IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932 RFA.No. 65 of 2010() -------------------- OS.891/2008 of I ADDL.SUB COURT,ERNAKULAM .................... APPELLANT/PLAITIFF -------------------------------------- VIJAYAKUMAR, S/O. MADHAVAN, EDANATTUVEETTIL, KADAVANTHRA.P.O., ELAMKULAM VILLAGE, KNAYANNUR TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH) RESPONDENT(S): DEFENDANT ------------------------ THANKAMMA, W/O. K.A.CHANDRAN, MANAGATTUPARAMBIL, THANTHONNITHURUTHU, MULAVUKAD VILLAGE, ERNAKULAM DISTRICT. ADV. SRI.S.SUDHISH KUMAR THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------------------- R.F.A.No.65 OF 2010 ------------------------------------------- Dated this the 17th day of June, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. This appeal is against an order rejecting a plaint for non- payment of balance court fee, in spite of 60 days being granted by the court below. We take into consideration a very crucial fact. The defendant had filed a counter claim. That has been taken up to be proceeded with. This means that the plaintiff's claim can be considered afresh only if the cause of action survives enabling the institution of a fresh suit. The rejection of the plaint may also create hurdles even during the trial of the counter claim. Ends of justice therefore demand that the impugned order rejecting the plaint for non-payment of balance court fee be set aside. Taking all the facts and circumstances into consideration, we direct that the impugned order will stand set aside on condition that the appellant pays the defendant an RFA.65/10. 2 amount of Rs.5,000/- as costs, payable to the counsel appearing for the defendant respondent before this Court, within three weeks and remits the balance court fee within the said period of three weeks from today. The appeal is allowed accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.18/06. In compliance of the direction in the judgment dated 17.06.2010 in R.F.A.65/2010, the appellant's counsel has paid Rs.5,000/- (Rupees five thousand only) by way of cost to the counsel appearing for the defendant-respondent, vide memo dated 01.07.2010 c.f 3619/2010. It is further stated that the balance court fee has been remitted in the court below on 03.07.2010 (c.f No.11711/2010) vide memo dated 16.07.2010, c.f 3968/2010. Sd/- Registrar (Judicial)