IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND MARCH 2010 / 1ST CHAITHRA 1932 RSA.No. 274 of 2009() --------------------- AS.199/2004 of ADDL.DISTRICT COURT,KOTTAYAM OS.74/2003 of MUNSIFF COURT, ETTUMANOOR .................... APPELLANT/APPELLANT/PLAINTIFF: ----------------------------- K.N.CHANDRAN, S/O.NARAYANACHARY CHANDRABHAVAN HOUSE,MANNANAM P.O.,MANNANAM KARA ATHIRAMPUZHA. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT/RESPONDENT/DEFENDANT: --------------- REJI SEBASTIAN, S/O. DEVASIA, MANGAYIPARAMBIL, KUDAMALLOOR PO,AYAMANAM VILLAGE KOTTAYAM. ADV. SRI.SARVOTHAMAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.274 of 2009G --------------------------------------- Dated this 22nd day of March, 2010 JUDGMENT Heard both sides. 2. The second appeal arises from judgment and decree of learned Additional District Judge, Kottayam in A.S.No.199 of 2004 rejecting the memorandum of first appeal for non payment of balance court fee. Appellant filed suit to set aside a registered agreement No.1103 of 2003 and for prohibitory injunction. Respondent while resisting the suit filed a counter claim for specific performance of the said agreement. After framing issues learned Munsiff posted the case for payment of balance court fee but appellant did not pay the balance court fee and accordingly plaint was registered under Order 7 Rule 11 of the Code of Civil Procedure (for short, “the Code”). The counter claim was posted for evidence and as there was no representation for appellant, respondent filed affidavit and based on that affidavit and Exts.B1 to B3 produced on behalf of the respondent the counter claim was allowed. Appellant challenged the decree on the counter claim before the first appellate court in A.S.No.199 of 2004. That appeal was admitted but appellant did not pay the balance (2/3rd) court fee which according to learned Additional District Judge was payable by the appellant. The consequence was rejection of memorandum of appeal R.S.A.No.274 of 2009 2 as first above stated. Hence the second appeal. The following substantial question of law is framed for a decision “whether first appellate court went wrong in not granting appellant an opportunity to present his case on merit?”. 3. It is contended by learned counsel for appellant that since wife of the appellant was undergoing treatment for cancer for quite long, appellant was not able to pay the balance court fee within time. It is also the contention of learned counsel that in view of the decision of Division Bench of this court in Thanappan Vs. Hassan Kappor (2003(2) KLT 39) appellant was not liable to pay ad veloram court fee in the first appellate court. Learned counsel for respondent would contend that there is no justification in non payment of balance court fee within time. According to learned counsel, the decision relied on by learned counsel has no application since before the first appellate court appellant was challenging decree of the trial court on merit on the counter claim. 4. So far as the contention that appellant was not liable to pay court fee exceeding Rs.10/- on the first appeal is concerned, I am afraid that argument of learned counsel cannot be accepted for, decision relied by the learned counsel related to an appeal against the decree rejecting the plaint while, it is not disputed before me that the appeal before the first appellate court concerned decision of the trial court on the counter claim on merit though, in the absence of the R.S.A.No.274 of 2009 3 appellant. Hence appellant was liable to pay court fee as provided under section 52 of the Court Fees Act (for short, “the Act”) before the first appellate court. 5. Then the next question is whether appellant should be given an opportunity to pay the balance court fee. Under section 148 of the Code, court has power to enlarge time for payment of balance court fee. It is stated by learned counsel for appellant that the failure to pay the balance court fee is not willful but because wife of the appellant was undergoing treatment for cancer for quite long time. Having regard to the circumstances stated by learned counsel I am inclined to think that appellant should be given an opportunity to pay balance court fee. 6. It is pointed out by learned counsel that in this second appeal appellant has paid Rs.920/- by way of court fee. Going by the decision in Thanappan Vs. Hasson Kappor he was obliged to pay only Rs.10/-. That argument, so far as court fee payable in the second appeal is concerned is to be accepted since what it under challenge in this second appeal is the judgment and decree of the first appellate court rejecting the memorandum of appeal without investigation. Hence appellant was required to pay only Rs.10/- by way of court fee in the second appeal. Appellant is entitled to refund the balance amount. Resultantly the second appeal is allowed. Judgment and decree of the first appellate court are set aside and the matter is remitted to the court of learned Additional District Judge, Kottayam for fresh R.S.A.No.274 of 2009 4 consideration. Appellant shall pay balance court fee payable under section 52 of the Act on or before 08-04-2010. Parties shall appear before the learned Additional District Judge on 08-04-2010. Registry shall refund to the appellant court fee paid in excess of Rs.10/- on the second appeal. THOMAS P JOSEPH, JUDGE Sbna/