IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 23RD JUNE 2008 / 2ND ASHADHA 1930 RFA.No. 670 of 2004(C) ---------------------- OS.443/2001 of I ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT/PLAINTIFF: --------------------- A.M. KASSIM, S/O. ALIYARKUNJU, AGED 54 YEARS, RESIDING AT ALIYAR BHAVAN, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT: DEFENDANT: ---------------------- PRASANNA KUMARI, D/O. GOMATHY, HINDU, AGED ABOUT 38 YEARS, RESIDING AT CHARIVUVILAKATHU VEEDU, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. BY ADV. SRI.B.JAYASURYA FOR R1 THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 23/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & T.R.RAMACHANDRAN NAIR, JJ. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ R.F.A.No.670 of 2004-A ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 23rd day of June, 2008 J U D G M E N T P.R.RAMAN, J. The plaintiff is the appellant. The plaint was rejected for non payment of the court fee against which this appeal is filed. This is a case in which defendant has not even filed a written statement on the date on which the plaint was rejected. 2. According to the respondent, in this case, the appeal itself was filed belatedly. A petition for condonation of delay was filed before this Court and considering the averments, delay was condoned. In the very nature of the averments made, we find that there was a communication gap between the counsel and the appellant. It is true that the day on which the matter came up for consideration there was no application for enlargement of time for payment of the court fee. In such circumstances, the court had no alternate but to reject the plaint for non payment of the court fee. But as already indicated, the non remittance of the court fee cannot be stated to be due to any default on the part of the appellant. If only the appellant was told that the court fee has to be remitted on or before the particular date, he would have R.F.A.NO.670/2004-A -:2:- either remitted the court fee or, in case there is any difficulty for him, he would have approached the counsel with plausible reasons for it. 3. In the circumstances, we find that this is fit case where an opportunity should be given to the appellant to remit the court fee. Accordingly, we set aside the order passed by the court below and remand the case for fresh consideration giving 30 days time from today to the appellant for remitting the court fee and, in case he does not remit the court fee within the said time, this appeal will automatically stand dismissed. On the other hand, if he remits the court fee within the said period, the matter will be considered on merits. 4. It may be noticed in this connection that even though the defendant is set ex parte and now that we have give an opportunity to the appellant to contest the matter, such an opportunity shall also be given to the defendant. Accordingly, the defendant is given three weeks time from today to file his written statement before the court below. The appeal is allowed as above. P.R.RAMAN, Judge T.R.RAMACHANDRAN NAIR, Judge ms