Maya Rani @ Maya and Swapna Harinarayanan v. Parambathupadi Aboobacker Siddique @ Aboobacker Siddique

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 29[TH] DAY OF SEPTEMBER 2021/7TH ASWINA, 1943** **R.F.A.NO.104 OF 2021** **AGAINST THE JUDGMENT DATED 09.07.2019 IN O.S.NO.18 of 2018 OF THE SUB COURT, CHENGANNUR, ALAPPUZHA** ## **APPELLANTS/PLAINTIFFS:** **1 MAYA RANI @ MAYA, AGED 67 YEARS W/O. LATE BALACHANDRAN PILLAI, RESIDING AT SREEVILASATHU VEEDU, STORE JUNCTION, MANNAR, KURITTISSERY VILLAGE, CHENGANNUR TALUK, PIN - 689 622.** **2 SWAPNA HARINARAYANAN, AGED 44 YEARS W/O. HARINARAYANAN, HAVING PERMANENT ADDRESS AT SREEVILASATHU VEEDU, STORE JUNCTION, MANNAR, KURITTISSERY VILLAGE, CHENGANNUR TALUK, PIN - 689 622.** **BY ADV JOLLY JOHN** ## **RESPONDENT/DEFENDANT:** **PARAMBATHUPADI ABOOBACKER SIDDIQUE @ ABOOBACKER SIDDIQUE, AGED 65 YEARS** **S/O. K. P. AHAMMED, BUSINESS BY PROFESSION, RESIDING AT 'SEASHORE', NEAR MUNICIPAL STADIUM, THALASSERY - 670 101, THALASSERY VILLAGE AND THALASSERY TALUK, KANNUR DISTRICT.** **BY ADVS. T.ASAFALI LALIZA.T.Y.** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 29.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.F.A.No.104 of 2021 -2- ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellants are the plaintiffs in O.S.No.18 of 2018 on the file of the Sub Court, Chengannur, a suit filed for cancellation of a power of attorney allegedly created by the respondent herein-defendant, appointing the 2[nd] plaintiff as the power of attorney holder of the 1[st] plaintiff for cancellation of release deed No.4369/2005 and sale deed No.4371/2015 of the Sub Registrar Office, Alappuzha; and for a permanent prohibitory injunction. The suit was instituted by paying one-tenth of the court fee, as provided under Section 4A of the Kerala Courts Fees and Suits Valuation Act, 1959. On receipt of notice in the suit the defendant entered appearance and filed written statement, along with counter claim. On 09.07.2019, the suit was posted for remitting the balance court fee. On that day, there was no representation for the plaintiffs and the balance court fee was also not paid. Therefore, the Sub Court rejected the plaint for non-payment of the balance court fee, by the judgment dated 09.07.2017. Seeking review of that judgment the plaintiffs filed I.A.No.286 of 2019, invoking the provisions under Order XLVII Rule 1 of R.F.A.No.104 of 2021 -3- the Code of Civil Procedure, 1908, along with I.A.No.285 of 2019 seeking condonation of delay of 24 days in filing the application for review. Those interlocutory applications were rejected by a common order dated 30.09.2019. Thereafter, the plaintiffs filed R.P.No.3 of 2020 in O.S.No.18 of 2018 under Order XLVII Rule 1 of the Code seeking review of the said order, along with I.A.No.1 of 2020 seeking an order to condone the delay of 457 days in filing that review petition. R.P.No.3 of 2020 and also I.A.No.1 of 2020 were dismissed by a common order dated 23.02.2021 of the Sub Court. Thereafter, the plaintiffs filed this appeal, invoking the provisions under Order XLI, Rule 1, read with Section 96 of the Code, challenging the judgment of the Sub Court dated 09.07.2019, whereby the plaint in O.S.No.18 of 2018 was rejected for non-payment of the balance court fee and also on account of no representation for the plaintiffs. 2. On 09.07.2021 in C.M.Application No. 1 of 2021 filed in this appeal for condonation of delay, this Court issued urgent notice by speed post to respondent-defendant, returnable within three weeks. On 30.07.2021, the respondent entered appearance through counsel and sought R.F.A.No.104 of 2021 -4- time to re-present the counter affidavit, after curing the defects. Both sides have filed interlocutory applications, invoking the provisions under Order XLI, Rule 27 of the Code to accept additional documents. The plaintiffs have filed reply affidavit dated 06.09.2021, which was followed by an additional counter affidavit filed by the defendant. The learned counsel for the appellants-plaintiffs have also submitted a written submission. 3. Today, by a separate order in C.M.Appln.No.1 of 2021, we have condoned the delay of 159 days in filing this appeal. The learned counsel on both sides agreed that this appeal can be finally heard in the admission stage. 4. Heard the learned counsel for the appellantsplaintiffs and also the learned counsel for the respondentdefendant. 5. The appellants-plaintiffs filed O.S.No.18 of 2018 before the Sub Court, Chengannur, on 18.12.2018. They filed O.S.No.18 of 2018 paying one-tenth of the court fee, under Section 4A of the Kerala Court Fees and Suit Valuation Act, 1959. According to the appellants, at the time of filing the suit, the 1[st] appellant, who is the mother of the 2[nd] appellant, R.F.A.No.104 of 2021 -5- was undergoing treatment for breast cancer and for renal failure, as evidenced by Annexures A3 and A4 medical records. They were in acute financial crunch since the 1[st] appellant was undergoing treatment. On 09.07.2019 the suit was posted for payment of the balance court fee. On 04.06.2019, Master Sreeshankar H., the grandson of the 1[st] appellant and son of the 2[nd] appellant, who was studying at Champions School, Edappally, fell down while he was playing football at school. He was admitted in MAJ Hospital, Edappally, who was advised immediate surgery. After surgery, he was having high fever. He was taken to Amruta Hospital, Edappally, where he had undergone bone-marrow test, in which he was diagnosed to have B cell acute lymphoblastic leukemia. Therefore, the appellants could not contact their counsel before the Sub Court and give necessary instructions regarding the steps to be taken in O.S.No.18 of 2018, on 09.07.2019. On 02.08.2019, Master Sreeshankar was taken to Christian Medical College, Velloor. By that time, the appellants had spent considerable sum at Amruta Hospital towards treatment expenses. Master Sreeshankar and also the 1[st] appellant were undergoing treatment at Velloor for R.F.A.No.104 of 2021 -6- more than a year. According to the appellants, the default in payment of the balance court fee had occurred for the aforesaid reasons. The learned counsel for the appellants would point out that, to show bona fides the 1[st] appellant has kept a sum of Rs.4,50,000/- in her SB account with Federal Bank, Mannar Branch, for payment of the balance court fee, as evidenced by Ext.A7 Bank statement dated 08.03.2021. The appellants filed this appeal paying a fixed court fee of Rs.25/- under Schedule II, Article 3(iii)(A)(1)(a) of the Kerala Court Fees and Suit Valuation Act, 1959. 