Hussain Kunju v. Grigari Micheal and Annamma

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** ## **MONDAY, THE 13TH DAY OF FEBRUARY 2012/24TH MAGHA 1933** ## **RSA.NO. 1406 OF 2011 ( )** **-----------------------------------I.A. NO.2128 OF 2010 IN AS.271/2010 OF DISTRICT COURT, KOLLAM OS.233/2009 OF PRINCIPAL SUB COURT,KOLLAM** ## **APPELLANT(S)/APPELLANT/PLAINTIFF:** **---------------------------------------------------------** **HUSSAIN KUNJU, AGED 45 YEARS, S/O.MYTHEEN KUNJU, EX-GULF, KALEECKAL HOUSE MANAPPALLY NORTH P.O., PAVUMBA VILLAGE KARUNAGAPPALLY TALUK, KOLLAM.** ## **BY ADV. SRI.V.V.RAJA** ## **RESPONDENT(S)/RESPONDENTS/DEFENDANTS:** **----------------------------------------------------------------------** **1. GRIGARI MICHEAL, AGED 61 YEARS, KANAL BHAVANAM, VENGA MURI, MYNAGAPPALLY PIN-690 519.** **2. ANNAMMA, W/O. GRIGARY MICHEAL, KANAL BHAVANAM, VENGA MURI, MYNAGAPPALLY PIN-690 519.** ## **RR BY SMT.KEERTHI SOLOMON** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No.1406 of 2011 ==================================== Dated this the 13[th] day of February, 2012** ## **J U D G M E N T** Heard. Admit. 1. The following substantial questions of law are framed for a decision. (i) Was not the court below at error in holding that the appellant was bound to pay the entire ad valorem court fee even in a case where the plaint is rejected under Order VII Rule 11(b) of the Code of Civil Procedure? (ii) Has not the court below erred in not applying the ratio of the judgment in _Thankappan v. Hassan Kappor_ (2003 [2] KLT 39)? (iii) Was not the lower appellate court at error in not construing Section 5 of the Limitation Act liberally in order to do substantial justice to the parties? **R.S.A. No.1406 of 2011** -: 2 :- (iv) Did not the lower appellate court err in interpreting “sufficient” cause under Sec.5 of the Limitation Act without even affording an opportunity to the appellant to substantiate his case? 2. Respondents appear through counsel. 3. This appeal arises from the judgment and decree of the District Court, Kollam in A.S. No.271 of 2010 dismissing the appeal as barred by limitation consequent to the dismissal of I.A. No.2128 of 2010. 4. Appellant sued respondents for a decree for refund of advance money allegedly paid pursuant to an agreement for sale. Appellant claimed recovery of Rs.1,82,000/- with interest and costs. Respondents while resisting the suit made a counter claim for recovery of Rs.1,10,000/- by way of damages alleging that appellant has committed breach in performing his part of the contract. Trial court framed issues on 09.04.2010 and posted the case for payment of balance court fee on 14.06.2010. That day, it is contended, appellant requested time for payment of balance court fee but the request was rejected and consequently, plaint was rejected under Rule 11 of Order VII of the Code of Civil Procedure (for short, “the Code”). Treating rejection of the plaint ## **R.S.A. No.1406 of 2011** ## -: 3 :- as a 'decree', appellant preferred A.S. No.271 of 2010 in the District Court, Kollam with I.A. No.2128 of 2010 to condone the delay of 169 days. In the affidavit in support of the application appellant stated that he was laid up due to jaundice during the relevant time. He also pleaded that he was not able to raise funds necessary for payment of balance court fee in the appeal. 5. The application for condonation of delay was opposed by the respondents. They denied that appellant was laid up due to jaundice and contended that appellant was running jewellery shop at Manappally during the relevant time. 6. Before learned District Judge appellant produced Ext.A1, medical certificate dated 02.03.2011 to prove that he was undergoing treatment for the illness he pleaded in the affidavit. Learned District Judge was not very much impressed by Ext.A1, medical certificate and held that appellant by paying Rs.10/- as court fee in the appeal was attempting to tie down the respondents to a litigation with ulterior motive when he was liable to pay court fee many fold higher than Rs.10/- and hood winking the **c** ourt office with an application to condone the delay. Application was dismissed. Consequence was dismissal of the A.S. No.271 of 2010. Hence this appeal on the questions of ## **R.S.A. No.1406 of 2011** -: 4 :- law above framed. 