2012 requesting for time to pay the balance court fee. The Tribunal rejected that application and by the impugned judgment, rejected the plaint for non payment of balance court fee.

3. Learned Special Government Pleader for respondents has raised objection as to the maintainability of a petition under Article 227 of the Constitution. It is argued that under Sec.9 of the Munnar Special Tribunal Act, 2010 (for short "the Act") an appeal is provided to this court against decision of the Tribunal within 60 days from the date of decision. Petitioners may not be permitted to circumvent the said provision by invoking Article 227 of the Constitution, it is argued.

4. Sec.9 (1) of the Act provides for an appeal by the Government or any person objecting to the decision of the Tribunal within 60 days from the date of such decision and such appeal is to be preferred before this court. The proviso thereto says that this court shall entertain an appeal under sub.sec.(1) of Sec.9 only if there is a substantial question of law involved and shall not entertain an appeal based on factual aspects alone. The right of appeal conferred by Sec.9 of the Act is circumscribed by the proviso that appeal is provided only when there is a substantial question of law and further, an appeal is precluded when it is based on factual aspects alone. In this case, no substantial question of law is involved since rejection of the plaint is for non-payment of balance court fee within the time prescribed. That is based on the factual aspect alone. Hence an appeal is not maintainable. Therefore also, petitioners are entitled to challenge the impugned judgment under Article 227 of the Constitution.

5. Learned counsel for petitioners contends that challenging resumption of land and building petitioners have filed W.P.(C) No. 18323 of 2007 and that writ petition is pending decision in this court. According to the learned counsel, the decision in that writ petition has great bearing on the claim made by the petitioners in the Tribunal. Learned counsel requested that petitioners may be granted three months' time for payment of balance court fee. Learned Special Government Pleader has contended that the suit is of the year, 2007 and for the last 6 years petitioners had time to pay the balance court fee.

6. Having heard learned counsel for petitioners and the learned Special Government Pleader, I do not find any justification in waiting till final decision in W.P.C. No. 18323 of 2007. Balance court fee in the original petition has to be paid within the prescribed time. True it is within the power of the court to grant extension having regard to the fact situation.

7. Having regard to the circumstances stated, I am inclined to grant two months time to pay the balance court fee.

Resultantly, this original petition is allowed as under:-

1) Ext.P3, order dated 07.12.2012 in M.T.O.P. No. 42 of 2011 and Ext.P4, judgment dated 07.12.2012 in M.T.O.P. No. 42 of 2011 of the Munnar Special Tribunal, Munnar are set aside.

2) M.T.O.P. No. 42 of 2011 is remitted to the said Tribunal for fresh decision.

3) Petitioners are granted two months time from this day to pay the balance court fee.

4) In case balance court fee is not remitted within the aforesaid time, consequence provided under Rule 11(b) of Order VII of the Code would follow.

Sd/-

THOMAS P. JOSEPH,

JUDGE smv //True copy//

P.A to Judge