6. On the other hand, the learned counsel for the respondent-defendant would contend that the reasons stated as above are not at all satisfactory for the inordinate delay in payment of the balance court fee and as such, no interference is warranted on the impugned judgment of the Sub Court, whereby the plaint in O.S.No.18 of 2018 was rejected for non-payment of balance court fee and also on account of no representation of the plaintiffs in court on 09.07.2017. The learned counsel would also raise a contention that, in the appeal of this nature, the appellants will have to pay _ad valorem_ court fee and as such, this appeal R.F.A.No.104 of 2021 -7- filed after paying a fixed court fee of Rs.25/- under Schedule II, Article 3(iii)(A)(1)(a) of the Kerala Court Fees and Suit Valuation Act, cannot be entertained. 7. Section 4A of the Kerala Court Fees and Suits Valuation Act, 1959, inserted by Act 6 of 1991, which came into force with effect from 05.12.1990, deals with levy of fee at the time of institution of suit. As per Section 4A, notwithstanding anything contained in any other provisions of this Act, the amount of fee to be paid on plaint at the time of institution of suit shall be one-tenth of the amount of fee chargeable under this Act and the balance amount shall be paid within such period, not later than fifteen days from the date of framing of issues or whether framing of issues is not necessary, within such period not exceeding fifteen days as may be specified by the court. As per the first proviso to Section 4A, the court may, for sufficient reasons to be recorded in writing, extend the period up to thirty days. As per the second proviso to Section 4A, if the parties settle the dispute within the period, specified or extended by the court for the payment of the balance amount, the plaintiff shall not be called upon to pay such balance. R.F.A.No.104 of 2021 -8- 8. Section 52 of the Act deals with appeals. As per Section 52, the fee payable in an appeal shall be the same as the fee that would be payable in the court of first instance on the subject matter of the appeal. As per the first proviso to Section 52, in levying fee on a memorandum of appeal against a final decree by a person whose appeal against the preliminary decree passed by the court of first instance or by the court of appeal is pending, credit shall be given for the fee paid by such person in the appeal against the preliminary decree. As per the second proviso to Section 52, one-third of the fee payable in an appeal shall be paid at the stage of admission of first appeal or second appeal, as the case may be, and the balance shall be paid within such period, not later than fifteen days from the date of such admission as maybe specified by the court; in case the appeal is admitted. As per the third proviso to Section 52, the court may, for sufficient reasons to be recorded in writing extend the period up to thirty days. 9. As per Explanation (1) to Section 52 of the Act, whether the appeal is against the refusal of a relief or against the grant of the relief, the fee payable in the appeal shall be R.F.A.No.104 of 2021 -9- the same as the fee that would be payable on the relief in the Court of first instance. As per Explanation (2) to Section 52, costs shall not be deemed to form part of the subject matter of the appeal except where such costs form themselves the subject matter of the appeal or relief is claimed as regards costs on grounds additional to, or independent of, the relief claimed regarding the main subject matter in the suit. As per Explanation (3) to Section 52, in claims which include the award of interest subsequent to the institution of the suit, the interest accrued during the pendency of the suit till the date of decree shall be deemed to be part of the subject matter of the appeal except where such interest is relinquished. As per Explanation (4) to Section 52, where the relief prayed for in the appeal is different from the relief prayed for or refused in the court of first instance, the fee payable in the appeal shall be the fee that would be payable in the court of first instance on the relief prayed for in the appeal. As per Explanation (5) to Section 52, where the market value of the subject matter of the appeal has to be ascertained for the purpose of computing or determining the fee payable, such market value R.F.A.No.104 of 2021 -10- shall be ascertained as on the date of presentation of the plaint. 10. As per Schedule II, Article 3(iii)(A)(1)(a) of the Kerala Court Fees and Suit Valuation Act, the court fee payable in the memorandum of appeal to the High Court, if the order relates to suit or proceeding, the value of which exceeds one thousand rupees, is Rs.25/-, with effect from 26.10.2002. Prior to the substitution by Act 2 of 2003, the court fee payable was Rs.10/-. 