IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 5TH OCTOBER 2010 / 13TH ASWINA 1932 RFA.No. 688 of 2009() --------------------- AGAINST THE ORDER DATED 24/06/2009 IN IA.712/09 IN OS.124/2008 OF SUB COURT, THIRUVALLA .................... APPELLANT/PETITIONER/PLAINTIFF: ---------------------------------------------------- T.M. MUHAMMED KUNJU(WRONGLY SHOWN AS T.H.KUNJU MOHAMMED IN ORDER), THEKKEKKARA VEETTIL, KIZHAKKEN MUTHOOR MURIYIL KUTTAPPUZHA VILLAGE, THIRUVALLA TALUK. BY ADV. SRI.P.HARIDAS RESPONDENT/COUNTER PETITIONER/DEFENDANT: -------------------------------------------------------------------------- K.M. JACOB, KOORAYIL PLAVILA VEETTIL, PERUMANOOR MURI, ARACKAL VILLAGE, PATHANAPURAM TALUK, KOLLAM DIST. ADV. SRI.SAJITH KUMAR V. FOR R SRI.RINOY JOSEPH FOR R THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Thottathil B.Radhakrishnan & P.Bhavadasan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = R.F.A.No.688 of 2009-C = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 5th day of October, 2010. Judgment Thottathil B.Radhakrishnan,J. 1.This is the plaintiff's appeal against the rejection of plaint on the ground of non-payment of balance court fee. The valuation of the suit is Rs.20,40,000/- and the court fee to be paid is Rs.1,81,600/-. The suit is based on a cheque. The transaction appears to be in relation to a building contract. We have seen a copy of the written statement also. There is a criminal case pending before the Judicial Magistrate of the First Class, Changanassery. We do not express anything further on facts only to exclude any prejudice at trial of the criminal case and also because, we are inclined to think that the case in hand also needs to be provided with an order RFA688/09 -: 2 :- of remand to enable an adjudication on merits. 2.As of now, the plaintiff says that he intends to move the trial court even for exemption from payment of balance court fee in terms of Order 33 of the Code of Civil Procedure. We do not express anything on the merits of that also. 3.However, taking into consideration the totality of the facts and circumstances of the case and the plea of the plaintiff that he was not able to pay balance court fee in time because of the insufficiency of funds, we take it as sufficient ground to set aside the impugned rejection of the plaint. In the result, this appeal is allowed on condition that the appellant pays the respondent an amount of Rs.5,000/- as costs payable to the defendant's counsel appearing before this Court within a period of three weeks. We grant time till the last working day of November, 2010 for RFA688/09 -: 3 :- the appellant to pay balance court fee before the court below, subject to his right to move that court for any relief under Order 33, in which event the time fixed above would be immaterial for the court below to pass such orders as it may deem fit. The parties will appear before the court below on 27.10.2010. Thottathil B.Radhakrishnan, Judge. P.Bhavadasan, Judge. Sha/2110