IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 RFA.No. 137 of 2009() --------------------- OS.895/2007 of I ADDL.SUB COURT,ERNAKULAM .................... APPELLANT(S): PLAINTIFF: ------------------------------------- SCARIA, AGED 55 YEARS, S/O.MATHU, PAVANAKKATTU KUZHIYANJAL, KAKKANADU KARA, KANAYANNUR TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.P.V.ANILKUMAR SRI.E.D.GEORGE RESPONDENT(S): DEFENDANT: ------------------------------------------- CHINNAMMA KURIAN, AGED 69 YEARS, W/O.LATE KURIAN, ATHANIKKAL HOUSE, TRIPUNITHURA P.O., NADAMA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. ADV. SRI.ABRAHAM P.GEORGE FOR R1 SMT.K.V.LEKSHMY FOR R1 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A. No.137 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of July, 2009. JUDGMENT Raman, J, Appellant is the plaintiff. Plaint was rejected for non- payment of court fee by the impugned order. Admittedly court fee was not paid within time as allowed by law. It is also admitted that the court had granted sufficient time for payment of court fee in exercise of its jurisdiction by enlarging the time earlier fixed. Still he did not pay the court fee. It was in the circumstances that the plaint was rejected. In paragraph 5 of the appeal memorandum it is stated that due to cardiac complaint he could not raise the balance court fee and contact his counsel in time. No materials are placed before us to show that he was admitted as an inpatient due to any cardiac problem. However, we notice that the defendant was set exparte and the case was posted for payment of balance court fee. Therefore both were at fault. In the circumstances, in the interests of justice, we set aside the order rejecting the plaint. The suit will stand restored to file on condition that the balance court fee is paid within one month from now. The ex parte order passed against the defendant is also set aside. R.F.A.137/2009. 2 It will be open to the defendant to file written statement, if not already filed within the above said period. Thereafter the court will proceed to dispose of the suit in accordance with law after framing necessary issues. However, in case, the court fee is not paid within time, the appellant will lose the benefit of this order and the Appeal will stand dismissed. P.R. Raman, Judge P. Bhavadasan, Judge sb.