11. Order VII, Rule 11 of the Code of Civil Procedure, 1908 deals with rejection of plaint. As per Rule 11, plaint shall be rejected in the following cases; - (a) where it does not disclose a cause of action; - (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; - (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; - (d) where the suit appears from the statement in the plaint to be barred by any law; - (e) where it is not filed in duplicate; R.F.A.No.104 of 2021 -11- - (f) where the plaintiff fails to comply with the provisions of Rule 9. 12. As per the proviso to Rule 11, the time fixed by the court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff. 13. In **Thanappan v. Hassan Kappor [2003 (2) KLT 39]** a Division Bench of this Court was dealing with a case in which the appellant-plaintiff filed suit before the Sub Court, Manjeri for recovery of a sum of Rs.8,57,550/- with future interest from 28.09.1998. The suit was posted to 17.08.2001 for payment of the balance court fee of Rs.56,358/- and then adjourned to 25.08.2001. On that day plaintiff was not present and the balance court fee was also not paid. The Sub Court therefore rejected the plaint by the judgment dated 25.08.2001. Feeling aggrieved, the plaintiff R.F.A.No.104 of 2021 -12- filed appeal before this Court. An amount of Rs.10/- was paid towards court fee, as per Schedule II, Article 3(iii)A(1)(a) of the Kerala Court Fees and Suits Valuation Act (after substitution by Act 2 of 2003 court fee payable is Rs.25/-). Registry did not number the appeal since _ad valorem_ court fee was not paid. The Division Bench noticed that the plaint was rejected since the plaintiff could not raise sufficient funds to pay the court fee. In such situation, if the plaintiff is directed to pay _ad valorem_ court fee, so as to consider his appeal, as to whether time could be granted to pay the _ad valorem_ court fee in the suit, that will cause him considerable prejudice. Plaintiff will have to pay court fee again in the court below. Since the plaint was rejected under Order VII, Rule 11(b) of the Code of Civil Procedure there is no adjudication as to the subject matter of the suit. Hence, the Division Bench held that, there is no justification in directing the appellant-plaintiff to pay _ad valorem_ court fee. The Division Bench overruled the objection of Registry and directed Registry to number the appeal. The Division Bench made it clear that, if the appeal is allowed and the judgment R.F.A.No.104 of 2021 -13- of the court below is set aside, the plaintiff has to remit court fee in the court below. 14. In **Narikuniyil Narayanan v. Palal Ummer [2009 (3) KLT 543]** a Division Bench of this Court was dealing with a case in which review petition was filed against the judgment in R.F.A.No.87 of 2003. That appeal, which was one filed against the judgment and decree in O.S.No.225 of 2000 on the file of the Sub Court, Thalasserry, was rejected for non-payment of the balance court fee. The total court fee payable was Rs.28,940/- and one-third court fee of Rs.9,646/- was remitted. After the appeal was admitted, the appellant has to pay the balance court fee. The appellant filed I.A.No.923 of 2003 seeking extension of the time for remittance of the balance court fee and extension of time by two weeks was granted by the order dated 21.07.2003. On 21.08.2008, when the appeal came up for hearing, it was rejected for non-compliance of the order to pay the balance court fee. The appellant filed review petition seeking review of that judgment by paying Rs.25/- as court fee. The question before the Division Bench was as to whether the court fee paid on the revision petition was sufficient. Going by Schedule R.F.A.No.104 of 2021 -14- I, Article 5 of the of the Kerala Court Fees and Suits Valuation Act, on an application for review of judgment, one-half of the fee payable on the plaint or memorandum of appeal comprising the relief sought for in the application for review has to be remitted. Before the Division Bench, the decision of a Division Bench of this Court in **Thanappan [2003 (2) KLT 39]** and the decision of the Full Bench of the Madras High Court **In Re: N. Kayambu Pillai [AIR 1941 Madras 836]** were cited. The Division Bench noticed that the appeal, i.e., R.F.A.No.87 of 2003 was dismissed for default for nonpayment of the balance court fee. There was no decision on the merits of the appeal. Going by Section 2(2) of the Code of Civil Procedure, the meaning of the term ‘decree’ will not include any order of dismissal for default. The review is confined only with respect to the dismissal of the appeal for default. If the review petition is allowed, then the appeal will be restored to file and the review petitioner-appellant will have to pay the entire balance court fee. Therefore, as held by the Division Bench in **Thanappan [2003 (2) KLT 39]** , since there is no adjudication on the subject matter of the appeal, there will not be any justification in directing the R.F.A.No.104 of 2021 -15- review petitioner to pay half of the court fee on the memorandum of appeal. Therefore, the Division Bench overruled the objection by Registry. 15. In **Beena K.G. v. Kesavam [2016 (3) KLT 117]** a Division Bench of this Court was dealing with a case in which the plaint has been rejected for non-payment of the balance court fee in a suit for specific performance. In the Regular First Appeal filed before this Court only a nominal court fee of Rs.25/- under Schedule II, Article 3(iii)(A)(1)(a) of the Kerala Court Fees and Suits valuation Act was paid. A doubt was raised as to whether the appellant is obliged to pay the same fee as would be payable in the court of the first instance under Section 52 of the said Act. The appellant thereupon relied on the decision of the Division Bench in **Thanappan [2003 (2) KLT 39]** . In **Beena K.G.** the Division Bench noticed that, it is beyond dispute that the definition of a decree under Section 2(2) of the Code of Civil Procedure includes also the rejection of a plaint. The Act does not make any difference between an adjudicated decree and a nonadjudicated decree in the matter of filing an appeal under Section 52 thereof. Two courses are open when a plaint is R.F.A.No.104 of 2021 -16- rejected for non-payment of the balance court fee. The plaintiff can either file a Regular First Appeal or apply for Review. The plaintiff has necessarily to pay one-half of the fee payable on the plaint in an application for review of the judgment under Schedule I Article 5 of the Act. After referring to the decisions in **Ganpati v. Venkatesh and others [AIR 1935 Nagpur 83]** , **Kaliyappa Goundan v. Kandaswami Goudan [(1938) 1 MLJ 662]** , etc., the Division Bench found that the subject matter of the appeal is not about granting a decree for specific performance of the contract in the absence of a conclusive determination of the rights of the parties in the suit. The subject matter of the appeal on the other hand is, about the propriety of the trial court in rejecting the plaint for the non-payment of the balance court fee within the time permitted. There has only been a deemed decree in terms of Section 2(2) of the Code of Civil Procedure on account of the rejection of the plaint without any adjudication on merits. The same does not however preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action evident by Order VII, Rule 13 of the Code. The further fact that the court fee already paid on the R.F.A.No.104 of 2021 -17- plaint which has been rejected is liable to be refunded in terms of Section 66 of the Act reinforces the said conclusion. Moreover, the appeal is confined to the rejection of the plaint for non-payment of the balance court fee and the deemed decree is not assailed on any other ground. Therefore, the Division Bench agreed with the ratio in **Thanappan** for altogether different reasons and held that the appellant is only obliged to pay court fee as per Schedule II, Article 3(iii) (A)(1)(a) of the Act. 16. In **Thomas v. Abraham Jose Rocky [2019 (3) KLT 140]** a Division Bench of this Court observed that, indisputable is the proposition that rejection of a plaint under Order VII, Rule 11 of the Code of Civil Procedure is a deemed decree by virtue of the definition of ‘decree’ in Section 2(2) of the Code. It cannot be denied that rejection of a plaint is reckoned or presumed to be a decree by a legal fiction. From the definition of decree, it will be clear that it is a formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. It is to be remembered that the rejection of plaint, R.F.A.No.104 of 2021 -18- under Order VII, Rule 11 of the Code, need not be after a full fledged trial under all circumstances. In other words, when a suit appears from the statements in the plaint to be barred by any law or where it is filed in duplicate, the court has power to reject the plaint without actual trial. In such circumstances, no adjudication takes place. But for the deeming provision in Section 2(2) of the Code, rejection of plaint under the above circumstances would not have been a decree. Axiomatic is the principle that deeming a thing as another will be required only if both are legally and factually different entities. In fact, if both things are same or similar in all respects, no deeming is required. In the absence of any deeming provision in Section 2(2) of the Code, rejection of a plaint would not have been a decree capable of being challenged in appeal by invoking Section 96 and Order XLI of the Code. Although rejection of plaint is deemed to be a decree, it remains inexecutable. 17. In **Thomas** , the learned counsel for the appellants contended that the dispute raised by the respondents regarding insufficiency of court fee cannot hold good. According to the learned counsel, even if the appellants R.F.A.No.104 of 2021 -19- succeed in the appeal, they will not get any tangible benefit, except getting a direction to the court below to try and dispose of the case on merits. It is therefore argued that the mandate of Section 52 of the Kerala Court Fees and Suits valuation Act that fee payable in an appeal shall be the same as the fee that would be payable in the court of first instance on the subject matter of appeal shall not be applied to appeals filed against rejection of plaint. The Division Bench noticed that, this Court had occasion to consider a similar question in **Beena K.G. [2016 (3) KHC 677]** . Reckoning the fact that it would not be correct to lay down that rejection of a plaint is such a complete and final determination of the rights of parties, there is no room, in any appeal from such an order, for the proposition that the subject matter in the appeal is the same as subject matter of the original suit. After discussing the legal intricacies, the Division Bench in **Beena K.G.** held that in such cases the court fee payable in the appeal would fall under Schedule II, Article 3(iii)(A)(1)(a) of the Kerala Court Fees and Suits valuation Act. In **Thomas** the Division Bench found no reason to differ from the view taken by this Court in **Beena K.G.