T.X. Job v. St. James Church, Cheranellore & Ors.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE P.SOMARAJAN MONDAY, THE 9TH DAY OF JANUARY 2017/19TH POUSHA, 1938 RFA.No. 730 of 2016 (C) ---------------------------------AGAINST THE JUDGMENT IN OS 243/2014 of PRINCIPAL SUB COURT, ERNAKULAM, DATED 12-04-2016 APPELLANT/PLAINTIFF: - -------------------------------------- T.X.JOB, S/O.T.P.XAVIER, AGED 41 YEARS, THATTASSERY, THYKKOODOM, VYTTILA P.O., KOCHI-19. BY ADVS.SRI.A.BALAGOPALAN SRI.M.N.MANMADAN RESPONDENTS/DEFENDANTS: - ------------------------------------------------ 1. ST.JAMESH CHURCH, CHERANELLOORE, ERNAKULAM DISTRICT, REPRESENTED BY ITS VICAR. 2. MANAGING TRUSTEE, ST.JAMES CHURCH, CHERANELLOORE, ERNAKULAM DISTRICT. 3. REV.FR.ANTONY KALATHIVEETTIL, AGED ABOUT 75 YEARS, VICAR, ST.JAMES CHURCH, CHERANELLORE, ERNAKULAM DISTRICT. R1,R2 BY ADV. SRI.T.B.THANKAPPAN R1,R2 BY ADV. SRI.T.T.HARIKUMAR R1,R2 BY ADV. SRI.ASHISH VIDYADHARAN THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 09-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DMR/- ## **P.N.RAVINDRAN & P. SOMARAJAN, JJ.** -----------------------------------------------R.F.A. No.730 of 2016 -----------------------------------------------Dated this the 09[th] day of January, 2017 ## J U D G M E N T ## **P.N. Ravindran, J.** The appellant is the plaintiff in O.S.No.243 of 2014 on the file of the Court of the Subordinate Judge of Ernakulam. He had, in the plaint in O.S.No.243 of 2014 which was presented on 01.10.2014, prayed for a decree allowing him to realize the sum of Rs.21,00,000/- together with interest and costs from the defendants and their assets. The defendants are the St. James Church, Cheranellore, represented by the Managing Trustee of the said church and its Vicar. The court fee payable on the plaint was Rs.1,86,400/-. The appellant/plaintiff had, in terms of the stipulations contained in Section 4A of the Kerala Court Fees and Suits Valuation Act, 1959, paid Rs.18,640/-, being one tenth of the court fee payable on the plaint on the day it was presented. As per the provisions contained in Section 4A of the Kerala Court Fees R.F.A. No.730 of 2016 2 and Suits Valuation Act, 1959, the balance court fee has to be paid not later than 15 days from the date of framing of issues or where framing of issues is not necessary, within such period not exceeding fifteen days as may be specified by the court. The first proviso to Section 4A of the Act, however, empowers the court for sufficient reasons to be recorded in writing, to extend the period for payment of balance court fee up to thirty days. The second proviso to Section 4A of the Act stipulates that if the parties settle the dispute within the period specified or extended by the court for paying the balance court fee, the plaintiff shall not be called upon to pay the balance court fee. 2. Issues in the instant case were framed on 08.02.2016. On that day, the trial court also directed the plaintiff to pay the balance court fee and adjourned the suit to 22.02.2016 to await payment of the balance court fee. Since the balance court fee was not paid on 22.02.2016, the suit was adjourned to 08.03.2016, so as to enable the plaintiff to pay the balance court fee. The plaintiff did not pay the balance court fee within the time limit stipulated. Instead, he filed I.A. No. 1211 of 2016 on 08.03.2016 praying for enlargement of time to pay the balance court fee by a further R.F.A. No.730 of 2016 3 period of one month. In the affidavit filed in support of the application sworn to by learned counsel appearing for the appellant, it was stated as follows. “2. The above suit is filed for a decree allowing the plaintiff to recover an amount of Rs.21,00,000/- with 18% interest from the defendants and its assets. Today the above case is posted for payment of the balance court fee. An amount of Rs.1,67,760/- has to be paid as the balance court fee. I am informed that in spite of his earnest effort, he could not raise so much amount therefore he need some more time for paying the balance court fee. Plaintiff has serious contentions in the above case. In the above circumstances this honourable Court may be pleased to enlarge the time for paying the balance court fee by granting 1 month time from today. Here with a separate application is filed for the same. That may kindly be allowed. Otherwise it will cause irreparable injury and serious prejudice.” 