IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 FAO.No. 221 of 2011 ---------------------------- AGAINST THE ORDER DATED 20/06/2011 IN IA.7309/2010 IN OS.1486/2009 of II ADDL.SUB COURT,THRISSUR .................... APPELLANTS (S):PETITIONERS-PLAINTIFFS: --------------------------------------------------------------- 1. MUHAMMAD, S/O. AMBALATHUVEETTIL ABDULRAHMAN, RESIDING AT ELAVALLY VILLAGE-DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. 2. ABDUL SALAM, S/O. PUZHANKARAYILLATH MOHAMMAD, RESIDING AT ELAVALLY VILLAGE-DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV. SRI.JIJO PAUL SMT.T.RESMI DAMODARAN RESPONDENT(S): DEFENDANTS: ---------------------------------------------- 1. GOPI, S/O. IYINIKUNNATH RAGHAVAN, KIZHAKKUMPATTUKARA DESOM, H.NO.157, PERINGAVU VILLAGE, THRISSUR TALUK. 2. SUBAIDA, D/O. KALAKATTIL VEETTIL THARAPPARAMBIL, ABDUL REHMAN, MAZHUVANCHERRY DESOM ERANALLOOR VILLAGE, TALAPPALLY TALUK, THRISSUR DISTRICT. 3. KERALA STATE, REPRESENTED BY DISTRICT COLLECTOR, THRISSUR. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 24/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- F.A.O.No.221 of 2011 ----------------------------------------- Dated, this the 24th day of October, 2011 J U D G M E N T K.M.Joseph, J. Appellants are the petitioners in an application filed under Order 33 Rule 1 of Code of Civil Procedure praying that they may be exempted from remitting balance court fee. The suit was one for declaration that Document No.2892/2004 of SRO, Ollukara is invalid and for perpetual injunction. The court fee payable was Rs.88,400/-. Appellants paid Rs.1/10 court fee. The balance being Rs.79,540/-, there is no means was their complaint. The court below has inter alia reasoned as follows: The Ist appellant has received advance sale consideration of Rs.4 lakhs. According to the averments in the petition filed by the appellants it is stated that the amount received was given to the 2nd appellant and using it the 2nd appellant purchased the B- schedule property. The very same claim is made in the affidavits. It is further found that Pw2, in cross examination has stated that the statement made in the affidavit is not true. Therefore, the court reasoned that if the claim of the Ist appellant that he has given the money received on 1.8.2009 to the 2nd appellant and he used it for assignment of B-schedule property is not true, such F.A.O.No.221 of 2011 -2- amount would be available with the Ist appellant to pay the balance court fee. Pw1 stated in cross examination that the 2nd appellant got assignment of the B-schedule property and started residing there about three years back. He was examined on 4.4.2011. If that be so, the court reasoned that the 2nd appellant obtained assignment of property by 2008. The advance was received on 1.8.2009. Contradiction was noted. That apart, we also notice that Pw1 has stated that he is engaged in conducting a shop selling car paint. He is paying rent of Rs.1,915/- for that shop room. 2. We heard the learned counsel for the appellants. We are not persuaded to hold that the decision of the court below requires interference. The appellants have failed to establish that they are without means to pay the balance court fee. Accordingly, we confirm the impugned order. However, we give six weeks' time from today to pay the balance court fee. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS