IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 WP(C).No. 27710 of 2008(W) ------------------------------------- AGAINST THE ORDER DATED 04/12/2007 IN IA 3749/07 IN OS.257/2005 of PRL.SUB COURT,IRINJALAKUDA .................... PETITIONERS : ----------------- 1. AMBUJAKSHI, AGED 52 YEARS, W/O.KEEDAYI SIVARAMAN, KARAYAMPADAM DESOM, VARANTHARAPPILLY VILLAGE, MUKUNDAPURAM TALUK. 2. SIVARAMAN, S/O.KIDAYI KUNJAYYAPPAN, KARAYAMPADAM DESOM,VARANTHARAPPILLY VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT : ----------------- SUNIL KUMAR, S/O.VALLAN KOCHAKKAN, KARAYAMPADAM DESOM, VARANTHARAPPILLY VILLAGE, MUKUNDAPURAM TALUK. ADV. SRI.P.VIJAYA BHANU SRI.M.GEORGE THOMAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27710 of 2008(W) APPENDIX PETITIONERS EXHIBITS : EXT.P1: TRUE COPY OF PLAINT IN O.S.257/05 FILED BEFORE THE PRINCIPAL SUB COURT, IRINJALAKUDA EXT.P2: TRUE COPY OF JUDGMENT IN O.S.257/05 OF THE PRINCIPL SUB COURT, IRINJALAKUDA EXT.P3: TRUE COPY OF JUDGMENT IN C.R.P.482/07 DATED 04.06.2007 OF THE HON'BLE HIGH COURT EXT.P4: TRUE COPY OF APPLICATION I.A.3749/07 IN O.S.257/05 BEFORE PRINCIPAL SUB COURT, IRINJALAKUDA EXT.P5: TRUE COPY OF ORDER DATED 04.12.2007 IN O.S.257/05 -TRUE COPY- P.A. TO JUDGE pac K.P. BALACHANDRAN, J. ------------------------------------- W.P(c) No. 27710 of 2008 ---------------------------- Dated this the 19th day of November, 2008 JUDGMENT Heard counsel on both sides. The petitioners are the plaintiffs in O.S. No.257 of 2005 on the file of the Sub Court, Irinjalakkuda, which was decreed ex parte by Exhibit P2 judgment. As per decree they were allowed to realise Rs.2,00,000/- (Rupees Two lakhs only) with interest at 6% per annum from 7/06/2004 (date of the suit) till realisation from the defendants. It is submitted that the suit was being instituted by the plaintiffs as indigent persons they being unable to pay court fee and that is evident from Exhibit P1 copy of plaint. In Exhibit P2 judgment the court directed as follows; “ It is directed to calculate the court fee and intimate the collector to recover it with copy of decree.” It had not been mentioned from whom it was to be realised. The petitioners approached this court filing C.R.P. No. 482 of 2007 for a direction being given to the court below to enter a finding as to who is liable to pay the court fee and this court vide Exhibit P3 order permitted the petitioners to move the court below under Section 152 of the Civil Procedure Code for getting a direction in that behalf since it is an accidental omission or mistake committed by the court. Accordingly, petitioners/plaintiff filed Exhibit P4 petition praying that they may be W.P(c) No. 27710/2008 2 exonerated from paying the court fee and that the court fee be ordered to be recovered from the first defendant against whom decree has been passed and to amend the decree and judgment accordingly. However, by Exhibit P5 order the court observed it is for the plaintiffs to pay the court fee and hence decree and judgment will be amended as follows stating that the plaintiffs are liable to pay court fee. The amendment so incorporated is as follows; “ it is directed to calculate the court fee and intimate the collector to recover from the plaintiffs with a copy of the decree.” It is true that the primary liability to pay court fee is on the petitioners who are plaintiffs. But, however the suit having been decreed vide Exhibit P2 judgment with costs as against the first respondent the primary liability on the plaintiffs to pay the court fee can be cast on the first respondent/first defendant though that aspect is not made mention of in the judgment or decree. Hence, I direct that the collector shall proceed to recover the court fee payable by the plaintiffs/petitioners from the respondent/defendant who is liable under the decree to pay the decreed amount as also the costs in the suit including the court fee to the petitioners/plaintiffs. This writ petition is disposed of with the above directions. K.P. BALACHANDRAN, JUDGE scm