** Hence the Division Bench ## R.F.A.No.104 of 2021 -20- repelled the contention of the respondents on insufficiency of court fee. 18. In **Kalliappa Goundan v. Kandawami Goundan [AIR 1938 Madras 498 : (1938) 1 MLJ 662]** , a decision relied on by the learned counsel for the respondentdefendant, a Division Bench of the Madras High Court noticed that, it is a matter of common experience that the subject matter of every appeal does not necessarily coincide with the subject matter of every suit in regard to which the appeal has been filed. In order to ascertain the correct valuation of each appeal for purposes of court fee, one will have to ascertain the subject matter of that appeal. On the facts of the case on hand, the Division Bench noticed that, a mere cursory glance at the grounds of appeal filed on behalf of the appellant would show that he had come up to the High Court with the object of testing the correctness of the order passed by the District Judge, who had ordered him to pay an additional court-fee of Rs.312.70 and the failure to pay which had resulted in the rejection of his appeal. He had therefore valued his appeal to the High Court at that figure. The learned Judge of the High Court refused to entertain the R.F.A.No.104 of 2021 -21- appeal unless the appellant made up the deficiency between the value placed by him and that ordered by the District Judge. He failed to comply with this order and his appeal was accordingly dismissed. This has given rise to the Letters Patent Appeal. The appeal has been valued at the figure which the appellant was required to pay by the learned Judge of the High Court in addition to what he had already paid on his appeal. The Division Bench held that, the subject matter of the Letters Patent Appeal or the appeal against which the present appeal has been filed was the deficit in the amount of the court fee which the appellant was called upon to pay, and which he had failed to do. This should be the amount then at which the appeal should be valued. 19. In **Sri Maharaj Kumarika Subarna Rekha Mani Devi v. Sri Ramakrishna Deo [AIR 1968 AP 239]** , another decision relied on by the learned counsel for the respondent-defendant, a Full Bench of the Andhra Pradesh High Court held that, the question whether a memorandum of appeal for purposes of court fee is governed by one provision or the other must turn on the scope of the appeal and substance of the reliefs claimed therein. The general principle R.F.A.No.104 of 2021 -22- as laid down in Section 49 of the Andhra Court Fees and Suits Valuation Act, 1956 is that the fee payable in appeal shall be the same as the fee that would be payable in the court of first instance on the subject matter of appeal. The subject matter of appeal may not necessarily cover the entire subject matter of the suit as it depends upon the way in which the suit is disposed of in the Court of first instance. If the relief or reliefs prayed for are the same, no difficulty would arise. The court fee as paid in the court of first instance shall be the fee in appeal. If only some of the reliefs and not all are prayed for in appeal, the Court-fee will be paid according to the value of those reliefs in the suit. If the relief prayed for is different from that prayed for or refused in the court of first instance the fee payable shall be the fee that would have been payable in the Court of first instance on the relief prayed for in the appeal. The fee payable may be _ad valorem_ or fixed. In view of these various qualifications each case must necessarily turn on its own facts and circumstances. So far as appeals against orders of rejection of plaints on grounds mentioned in clauses (b) and (c) of Order VII, Rule 11 of the Code of Civil Procedure are concerned if the relief is limited to that matter R.F.A.No.104 of 2021 -23- and not to the merits of the suit itself the court fee payable on the memorandum of appeal, as a rule, is under Article 1(c) of Schedule I to Act and the subject matter in dispute would be the value representing the difference between the court fee demanded and that paid. The appeals from rejection of plaints under clauses (a) and (d) of Order VII, Rule 11 of the Code stand on a different footing and may not, however, fall under the said Article, if they are confined to the to that relief of setting aside the order of rejection of plaint alone and do not further. It must all turn on the particular facts and circumstances of each case. The scope of the appeal and the relief claimed would determine the issue. In the case on hand, the Full Bench noticed that, in so far as S.R.No.37885/651 is concerned, the trial court has not gone into the merits of the suit but simply rejected the plaint on the ground mentioned in clause (a) of Order VII, Rule 11 of the Code, and the appeal is confined to that relief alone and as the relief claimed is incapable of valuation and the court fee is not provided for otherwise than under Section 47 read with Section 49 having regard to the value of the suit itself, i.e., Rs.6,000/- shown in the memorandum of appeal, the R.F.A.No.104 of 2021 -24- court fee required for the said appeal would be Rs.200/-. The same cannot be said of A.A.O.S.Nos. 176 to 179 of 1965 for the appeal are not limited to the question of setting aside the order of rejection of plaints. In them the reliefs claimed go beyond and contain a prayer that the suits should be decreed. The memoranda of the appeals, therefore cannot come under Section 47 as the reliefs prayed for are capable of valuation and the appeals are governed by Article 1(c) of Schedule I. The court fee has to be paid _ad valorem_ and would be the same as in the suits themselves. 