Nandhini P. and Thankam P. v. Poroli Sadanandhan and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 15[TH] DAY OF JULY 2022 / 24TH ASHADHA, 1944** **RSA NO. 1315 OF 2019** **AGAINST THE ORDER/JUDGMENTOS 364/2015 OF PRINCIPAL MUNSIFF COURT** **KOZHIKODE-I** **AS 36/2018 OF ADDITIONAL DISTRICT COURT, KOZHIKODE / I ADDITIONAL** **MACT, KOZHIKODE** ## **APPELLANTS/APPELLANTS/PLAINTIFFS:** |**1**|**NANDHINI P., AGED 69 ,**| |---|---| ||**D/O.RARICHAN, PATTOLATH HOUSE,**| ||**PUTHIYANGADI, KOZHIKODE-673021**| |**2**|**THANKAM.P, AGED 64 YEARS**| ||**D/O.RARICHAN, PATTAMPURATH HOUSE,**| ||**P.O.WEST HILL, PUTHIYANGADI, KOZHIKODE-673005**| ||**BY ADVS.**| ||**JOSE KURIAKOSE (VILANGATTIL)**| ||**SRI.BIJO FRANCIS**| ||**SRI.JACOB GEORGE (PATHAZHAKKUZHIKAL)**| ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** |**1**|**POROLI SADANANDHAN,**| |---|---| ||**AGED 76 YEARS**| ||**S/O.RARICHAN, 'SAMAKYA', PALLIPARAMB, MUKKAMKADAVU**| ||**ROAD, THALAKULATHUR.P.O., PURAKKATTIRI, KOZHIKODE-**| ||**673317**| |**2**|**GOPINATH**| ||**AGED 64 YEARS**| ||**GOPINATH, MATHIRAKOTT PADIKKAL, WEST HILL.P.O.,**| ||**KOZHIKODE-673005**| |**3**|**KAMALABHAI**| ||**AGED 59 YEARS**| ||**W/O.GOPINATH, MATHIRAKOTT PADIKKAL, WEST HILL.P.O.,**| ||**KOZHIKODE-673005**| |**4**|**N.PADMA**| ||**AGE NOT KNOWN, D/O.ANANTHAN, NADUKANDY HOUSE,**| ||**ATTANIKKAL.P.O., KOZHIKODE-673314**| |**5**|**MOHANAN**| ||**AGE NOT KNOWN, S/O.BALAN, PATTOLATH PARAMB,**| ||**PUTHIYANGADI, VENGALI.P.O., KOZHIKODE-673021**| |**6**|**DEVAN**| ||**AGE NOT KNOWN, S/O.BALAN, PATTOLATH PARAMB,**| R.S.A No. 1315 of 2019 **2** **PUTHIYANGADI, VENGALI.P.O., KOZHIKODE-673021** **7 LAKSHMANAN AGE NOT KNOWN, S/O.BALAN, PATTOLATH PARAMB, PUTHIYANGADI, VENGALI.P.O., KOZHIKODE-673021 BY ADVS.** **SRI.V.T.MADHAVANUNNI SRI.SRINATH GIRISH SRI.M.VIVEK RABINDRANATH** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON** **15.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.S.A No. 1315 of 2019 **3** ## **JUDGMENT** This appeal has been filed against the judgment and decree in A.S.No.36/2018 on the filed of 1[st] Additional District Judge, Kozhikode which arose out of judgment and decree in O.S.No.364/2015 on the file of Principal Munsiff's Court-I, Kozhikode. 2. Aggrieved by the dismissal of the suit by the Munsiff's court, appellants filed appeal before the District Judge, Kozhikode, that was rejected for non payment of Balance Court Fee, for the reason that no application seeking enlargement of time filed either. 3. According to the appellants, they have tendered court fee even though it was after the stipulated time and hence, appellate court should have enlarged the time and received the court fee. It is also their contentions that nonfiling of application for enlargement of time was not intentional and was only a bonafide omission. R.S.A No. 1315 of 2019 **4** 4. The learned counsel for the 1[st] and 7[th] respondent on the other hand contended that the appellants did not pay the Balance Court Fee in time and no petition for enlargement of time was also filed. Hence, there is no reason what so ever to interfere with the judgment passed by the 1[st] appellate court. 5. When the case come up for admission, following substantial question of law is formulated. 1. Whether the rejection of appeal by the 1[st] appellate court is perverse and would substantially affect the right of the appellant ? 