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. 444 of 2008() --------------------- OS.90/2004 OF ADDITIONAL SUB COURT, KOTTAYAM .................... APPELLANTS/ PLAINTIFFS ------------------------------------------ 1. M/S.NINANS INDUSTRIAL AND TECHNOLOGICAL EDUCATIONAL SOCIETY, REG.NO.K-241/95, PULIMOODU JUNCTION, KOTTAYAM-1,REP.BY ITS CHAIRMAN DR.RAJAN VARGHESE, PANACKAMATTOM, PAKKIL KARA, NATTAKAM VILLAGE, KOTTAYAM DISTRICT. 2. DR.RAJAN VARGHESE, S/O.P.M.VARGHESE, AGED 54, RESIDING AT PANACKAMATTOM, PAKKIL KARA, NATTAKAM VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.TOM K.THOMAS RESPONDENT(S): DEFENDANTS --------------------------------------------- 1. BALAKRISHNAN PILLAI, S/O.NARAYANA PILLAI AGED ABOUT 73 YEARS, OF ARACKAL KANNAKU KOLLASSERIL, KARAPUZHA KARA, KOTTAYAM, NOW RESIDING AT CHANNYIL THEVALAKKATTU HOUSE, KULASHEKARAMANGALAM P.O, VAIKOM. 2. LATHA JAYAKUMAR, D/O.RADHAMMA, AGED 35 YEARS, RESIDING AT KIZHAKKEKUTTU HOUSE, KUMARANALLOOR P.O, PERUMBIAKKUTTUSSERY KARA, PERUMBAIKKADU VILLAGE, KOTTAYAM TALUK. 3. NARAYANAN NAIR, S/O.NANNU NAIR, AGED 62 YEARS, DRIVER, RESIDING AT KIZHAKKEKUTTU HOUSE, KUMARANALLOOR P.O, PERUMBAIKKATTUSSERY KARA, PERUMBAIKKADU VILLAGE, KOTTAYAM TALUK. ADV. SRI.M.P.SREEKRISHNAN FOR R1 SMT.SHAHNA KARTHIKEYAN FOR R1 ADV.SRI.M.P.MADHAVANKUTTY FOR R2 & R3 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.444 of 2008-C = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 5th day of October, 2010. Judgment Thottathil B.Radhakrishnan, J. This appeal is against an order rejecting the plaint. The suit for specific performance was contested by the defendants bound by the agreement by pleading that they have already transferred the property to yet another. The plaintiffs, therefore, applied for leave to amend the suit to make it as one for recovery of money, that is to say, recovery of the advance already paid. It is agreed by both sides that the court below had not considered the application for amendment, but yet, had rejected the plaint on the premise that the balance court fee was not paid. Under such circumstances, we are inclined to hold that the impugned order of rejection of RFA444/08 -: 2 :- plaint is liable to be set aside. In the result, this appeal is allowed setting aside the impugned judgment and decree. The court below is directed to take back the plaint on file and proceed with it after first considering any application pending for amendment of plaint. The parties will appear before the court below on 28.10.2010. Thottathil B.Radhakrishnan, Judge. P.Bhavadasan, Judge. Sha/1210