IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 FAO.No. 369 of 2007() --------------------- AGAINST THE ORDER DATED 10/11/2006 IN IA. 1001 /2006 IN OS.84/2002 of ADDL.SUB COURT, ALAPPUZHA APPELLANT/PETITIONER/PLAINTIFF ----------------------------------------- THOMAS JOSEPH S/O.JOSEPH JOSEPH, PARAPASSERIL HOUSE, NEHRU TROPHY WARD, ARYADU SOUTH VILLAGE, ALAPPUZHA REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, RAJENDRAN N.T., S/O.THANKAPPAN, NILAMNIKARTHIL HOUSE, AVALOOKUNNU P.O., ALAPPUZHA. BY ADV. SRIR.AZAD BABU RESPONDENTS: RESPONDENT/DEFENDANT ------------------------------------------------- 1. RAMACHANDRAN NAIR, S/O.KUNJUKRISHNA PILLAI, AMBIKA BHAVANAM, OPP.UDUPPI TEMPLE, THONDANKULANGARA WARD, ALAPPUZHA. 2. BIJUKUMAR, S/O.GOPALAKRISHNA MENON, KALUTHARA VEEDU, PUNNAPRA P.O., PUNNAPRA VILLAGE, ALAPPUZHA. ADV. SRI.A.KRISHNAN FOR R2 SRI.V.SATHEESH FOR R2 SRI.K.N.VENUGOPALA PANICKER FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 02/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kurian Joseph & P.N.Ravindran, JJ. ===================== F.A.O.No.369 of 2007 ===================== Dated this the 2nd day of January, 2009. JUDGMENT Kurian Joseph,J. The appeal is filed against the order dated 10.11.2006 in I.A.No.1001 of 2006 in O.S.No.84 of 2002 on the file of the Additional Sub Judge, Alappuzha. The short facts leading to the case are as follows: 2. The appellant is the plaintiff. The suit was instituted for recovery of money and for setting aside a sale deed, which according to the petitioner, is a sham document. The plaintiff paid the court fee to the tune of Rs.25,000/- at the time of institution of the suit. Thereafter, it was found that the court fee paid was insufficient and that the plaintiff was called upon to pay a further amount of Rs.6,925/-. The plaintiff contended that he had no means to pay the balance court fee and permission was sought to continue the suit as an indigent person. The application was posted on several dates for examination of the plaintiff. It is seen from the records that the same was dismissed on 19.11.2005 for default. Consequently on 21.11.2005 the suit was dismissed, obviously for non-payment of the balance court fee. 3. At the outset, we must state that the suit could not have been dismissed, it could only have been rejected. So the order dated 21.11.2005 has to be set aside. That apart if an application for permission to file/continue a suit as an indigent person has been rejected, it is the requirement under Order 33, Rule 7 to give a period of FAO 369/07 -: 2 :- 30 days time to the plaintiff to pay the balance court fee. We do not find that such an opportunity was given to the plaintiff. For that reason also, the order is liable to be set aside. We are not unmindful of the submissions of the learned counsel appearing for the respondent that the plaintiff has not co-operated with the court and that the case was being adjourned on several occasions. But the order passed by the trial court is clearly untenable. The learned counsel for the appellant submits that in the meanwhile, the plaintiff is in a position to pay the balance court fee and hence he may be given an opportunity to continue the suit. 4. In the above circumstances, we set aside the order dated 10.11.2006 in I.A.No.1001 of 2006 in O.S.No.84 of 2002 on the file of the Additional Sub Court, Alappuzha. The dismissal of I.A.No.2046 of 2004 is confirmed. However, the plaintiff/appellant is given three weeks time from today to pay the balance court fee. The parties shall appear before the court below on 21.1.2009. In view of the permission given to the plaintiff to pay the balance court fee, the order dated 21.11.2005 dismissing/rejecting the suit is also set aside. We make it clear that if the court fee is not paid as directed above, the suit will stand dismissed. Kurian Joseph, Judge. P.N.Ravindran, Judge. ess 5/1 FAO 369/07 -: 3 :-