IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 RSA.No. 924 of 2008() --------------------- AS.14/2007 of DISTRICT COURT, THALASSERY OS No.46/98 OF THE SUB COURT PAYYANNUR .................... APPELLANT/DEFENDANT: ---------------------------------------- KUTTIAN VALAPPIL ABOOBACKER, S/O.KUNHAMMAD, AGED 51 YEARS, KUTTIAN VALAPPIL HOUSE, NERUVAMBRAM, P.O.SREESTA, TALIPARAMBA TALUK. BY ADV. SRI.M.RAMESH CHANDER RESPONDENT(S): RESPONDENT/PLAINTIFF: ------------------------------------------------------------------------- KUTTIAN VALAPPIL HAMZA, S/O.KUNHAMMAD, AGED 44 YEARS, EZHOME, NARIKKODE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No. 924 of 2008 = = = = = = = = = = = = = = Dated this the 19 th day of November, 2008 JUDGMENT The defendant in O.S.No.46 of 1998 on the file of the Sub Court, Payyannur is the appellant in this second appeal. The said suit was one for damages to the tune of Rs. 2 lakhs on the ground of malicious prosecution. The learned Sub Judge after trial came to the conclusion that the defendant had initiated criminal proceedings against the plaintiff for an offence punishable under Section 420 IPC, that the said proceedings terminated in favour of the plaintiff, that the plaintiff was acquitted of the charge and that there was no reasonable or proper cause for the defendant to initiate criminal prosecution against the plaintiff and that far from carrying the law into effect, the prosecution was founded on malice. However, after evaluating the expenses incurred etc. the trial court granted a decree only for Rs.12,000/- with interest at the rate of 6% per annum from the date of the suit till realisation. The said decree was passed on 24.10.2001. Aggrieved by the decree passed by R.S.ANo.924 of 2008 2 the trial court, the appellant filed an appeal before the District Court, Thalssery as A.S.No.14 of 2007. The appeal was filed with a delay of 4 years and 339 days. The appeal was therefore accompanied by I.A.No.104 of 2007 seeking to condone the delay. The reason put forward in support of the delay was impecunious circumstances and inability to pay the court fees amounting to Rs.13,300/- being the court fee payable on the suit claim of Rs.2 lakhs. The lower appellate court was not inclined to accept the said explanation as sufficient cause to condone the delay. I.A.No.104 of 2007 was accordingly dismissed and consequently the appeal was dismissed as time barred. It is aggrieved by the said dismissal that the defendant/appellant has preferred this second appeal. 2. As rightly observed by the lower appellate court while disposing of I.A.No.104 of 2007, the defendant was bound to pay court fee only for the decree amount of Rs.12,000/- plus the accrued interest and that even if he had to pay court fee for the entire suit claim, still the delay was inordinate and the defendant was guilty of gross negligence in not filing the appeal within time. Such being the situation, I am not inclined to R.S.ANo.924 of 2008 3 interfere with the discretion which has been judiciously and properly exercised by the lower appellate court while disposing the said application. The dismissal of the said application was fully justified. If so, the dismissal of the appeal as belated is also perfectly legal and proper. No question of law, much less any substantial question of law arises for consideration in this second appeal, which is accordingly dismissed in limine. 3. It appears that the appellant/defendant had valued the appeal at Rs.2 lakhs showing the court fee payable as Rs.13,300/- and had inititally paid only a sum of Rs.4,434/-. The balance court fee payable is Rs.8,866/- which has not been paid yet. But since the appeal was dismissed consequent on the dismissal of the petition to condone the delay, by virtue of section 66(2) of the Kerala Court Fees and Suits Valuation Act, 1959, the appellant was entitled to refund of half the court fee. But then, if the court fee payable was not on the entire amount of Rs.2 lakhs constituting the suit claim but only for the sum of Rs.12,000/- with interest, then the court fee payable by the appellant before the court below would not have been Rs.13300/- but a lesser amount. So, whatever court fee paid by R.S.ANo.924 of 2008 4 him by way of mistake will be liable to be refunded under Section 70 of the Kerala Court Fees and Suits Valuation Act, 1959. The appellant shall, therefore, be entitled to refund the above said court fee, in accordance with the aforesaid provisions, in case he files an application before the lower appellate court, that court shall consider the same and order refund accordingly. Dated this the 19 th day of November, 2008. V. RAMKUMAR, JUDGE sj