IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 RSA.No. 1183 of 2010() ---------------------- AS.48/2004 of SUB COURT, NEDUMANGAD .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- SURESHKUMAR.V,AGED 43 YEARS, S/O.VIDYADHARAN,REVATHI BHAVAN,V.P.1/651, MYLADI,PULIYARAKONAM PO, VILAPPIL VILLAGE,THIRUVANANTHAPURAM. BY ADV. SRI.P.RADHAKRISHNAN (1) SRI.MADHU RADHAKRISHNAN RESPONDENT(S): RESPONDENT/RESPONDENT/DEFENDANT ---------------------------------------------- MALLIKADEVI,D/O.SUJATHA,AGED 32 YEARS, KATTUKATTACKAL PUTHEN VEEDU,MYLAM, CHERIYAKONNI PO,PIN 695 013,ARUVIKKARA VILLAGE, THIRUVANANTHAPURAM. ADV. SRI.RAM MOHAN.G. FOR R1 SRI.G.P.SHINOD FOR R1 SRI.MANU V. FOR R1 SRI.GOVIND.P. FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.1183 of 2010 ............................................ DATED THIS THE 3rd DAY OF NOVEMBER, 2011 JUDGMENT Plaintiff in O.S.412 of 2003 on the file of Additional Munsiff Court, Nedumangad is the appellant. Defendant is the respondent. Suit was filed for specific performance of the agreement for sale. Suit was dismissed. A.S.48 of 2004 was filed before Sub Court, Nedumangad challenging the decree. At the time of filing of the appeal, only 1/3rd of the court fee was paid. After admission of the appeal, the balance court fee was not paid in time. I.A.669 of 2007 was filed later to receive the balance court fee remitted after a delay of 1064 days by extending the period and condoning the delay under Sections 148, 149 and 151 of Code of Civil Procedure. 2. Learned Sub Judge by order dated 24.8.2007 dismissed the application holding that there is a delay of more than three years in paying the balance court fee. Consequently, the appeal was rejected. It is challenged in the second appeal. RSA 1183/2010 2 3. Second appeal was admitted formulating the following substantial question of law. “When first appeal was filed challenging the dismissal of the suit for specific performance on agreement for sale, and the appellant had remitted the balance court fee though after a delay of 1064 days, whether first appellate court was justified in not receiving the balance court fee and dismissing the application and consequently the appeal and thereby denying an opportunity to the appellant to have a decision on merits”. 4. Learned counsel appearing for appellant and respondent were heard. 5. It cannot be said that there was an inordinate delay of more than three years in remitting the balance court fee. Though it could be said that the delay was not properly explained, the question is whether an opportunity is to be granted to the appellant to have a decision on merits. Considering the entire facts and circumstances of the case, interest of justice warrants granting of opportunity to the appellant, though there was considerable delay in payment of balance court fee. But the delay and consequential prejudice caused to the respondent could RSA 1183/2010 3 necessarily be compensated. In such circumstances, appeal will stand allowed and balance court fee remitted before Sub Court, Nedumangad will stand received and A.S.48 of 2004 will stand re-admitted on the file of Sub Court, Nedumangad on the appellant paying a cost of Rs.1000/- to the counsel appearing for the respondent within a period of two weeks from today, failing which appeal will stand dismissed. On such payment, appeal will stand allowed and first appeal re-admitted on the file of Sub Court, Nedumangad. In that event, parties shall appear before Sub Court, Nedumangad on 1.12.2011 and in that case, learned Sub Judge to dispose the first appeal on merits. M.SASIDHARAN NAMBIAR, JUDGE lgk In compliance with the direction in the judgment dated 03/11/2011 in R.S.A.1183/2010, the appellant's counsel has filed a memo dated 03/11/2011 bearing c.f.No.6652/2011 stating that cost of Rs.1000/- has been paid to the respondent's counsel within the stipulated time. sd/- Registrar(Judicial)