IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 8TH NOVEMBER 2010 / 17TH KARTHIKA 1932 RFA.No. 468 of 2008() -------------------------- OS.233/2004 of PRL.SUB COURT,THRISSUR .................... APPELLANT -------------- SIVADASAN, S/O.CHULLIPARAMPIL KUTTAPPAN, CHULLIPARAMBIL HOUSE, CHELAKKOTTUKARA DESOM, CHELAKKOTTUKARA VILLAGE, THRISSUR TALUK. BY ADV. SRI.RANJITH XAVIER RESPONDENT(S): -------------------- 1. BABY JOHN, S/O.VADAKKETHALA JOBY, CHEROOR DESOM, VILVATTOM VILLAGE, THRISSUR TALUK. 2. ANNIE MOL, D/O.VADAKKETHALA JOBY, CHEROOR DESOM, VILVATTOM VILLAGE, THRISSUR TALUK. THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs/ THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ. ------------------------------------------------------------------------------------ CM Appl. No.1327/08 in RFA 468/08 & RFA No.468 of 2008-E ------------------------------------------------------------------------------------ Dated 8th November 2010 Judgment Thottathil.B.Radhakrishnan, J. This court, on 29.07.2008, had issued notice on CM Appl. No.1327/08 filed seeking condonation of delay of 251 days in filing this appeal against the rejection of the plaint. The appellant pleads that he could not pay the balance court fee and also could not appeal in time because his father was sick and while undergoing treatment, he died on 02.11.2007. He says that he was facing financial crisis and after meeting the funeral expenses of his father, the petitioner also fell ill and was consequentially hospitalised. He says that he had to undergo bed rest subsequent to the hospitalisation and thereafter, he could manage to obtain money from different sources for payment of court fee, only by 18.05.2008. The fact of the matter remains that only on account of non- payment of the court fee, this matter remains here. RFA 468/08 2 2. While we are satisfied that sufficient cause has been shown to condone the delay, we see that the notice issued to the respondents has been returned with the endorsement that they have left the present address. Obviously, that is without disclosing their further address. Under such circumstances, notice to the respondents is dispensed with reserving the right of the respondents to seek re-hearing of this appeal, if so advised. 3. Insofar as the appeal is concerned, the same, as already noted, is only against an order rejecting the plaint for non-payment of the court fee. Among the defendants, the first defendant remained ex parte. He is the brother of the second defendant, who appeared before the court below through Adv.Seby.J.Pullely. Having regard to the totality of the facts and circumstances of the case, we are of the view that the ends of justice would be satisfied if the impugned order is set aside on appropriate terms. RFA 468/08 3 Accordingly, the following orders are passed : (i) CM Application No.1327/08 is allowed. (ii) The appeal is allowed. (iii) The appellant is directed to pay the balance court fee before the court below within three weeks from now. (iv) The appellant shall also pay Rs.5,000/- each to the defendants towards costs either by paying the same to the learned counsel for the defendants or by depositing it before the court below. On such receipt/ deposit, if the defendants do not appear before the court below, the court below shall issue notice to them denovo and proceed with the matter further. The appellant is directed to appear before the court below on 22.11.2010. THOTTATHIL.B.RADHAKRISHNAN, JUDGE P.BHAVADASAN, JUDGE sta RFA 468/08 4 RFA 468/08 5