3. In view of the submission made by the learned counsel appearing for the plaintiff that the plaintiff has filed an application for enlargement of time to pay the balance court fee, the suit was adjourned to 10.03.2016. On that day, the trial court allowed I.A No. 1211 of 2016 and granted the plaintiff time till 30.03.2016 to pay the balance court fee. The plaintiff did not even thereafter pay the balance court fee. R.F.A. No.730 of 2016 4 The court below did not, however, reject the plaint for non payment of balance court fee. Instead, the suit was directed to be called in the Adalath on 01.04.2016. The court below further directed that if the suit is not settled, the balance court fee shall be paid on or before 04.04.2016. The court below also directed that the suit be called again on 04.04.2016. On 04.04.2016, the suit was ordered to be called in the Adalath to be held on 08.04.2016 and the suit was adjourned to 11.04.2016 to await the award. On 11.04.2016, as no settlement was arrived at in the Adalath, the suit was adjourned to 12.04.2016, so as to enable the plaintiff to pay the balance court fee. Since the balance court fee was not paid, the court below rejected the plaint by the following order. “Plaintiff represented. Balance Court Fee is not paid despite last and final chance. Hence plaint is rejected for non payment of Balance Court Fee. No costs.” The said order is under challenge in this appeal. 4. We heard Sri. Imthiaz Ahamed, learned counsel appearing for the appellant and Sri. T.B. Thankappan, learned counsel appearing for the respondents. We have also gone through the lower court records. The materials on record R.F.A. No.730 of 2016 5 disclose that the court below had, by orders passed on 10.03.2016, 30.03.2016, 04.04.2016 and 11.04.2016 virtually granted to the plaintiff more than one month's time to pay the balance court fee. The last date stipulated for payment of the balance court fee was 22.02.2016. It was extended once, namely up to 08.03.2016 even without an application being filed in that regard. When an application was filed, by separate orders passed on the aforesaid dates, time was extended on four occasions up to 12.04.2016. The plaintiff had, in the application filed by him for enlargement of the time, prayed for only one month's time to pay the balance court fee. That time and additional time was also granted. It was in such circumstances that the plaint was rejected by order passed on 12.04.2016 for non payment of the balance court fee. Though it cannot be said that the court below has acted illegally in rejecting the plaint, having regard to the fact that the plaintiff, a contractor who had constructed the church building, which is the subject matter of the dispute, had pleaded inadequacy of funds as a reason for non-payment, we are of the opinion that taking a lenient view, the plaintiff should be afforded an opportunity to pay the balance court fee R.F.A. No.730 of 2016 6 and to have his grievance considered and decided on the merits. 5. The claim made in the plaint is that money is due from the Church and its Vicar for the works carried out by the plaintiff. The defendants have filed their written statement. Though the suit was presented on 09.10.2014, issues were framed only on 08.02.2016, more than an year thereafter. On terms of Section 4A, the balance court fee is payable only after issues are framed. The time limit stipulated is fifteen days therein. The court is also empowered to extend the time up to thirty days. The Apex Court has in **A. Nawab John & Ors. v. V.N. Subramaniyam** [2012 (3) KLJ 114] held that Section 149 empowers the court to accept payment of deficit court fee even beyond the period of limitation prescribed for filing of a suit, if the plaint is otherwise within the period of limitation. In the instant case, the respondents/defendants have no case that the suit as filed is barred by limitation. In such circumstances, as the plaint in the instant case was filed within the period of limitation and the reason stated for non payment of the balance court fee in time is inadequacy of funds, we are of the opinion that the impugned order should R.F.A. No.730 of 2016 7 be set aside and the appellant afforded an opportunity to pay the balance court fee, so as to enable him to have the suit tried and disposed of on the merits. We accordingly allow the appeal, set aside the impugned order and enlarge the time for payment of balance court fee by one month from today. We would have ordinarily granted only fifteen days time to pay the balance court fee, but having regard to the restrictions presently in force in withdrawing cash from banks, we deem it appropriate to grant one month's time. The court below shall, in the event of the appellant remitting the balance court fee within one month from today, namely on or before 10.02.2017, take the plaint back to file and try and dispose of the suit on the merits expeditiously. Needless to say, in the event of failure on the part of the appellant/plaintiff to pay the balance court fee within the time limit stipulated above, the order rejecting the plaint shall stand confirmed. The parties shall suffer their respective costs. ## **P.N.RAVINDRAN (JUDGE)** ## **P. SOMARAJAN (JUDGE)** DMR/-