IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 6TH MARCH 2008 / 16TH PHALGUNA 1929 RFA.No. 648 of 2007() --------------------- OS.75/2006 of SUB COURT, THIRUVALLA .................... APPELLANTS/PLAINTIFFS: ---------------------- 1. MR. TIBU THOMAS, S/O. LATE P.T.THOMASKUTTY, AGED 26 YEARS, MUNDANILKUNNATHIL HOUSE, THELLIYOOR P.O., VENNIKKULAM. 2. BRIJEETHAMMA THOMAS, W/O.LATE P.T.THOMASKUTTY, AGED 59 YEARS, MUNDANILKUNNATHIL HOUSE, THELLIYOOR P.O., VENNIKKULAM. 3. JOSEPH THOMAS, S/O.LATE P.T.THOMASKUTTY, AGED 24 YEARS, MUNDANILKUNNATHIL HOUSE, THELLIYOOR P.O., VENNIKKULAM. (APPELLANTS 2 & 3 REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER 1ST APPELLANT). BY ADV. SRI.JACOB P.ALEX RESPONDENTS: DEFENDANTS: ------------------------ 1. M/S. SAM AND SAJ AGENCIES, SUMALAYAM, KAVIYOOR, THIRUVALLA (REPRESENTED BY ITS MANAGING PARTNER, SUNILKUMAR,S/O.M.K.GOPALA- KURUP, SUMALAYAM @ MURINGOOR THOTTATHIL,KAVIYOOR, THIRUVALLA). 2. SUNILKUMAR, S/O.M.K. GOPALAKURUP, SUMALAYAM @ MURIINGOOR THOTTATHIL, KAVIYOOR, THIRUVALLA (MANAGING PARTNER, M/S.SAM AND SAJ AGENCIES). BY ADV. SRI.C.S.MANU SRI.S.K.PREMRAJ SRI.ANOOP JOSEPH SRI.ANOOP V.NAIR SRI.ASBILASH AKBAR SRI.T.B.SIVAPRASAD THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 06/03/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & V.K.MOHANAN, JJ. ------------------------------- R.F.A.NO.648 OF 2007 -------------------------------- Dated this the 6th day of March, 2008 JUDGMENT Raman, J. This is an appeal against the deemed order rejecting the plaint for non-payment of the court fee, on the day on which the case stood posted. We have issued notice to the respondents. They have entered appearance through counsel and we have heard the parties. 2. Learned counsel appearing for the respondent placing reliance on the decision of a Division Bench of this Court reported in Shajahan v. Kamala Narayanan (1997 (1) KLT 569) contended that the court though has power under Section 149 of the C.P.C. to enlarge the time for payment of the court fee, it is only in the rarest of rare cases that such power could be exercised. The appellant on the other hand would submit that this is a case where the suit was laid for recovery of money and there is ample evidence in the case to show that money has been received. Further he also submits that the plaintiffs are wife and children of the deceased Thomaskutty, who had advanced loan to the defendants. We have anxiously considered the contention -3- R.F.A.No.648/2007 raised by the parties. As per the order passed by the court below, the suit was rejected for non-payment of the court fee on the day on which the case stood posted. It is true that no application was made for enlargement of time for payment of the court fee and therefore, we cannot find fault with the court below in rejecting the plaint. The valuation of the plaint is for an amount of Rs.17,68,862/-. It is after payment of 1/10 of the court fee that the suit was laid. It is contended that the non-payment of the balance court fee was not intentional and happened due to financial stringency. Since the deficit of the court fee to be paid is a huge amount, the amount could not be arranged for payment of court fee. Further it is for the amount said to have been paid by the husband that the wife and children have instituted the suit. Considering the totality of the circumstances, we think that an opportunity should be given to the appellants to pay the court fee. However, it can be granted only on payment of cost. In the circumstances, we direct that if the appellants pay the deficit court fee within a period of three weeks from today, the suit will stand restored to file. However, this is subject to further condition that an -4- R.F.A.No.648/2007 amount of Rs.5,000/- (Rupees five thousand) shall be paid by way of cost to the respondents through counsel appearing in the above appeal within two weeks, failing either of the conditions the appeal will stand dismissed. Appeal is allowed as above. P.R.RAMAN, Judge. V.K.MOHANAN, Judge. kcv.