IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 23RD JANUARY 2009 / 3RD MAGHA 1930 RFA.No.595 of 2008 ----------------------- OS.299/2007 of SUB COURT,KOZHIKODE .................... APPELLANT/PLAINTIFF: ------------------------- K. ABOO, SON OF ALIKUTTY, AGED 54 YEARS, KARAT HOUSE, KODUVALLY DESOM, KOZHIKODE TALUK. BY ADV. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH RESPONDENT/DEFENDANT: ------------------------------- B.S. INVESTMENTS, 48 GENERAL MUTHAYYA STREET, 1ST FLOOR, SOWCARPET, CHENNAI - 600 079, TAMIL NADU STATE. THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & P.R. RAMACHANDRA MENON, JJ. --------------------------------------- R.F.A.No.595 OF 2008 --------------------------------------- Dated this the 23rd day of January, 2009. J U D G M E N T Kurian Joseph, J. The plaintiff in O.S.No.299/2007 on the file of the Sub Court, Kozhikode is the appellant. The suit was rejected under Order VII Rule 11(a) of the Code of Civil Procedure for non payment of balance court fee. Despite service of notice in the delay petition, there is no appearance. Hence it is not necessary to take fresh notice by way of publication. 2. Having regard to the facts as stated in the memorandum of appeal, we are of the view that the appellant should be given a fresh opportunity to prosecute the appeal on merits by granting some time to pay the balance court fee, on terms. Accordingly, we set aside the judgment under appeal. The appellant-plaintiff is permitted to pay the balance court fee within a period of one month from today. The appellant will also pay R.F.A.No.595/08 2 costs to the tune of Rs.3,000/- (Rupees three thousand only) to the Kerala High Court Legal Service Committee within a period of two weeks from today. If any of the conditions as above are not complied with, the appeal will stand dismissed. KURIAN JOSEPH JUDGE P.R. RAMACHANDRA MENON JUDGE smp The appellant has paid the cost amount of Rs. 3,000/- ( Rupees three thousand only) to the Kerala High Court Legal Service committee on 03/02/2009 (vide memo dated 04/02/2009, C.F. No. 687/2009) and deposited the balance court fee of Rs. 58,870/- before the Sub Court, Kozhikode in O.S. No. 299/2007 C.F No. 2901/2009 (vide memo dated 26/02/2009, C.F. No. 1148/2009) within the time stipulated in the judgment in R.F.A. No. 595/2008 dated 23/01/2009. Registrar (Judicial) R.F.A.No.595/08 3 KURIAN JOSEPH & P.R. RAMACHANDRA MENON, JJ. R.F.A. No. 595 OF 2008 J U D G M E N T 23.01.2009