Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 24TH DAY OF AUGUST 2023 / 2ND BHADRA, 1945 F.A.O. NO. 84 OF 2023 AGAINST THE ORDER DATED 24.01.2022 IN I.A.NO.10 OF 2021 IN O.S.NO.21 OF 2018 OF SUB COURT, KARUNAGAPPALLY APPELLANT/PETITIONER/PLAINTIFF: RAJENDRAN, AGED 76 YEARS, S/O GOVINDAN, AMPADIYIL VEEDU, ARINALLOOR MURI, THEVALAKKARA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT, PIN - 691307. BY ADVS. JOSEPH GEORGE P.A.REJIMON NIKITA NAIR C.S. SAJEEV JOHN T. RESPONDENT/RESPONDENT/DEFENDANT: PRADEEP, AGED 48 YEARS, S/O CHELLAPPAN, CHANDRAVILASATH, KOTHAPURAMURI, WEST KALLADA P.O & VILLAGE, KOLLAM DISTRICT, PIN - 691500. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 24.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
P.G. Ajithkumar, J.
The plaintiff in O.S.No.21 of 2018 before the Sub Court,
Karunagappilly is the appellant. He is aggrieved by the order
in I.A.No.10 of 2021, which he had filed under Order IX, Rule 9 of the Code of Civil Procedure, 1908 seeking to restore the suit that was dismissed for non-payment of the court fees.
2. There was a delay of 442 days in filing this appeal. As per the order dated 23.08.2023 in C.M.Appl.No.1 of 2023, the delay was condoned. Despite giving notice, the respondent did not choose to appear before this court.
3. Heard the learned counsel appearing for the appellant.
4. The appellant filed O.S.No.21 of 2018 for a decree
of realisation of money. The suit was listed on 03.04.2021 for making payment of the balance court fees due on the plaint; since 1/10th court fees was alone paid at the time of institution. The appellant failed to make payment of the balance court fees and therefore the suit was dismissed for default on the said date. The learned counsel appearing for
the appellant would submit that the request of the appellant to grant some more time to make payment of the balance court fees was rejected by the court below and consequently the suit was dismissed. The court below stated in the impugned order that 30 days more time was granted for making payment of the court fees, but the appellant failed to remit and in such circumstances, there was no other go, but to dismiss the suit. In I.A.No.10 of 2021 also, the same stand was taken and consequently that petition was dismissed by the court below.
5. The appellant would submit that being a person
aged 75 years at that time, having many ailments, his request for more time should have been granted by the court below. This is not a case where there occurred inordinate delay on the part of the appellant. When the respondent/defendant filed written statement contesting the plaint, issues were framed by the court and therefore the appellant was obliged to remit the balance court fees within the time prescribed or the extended time. If the court fees is not paid within time, the option for the court was not to dismiss the suit for default,
but rejection of the plaint under Order VII, Rule 11(c) of the Code. Therefore, the order dismissing the suit for default was not strictly legal. That apart, when sufficient reasons are furnished, the court has to consider the request on its merits; since power for enlargement of time for remitting balance court fees is invested in court under Section 149 of the Code. It is seen that without considering the matter in its proper perspective, the court below proceeded to dismiss the suit for default. In a peremptory manner dismissed I.A.No.10 of 2021
also. We are therefore of the view that the impugned order
dated 24.01.2022 dismissing I.A.No.10 of 2021 is liable to be set aside.
6. In Maya Rani v. Aboobacker Siddique [2022
(1) KLJ 94 : 2021 (5) KLT OnLine 1052] this Court held
that,-
“21. Section 149 of the Code of Civil Procedure deals with power to make up deficiency of court fees. As per Section 149, where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole
or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.”
7. In view of the aforesaid position of law, we are of the view that the court below can be directed to restore O.S.No.21 of 2018 on file if the appellant remits the balance court fees within a reasonable time.
8. Accordingly, this appeal is allowed. The order dated
24.01.2022 in I.A.No.10 of 2021 in O.S.No.21 of 2018 of the Sub Court, Karunagappally is set aside. The appellant shall remit the balance court fees within two weeks from the date of getting a certified copy of this judgment. On such payment I.A.No.10 of 2021 will stand allowed and the Sub Court, Karunagappally will proceed with the said suit in accordance with law.
Sd/- ANIL K. NARENDRAN, JUDGE Sd/- P.G. AJITHKUMAR, JUDGE dkr APPENDIX OF FAO 84/2023 PETITIONER ANNEXURES Annexure A-1 COPY OF DAILY STATUS DATED 31-08-2018 IN O.S NO: 21/2018 OF THE SUB COURT KARUNAGAPPALLY