6. In _**State of Kerala v. Umesh Rao**_ [1998 (2) KLT 541], a learned Single Judge of this Court while dealing with Section 52 of Court Fees and Suits Valuation Act, 1959 (Kerala) and Section 149 & 148 & O. VII R.11 of Code of Civil Procedure, 1908, discussed the procedure to be followed while extending time for paying Balance Court Fee as per Section 52 of the Court Fees and Suits R.S.A No. 1315 of 2019 **5** Valuation Act, 1959 (Kerala). The second proviso to the Section states that one-third of the fee payable in an appeal shall be paid at the stage of admission, whether it be a first appeal or a second appeal. It also mandates that the balance shall be paid within such period not later than fifteen days from the date of such admission, as may be specified by the Court, in case he appeal is admitted. It is further provided that the court may have sufficient reasons to be recorded in writing, extend the period upto thirty days. Therefore, if S. 52 alone is looked into, it would appear that the court has no power to condone the delay beyond 30 days from the date of admission, in respect of payment of balance court fee. 7. Section 148 of the Code of Civil Procedure empowers the court, in its discretion, from time to time, enlarge the period from the time fixed or granted by the Court even though the period originally fixed or granted has expired. Section 149 is the express provision R.S.A No. 1315 of 2019 **6** empowering the court to make up deficiency of court fee, which says that where the whole or any part of any fee prescribed for any document by law for the time being in force relating to court fees has not been paid, the court may, in it 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. 8. In _**KCM ltd v. Padmanabha Pillai**_ [1957 KLT 1175] has also been quoted by the learned Single Judge in the above decision, wherein while dealing with the identical situation, the full Bench held that Section 149 of the Code of Civil Procedure gives discretion to the Court to grant time for payment of Balance Court Fee beyond 30 days. In _**Elizabeth v. Francis**_ [1991 (2) KLT 779], a division bench of this Court also held that provisions for R.S.A No. 1315 of 2019 **7** payment of Court fee is not to be treated as par of substantive law, but it is a procedural law and is complimentary to the Code of Civil procedure and that Section 148 allows the Court to enlarge the time where any period is fixed or granted by the Court for the doing of any act and the discretion is granted to the court to enlarge time even after the period expired. 9. In the present case, the impugned judgment passed by the 1[st] appellate court would show that no application seeking enlargement of time has been filed. It was because of that fact due to non payment of balance court fee, appeal was rejected by the learned I additional District Judge. But the impugned order does not state whether the Court has fixed time to pay Balance Court Fee. Second proviso Section 2 of 52 of the Court Fees and Suits Valuation Act, 1959 (Kerala) expresslly state that one third of the fee shall be paid in the stage of admission and the balance shall be paid in such period not later than R.S.A No. 1315 of 2019 **8** 15 day from the date of admission as may be specified by the Court. Since the impugned judgment does not specify the fact as to whether the Court has fixed the time to pay Balance Court Fee, the contention of the appellants that the rejection of appeal by the 1[st] appellate court is erroneous and contrary to the law is sustained. In the result, appeal allowed the impugned order is set aside and the case is remanded to the 1[st] Additional District Court, Kozhikode for fresh consideration. If at all the court has specified a time for remittance of balance court fee, the appellant should file an application for enlargement of time for receiving the Balance Court Fee. Thereafter, the court below shall dispose the matter in accordance with law. Sd/- **M.R.ANITHA, JUDGE** rps/