20. The issue raised in this appeal is covered in favour of the appellants-plaintiffs by the decisions of the Division Bench of this Court in **Thanappan [2003 (2) KLT 39]** , **Narikuniyil Narayanan [2009 (3) KLT 543]** , **Beena K.G. [2016 (3) KLT 117]** and **Thomas [2019 (3) KLT 140]** . When the plaint was rejected under Order VII, Rule 11 of the Code of Civil Procedure, since the plaintiffs could not raise sufficient funds to pay the balance court fee, there is no adjudication as to the subject matter of the suit. In this appeal filed under Order XLI, Rule 1 of the Code the only question that arises for consideration is as to whether the R.F.A.No.104 of 2021 -25- plaintiffs could be granted time to pay the balance _ad valorem_ court fee in the suit. Once time is granted, the plaintiffs will have to pay the balance _ad valorem_ court fee in the suit. Two courses are open to the plaintiff when the plaint is rejected for non-payment of the balance court fee. The plaintiff can either file a Regular First Appeal or apply for review. In an application for review the plaintiff has necessarily to pay one-half of the court fee payable, under Schedule I Article 5 of the Kerala Court Fees and Suit Valuation Act. On the other hand, in appeal filed under Order XLI, Rule 1 of the Code, against rejection of plaint for nonpayment of the balance _ad valorem_ court fee, the plaintiff is required to pay only the fixed court fee of Rs.25/- under Schedule II, Article 3(iii)(A)(1)(a) of the Kerala Court Fees and Suit Valuation Act. In such an appeal, the subject matter is not about granting a decree as sought for in the suit. In the absence of a conclusive determination of the rights of the parties in the suit, the subject matter of that appeal is confined to the propriety of judgment of the trial court in rejecting the plaint for non-payment of the balance _ad valorem_ court fee, within the time permitted. There is only a R.F.A.No.104 of 2021 -26- deemed decree in terms of Section 2(2) of the Code of Civil Procedure, on account of the rejection of the plaint for nonpayment of the balance court fee, without any adjudication on merits. The same does not however preclude the plaintiffs from presenting a fresh plaint in respect of the same cause of action, since Order VII, Rule 13 of the Code provides that the rejection of the plaint on any of the grounds mentioned in Rule 11 shall not of its own force preclude the plaintiffs from presenting a fresh plaint in respect of the same cause of action. Further, the court fee already paid on the plaint which has been rejected is liable to be refunded to the plaintiffs in terms of Section 66 of the Kerala Court Fees and Suit Valuation Act. Therefore, the court fee payable in this appeal falls under Schedule II, Article 3(iii)(A)(1)(a) of the Kerala Court Fees and Suits valuation Act and the contention raised by the respondent-defendant as to insufficiency of court fee can only be rejected as untenable and we do so. 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 R.F.A.No.104 of 2021 -27- 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. 22. In **Manoharan v. Sivarajan [(2014) 4 SCC 163]** the Apex Court was dealing with a case in which the appellant-plaintiff filed O.S.No.141 of 2007 before the Sub Court, Neyyattinkara, for mandatory injunction; for declaration of the sale deed executed by the 1[st] defendant in favour of defendants 2 and 3 as null and void; for execution of re-conveyance deed in his favour; and also for other consequential reliefs. The suit was valued at Rs.3,03,967/and the total court fee payable was Rs.28,797/-. The plaintiff paid one-tenth court fee of Rs.2,880/- at the time of filing the suit. The Sub Court granted ad interim injunction in favour of the plaintiff, restraining the defendants from carrying out new construction activities including the parts of the plaint schedule property until further orders. The plaintiff filed R.F.A.No.104 of 2021 -28- application for extension of time for payment of the balance court fee. However, that application was rejected by the Sub Court. The plaintiff then filed Regular First Appeal No.678 of 2011 before the High Court, along with an application for condonation of delay in filing the appeal. The High Court dismissed the application for condonation of delay, on the ground that the delay in filing the appeal was not explained by the plaintiff and consequently, dismissed the Regular First Appeal. Feeling aggrieved, the plaintiff approached the Apex Court. 23. In **Manoharan** , on the question as to whether the Sub Court was justified in rejecting the plaint for nonpayment of court fee, the Apex Court noticed that, Section 149 of the Code of Civil Procedure prescribes a discretionary power which empowers the court to allow a party to make up the deficiency of court fee payable on plaint, appeals, applications, review of judgment, etc. This Section also empowers the court to retrospectively validate insufficiency of stamp duties, etc. It is also a usual practice that the court provides an opportunity to the party to pay court fee within a stipulated time on failure of which the court dismisses the R.F.A.No.104 of 2021 -29- appeal. On the facts of the case on hand, the Apex Court noticed that, the appellant-plaintiff filed an application for extension of time for remitting the balance court fee which was rejected by the Sub Court. It is the claim of the plaintiff that he was unable to pay the requisite amount of court fee due to financial difficulties. It is the usual practice of the court to use its discretion in favour of the litigating parties unless there are manifest grounds of mala fide. The court, while extending the time for or exempting from the payment of court fee, must ensure bona fide of such discretionary power. Concealment of material fact while filing application for extension of date for payment of court fee can be a ground for dismissal. However, in the case on hand, no opportunity was given by the Sub Court for payment of court fee by the appellant-plaintiff, which he was unable to pay due to financial constraints. The Apex Court found that the decision of the Sub Court is wrong and accordingly, it was set aside. 24. In **Manoharan** , on the question as to whether the appellant-plaintiff was entitled to condonation of delay for non-payment of court fee by the Sub Court, the Apex Court noticed that, it is clear from the evidence on record that the R.F.A.No.104 of 2021 -30- plaintiff could not pay the balance court fee due to financial difficulty because of which his suit got rejected. The plaintiff had moved the court claiming substantive right to his property. The plaintiff faced with the situation like this, did not deserve the dismissal of the original suit by the court for non-payment of court fee. He rather deserved more compassionate attention from the Sub Court in the light of the directive principle laid down in Article 39A of the Constitution of India, which is equally applicable to district judiciary. It is the duty of the courts to see that justice is meted out to people irrespective of their socio-economic and cultural rights or gender identity. After referring to Section 12(h) of the Legal Services Authorities Act, 1987; Rule 12 of the Kerala State Legal Services Authorities Rules, 1998; and also the law laid down in **State of Maharashtra v. Manubhai Pragaji Vashi [(1995) 5 SCC 730]** the Apex Court observed that, Article 39A of the Constitution of India provides for holistic approach in imparting justice to the litigating parties. It not only includes providing free legal aid via appointment of counsel for the litigants, but also includes ensuring that justice is not denied to litigating parties due to R.F.A.No.104 of 2021 -31- financial difficulties. Therefore, in the light of the legal principle laid down in **Manubhai Pragaji Vashi** , the appellant-plaintiff deserved waiver of court fee so that he could contest his claim on merit which involved his substantive right. The Apex Court held that the Sub Court erred in rejecting the case of the plaintiff due to non-payment of court fee. Hence, the Apex Court set aside the findings and the decision of the Sub Court and condoned the delay in payment of the balance court fee by the plaintiff, which had resulted in the rejection of his suit. 25. In **Manubhai Pragaji Vashi** , while considering the combined effect of Article 21 and Article 39A of the Constitution of India, the Apex Court noticed that, the right to free legal aid and speedy trial are guaranteed fundamental rights under Article 21 of the Constitution. The preamble to the Constitution of India assures 'justice, social, economic and political'. Article 39A of the Constitution provides 'equal justice' and 'free legal aid'. The State shall secure that the operation of the legal system promotes justice. It means justice according to law. In a democratic polity, governed by rule of law, it should be the main concern of the State, to R.F.A.No.104 of 2021 -32- have a proper legal system. Article 39A mandates that the State shall provide free legal aid by suitable legislation or schemes or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The principles contained in Article 39A are fundamental and cast a duty on the State to secure that the operation of the legal system promotes justice, on the basis of equal opportunities and further mandates to provide free legal aid in any way - by legislation or otherwise, so that justice is not denied to any citizen by reason of economic or other disabilities. The crucial words are ‘the obligation of the State’ to provide free legal aid 'by suitable legislation or by schemes' or 'in any other way', so that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. 26. In **Manoharan** , the Apex Court allowed the appeal by setting aside the judgments and decree of both the Sub Court and the High Court and remand the case back to the Sub Court for payment of court fee within 8 weeks. If for any reason, it is not possible for the appellant-plaintiff to pay the court fee, he is at liberty to approach the jurisdictional R.F.A.No.104 of 2021 -33- District Legal Services Authority and Taluk Legal Services Committee seeking for grant of legal aid for sanction of court fee amount payable on the suit before the Sub Court. The Apex Court ordered that, if such application is filed, the same shall be considered by such committee and the same shall be facilitated to the appellant-plaintiff to get his right adjudicated by the Sub Court by securing equal justice as provided under Article 39A of the Constitution of India, read with the provision of Section 12(h) of the Legal Services Authorities Act and Rule 12 of the Kerala State Legal Services Authorities Rules. The Apex Court further directed the Sub Court to adjudicate on the rights of the parties on merit and dispose of the matter as expeditiously as possible. 27. The scope of Section 149 of the Code has been considered by this Court in **Tamil Nadu Handloom Weavers Co-operative Society v. George [2004 (1) KLT 579]** . Relying on the decision of the Division Bench in **Elizebath v. Francis [1991 (2) KLT 779]** it was held that the court can grant extension of time for payment of the balance court fee beyond a period of 30 days. The said principle has been reiterated in **Baburaj V.K. v. Roads and** R.F.A.No.104 of 2021 -34- ## **Bridges Development Corporation of Kerala Ltd. and others [2016 (5) KHC 917].** 28. In **Baburaj V.K.** , the petitioner-plaintiff filed O.S.No.123 of 2015 before the Sub Court, Ernakulam for a declaration that he is not liable to pay the amount of Rs.25,55,151/- as calculated by the 2[nd] defendant, said to be the amount due from the plaintiff on the basis that the contract entered into between the plaintiff and the 1[st] defendant and for a prohibitory injunction from realisation of the said amount. In the suit, the plaintiff had to pay a total court fee of Rs.1,38,024/- under the Kerala Court Fees and Suit Valuation Act. He remitted one-tenth of that amount, namely, Rs.13,803/- at the time of institution of the suit, as provided under Section 4A of the said Act. The balance court fee payable was Rs.1,24,221/-. Since the plaintiff could not pay that amount within the time specified under Section 4A, he filed I.A.No.3355 of 2016 under Section 149 of the Code of Civil Procedure, for extension of time by three months. The plaintiff had produced Ext.P3 medical report and also Karunaya Benevolent Fund application to show that he was not having sufficient money for the time being even to meet R.F.A.No.104 of 2021 -35- the medical expenses for his treatment. So he wanted further time of three months to remit the balance court fee. But the court below granted only time till 29.08.2016 by the impugned order. 29. In **Baburaj V.K.** , considering the fact that the petitioner-plaintiff underwent an operation and incurred huge expenses for meeting the treatment expenses, this Court found that the time granted by the court below appears to be very meager. Considering the facts and circumstances of the case, this Court shown some leniency for payment of the balance court fee, considering the amount involved and also the pathetic condition of the plaintiff. Accordingly, the plaintiff was granted time till 30.09.2016 to remit the balance court fee and it was ordered that, if the plaintiff remits the balance court fee within that time, the court below shall receive the same and proceed with the suit and dispose of the same in accordance with law. 30. In the instant case, at the time of filing the suit, the 1[st] appellant, who is the mother of the 2[nd] appellant, was undergoing treatment for breast cancer and for renal failure, as evidenced by Annexures A3 and A4 medical records. On R.F.A.No.104 of 2021 -36- 04.06.2019, Master Sreeshankar H., the grandson of the 1[st] appellant fell down while he was playing football at school. After surgery at MAJ Hospital, Edappally, he was taken to Amruta Hospital, Edappally, where he had undergone bonemarrow test, in which he was diagnosed to have B cell acute lymphoblastic leukemia. Therefore, the appellants could not contact their counsel before the Sub Court and give necessary instructions regarding the steps to be taken in O.S.No.18 of 2018, on 09.07.2019. Master Sreeshankar and also the 1[st] appellant were undergoing treatment at Velloor for more than a year. Now, in order to show bona fides, the 1[st] appellant has kept a sum of Rs.4,50,000/- in her SB account with Federal Bank, Mannar Branch, for payment of the balance court fee, as evidenced by Ext.A7 Bank statement dated 08.03.2021. Considering the facts and circumstances of the case, we find that the appellantsplaintiffs are entitled to an order for extension of time for payment of the balance court fee in O.S.No.18 of 2018. 31. The learned counsel for the appellants-plaintiffs would submit that Rs.4,50,000/- for payment of the balance court fee is still available in the SB account of the 1[st] R.F.A.No.104 of 2021 -37- appellant with Federal Bank, Mannar Branch and the appellants shall remit the balance court fee in O.S.No.18 of 2018 within the time limit specified by this Court. 32. In such circumstances, this appeal is allowed by setting aside the judgment dated 09.07.2019 of the Sub Court, Chengannur, rejecting the plaint in O.S.No.18 of 2018 for non-payment of the balance court fee and that suit is restored to file. The appellants-plaintiffs are granted two weeks' time from the date of receipt of a certified copy of this judgment for payment of the balance court fee in O.S.No.18 of 2018. Since the suit is of the year 2018, the Sub Court shall finally dispose of the same, as expeditiously as possible, at any rate, within a period of five months, if there are no other legal impediments. No order as to costs. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- ## **K. BABU, JUDGE** AV R.F.A.No.104 of 2021 -38- ## **APPENDIX OF RFA 104/2021** ## **PETITIONER ANNEXURE** ## **ANNEXURE A1** **CERTIFIED COPY OF THE COMMON ORDER IN I.A.285/2019 AND I.A.NO.286/2019 IN O.S.NO.18/2018 DATED 30.07.2019 ON THE FILE OF THE SUB COURT, CHENGANNUR.** **ANNEXURE A2 CERTIFIED COPY OF THE COMMON ORDER IN I.A.1/2020 AND R.P.NO.3/2020 IN O.S.NO.18/2018 DATED 23.02.2021 ON THE FILE OF THE SUB COURT, CHENGANNUR.** - **ANNEXURE A3 ORIGINAL COPY OF THE MEDICAL REPORT DATED 22.05.2018 ISSUED BY HI-TECH DIAGNOSTIC CENTER DIAGNOSING THAT THE 1ST APPELLANT HAS ENHANCED BREAST CANCER.** - **ANNEXURE A4 ORIGINAL COPY OF TEST REPORT OF THE 1ST APPELLANT DATED 02.06.2018 ISSUED BY THE DDRC, ERNAKULAM.** - **ANNEXURE A5 ORIGINAL COPY OF THE MEDICAL REPORT DATED 02.08.2019 OF THE SON OF THE 2ND APPELLANT ISSUED BY THE AMRUTHA CANCER INSTITUTE.** - **ANNEXURE A6 ORIGINAL COPY OF CERTIFICATE DATED 21.08.2019 ISSUED BY THE DEPARTMENT OF HEMATOLOGY CHRISTIAN MEDICAL COLLEGE, VELLORE.** **ANNEXURE A7 THE ORIGINAL COPY OF THE BANK STAEMENT OF THE 1ST PLAINTIFF WITH FEDERAL BANK, MANNAR BEARING ACCOUNT NUMBER '11310100202316'.** **ANNEXURE A8 THE ORIGINAL CERTIFICATE ISSUED BY THE DOCTOR DATED 10.08.2021** R.F.A.No.104 of 2021 -39- ## **ANNEXURE A9** **THE ORIGINAL CERTIFICATE ISSUED BY DR.ANUP J DEVASIA DATED 21.12.2019 REGARDING THE ILLNESS AND EXPECTED EXPENSES FOR PARTICULAR CLINICAL PROCEDURE OF MR.SREESHANKAR H** **ANNEXURE A10** - **TEH ORIGINAL TREATMENT HISTORY AND MEDICAL RECOMMENDATIONS DATED 12.07.2021 ISSUED BY CHRISTIAN MEDICAL COLLEGE, VELLORE TO MR.SREESHANKAR H.** ## **RESPONDENTS' ANNEXURES** - **ANNEXURE R-1 CASE STATUS OF OPC 1761/2020 OF THE HON'BLE COURT OF KERALA** - **ANNEXURE R-1(a) ON LINE CERTIFIED COPY OF THE JUDGMENT DATED 4TH FEBRUARY 2021 MADE IN OPC NO.1761/2020 OF THIS HON'BLE HIGH COURT OF KERALA.** - **ANNEXURE R-1(b) CASE STATUS OF RP NO.55/2020 OF THE HON'BLE HIGH COURT OF KERALA** - **ANNEXURE R-1(c) ON LINE CERTIFIED COPY OF THE JUDGMENT DATED 27TH NOVEMBER 2020 MADE IN RP NO.55/2020 OF THIS HON'BLE HIGH COURT OF KERALA** - **ANNEXURE R-1(d) CERTIFIED COPY OF THE ORDER DT.23-22021 MADE IN IA NO.2/2020 IN OS NO.18/2018 OF HON'BLE SUB COURT, CHENGANNUR**