7. Learned counsel for appellant contended that the first appellate court was under the wrong impression that ad valorem court fee was payable in the appeal notwithstanding that the appeal arose from a rejection of the plaint under Order VII Rule 11 of the Code. Learned counsel contended that this issue has been decided by the Division Bench of this Court in **Thankappan v.** **Hassan Kappor** (2003 [2] KLT 39). It is also contended by the learned counsel that Ext.A1 would show that appellant was undergoing treatment during the relevant time. In the circumstances first appellate court ought to have found that appellant was prevented by sufficient cause in not filing the appeal on time. 8. Learned counsel for respondents while asserting the arguments advanced in the first appellate court contended that there is no justification in the appellant delaying filing of the appeal. 9. As regards payment of court fee in an appeal arising from a rejection of plaint which comes within Section 2(2) of the Code, the Division Bench in **Thankappan v. Hassan Kappor** (supra) has held that it is not necessary to pay ad valorem court ## **R.S.A. No.1406 of 2011** ## -: 5 :- fee and that payment of Rs.10/- as per schedule II of Article 3(iii)A (1) of the Kerala Court Fees and Suits Valuation Ac is sufficient. It appears that the said decision of the Division Bench was not brought to the notice of the first appellate court. 10. Appellant also was in error in claiming that he was unable to raise the funds for payment of the balance court fee as if he was liable to pay ad valorem court fee when the court fee he was required to pay was only Rs.10/- as held by the Division Bench in the decision cited supra. 11. Then the question is whether claim of appellant that he was laid up due to jaundice is justifiable? Exhibit A1, medical certificate though the Medical Officer is said to have issued is not examined (learned counsel has given me a copy of Ext.A1, medical certificate for perusal) states that appellant was under treatment of the said Medical Officer from 05.04.2010 to 20.10.2010 for jaundice and that appellant was advised complete bed rest. 12. There is no reason to think that appellant has purposely delayed filing of the appeal when his claim for recovery of advance amount with interest was rejected and he has been made liable to pay Rs.1,10,000/- with interest on the counter ## **R.S.A. No.1406 of 2011** ## -: 6 :- claim. Having regard to the circumstances I am inclined to think that appellant has shown sufficient cause for not filing the appeal on time. 13. Now that I have found that there is sufficient cause for not filing the appeal on time, next question is whether the discretion to condone the delay has to be exercised in favour of the appellant. 14. It was for no fault of the respondents that filing of the appeal was delayed. Having regard to the circumstances stated I am inclined to think that the application to condone the delay could be allowed on condition that appellant pays costs to the respondents which having regard to the facts and circumstances of the case is fixed as Rs.5,000/-. 15. Substantial questions of law framed are answered as above. The Second Appeal is disposed of as under: (i) The Second Appeal will stand allowed, order dated 08.04.2011 on I.A. No.2128 of 2010, judgment and decree in A.S. No.271 of 2010 of the ## **R.S.A. No.1406 of 2011** ## -: 7 :- court of learned District Judge, Kollam will stand set aside and I.A. No.2128 of 2010 will stand allowed on condition that appellant pays/deposits in this Court for payment to the respondents Rs.5,000/- (Rupees Five thousand only) by way of costs within three weeks from this day. (ii) On such payment/deposit this Second Appeal and I.A. No.2128 of 2010 will stand allowed and A.S. No.271 of 2010 will be remitted to the court of learned District Judge, Kollam for hearing the appellant under Rule 11 of Order XLI of the Code. (iii) In case condition for payment/deposit of costs is not complied, this Second Appeal will stand dismissed in confirmation of the order on I.A. No.2128 of 2010 and judgment and decree in A.S. No.271 of 2010. (iv) On compliance with the condition ## **R.S.A. No.1406 of 2011** -: 8 :- mentioned above, and on remand of A.S. No.271 of 2010 appellant shall appear in the court of learned District Judge, Kollam on 15.03.2012. Post the Second appeal immediately on payment of costs or after three weeks from this day whichever is earlier. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv