IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 22ND SEPTEMBER 2009 / 31ST BHADRA 1931 RFA.No. 661 of 2004() --------------------- OS.80/2003 of PRINCIPAL SUB COURT,N.PARAVUR .................... APPELLANT/PLAINTIFF ----------------------------- KURIACHAN, S/O. VARGHESE, KATTARUKUDI VEETTIL, RAYAMANGALAM KARA, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK. BY ADV. SRI.K.VINOD CHANDRAN SMT.LISSY DEVASSY RESPONDENT/DEFENDANT: --------------- MATHEW T.THOMAS, S/O. THOMAS, THANELIMALIL, PRALAYAKATTU KARA, VENGOOR WEST VILLAGE, KUNNATHUNADU TALUK. ADV. SRI.M.M.MONAYE SRI.M.PAUL VARGHESE SRI.M.S.BREEZ THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. * * * * * * * * * * * * * R.F.A.No.661 of 2004 ---------------------------------------- Dated this the 22nd day of September 2009 J U D G M E N T Joseph,J The appeal is directed against the dismissal of the suit filed by the appellant on account of the non-payment of the balance court fee. 2. We have heard the learned counsel for the appellant and the learned counsel who appears on behalf of the respondent. 3. According to the appellant, he or his counsel was unable to make a representation or file an application for enlargement of time since they were not aware of the posting date and they were under the impression that the suit is posted for framing issues on 22/11/2004. It is the case of the appellant that the omission occurred only due to the inadvertent omission on the part of the Advocate clerk in noting down the posting date. 4. According to the learned counsel for the respondent, there is no merit in the matter and the suit is frivolous R.F.A.No.661/04 2 5. The appellant has remitted 1/10th court fee. The balance remaining to be paid is nearly Rs.22,500/-. The appellant has a case that it was only on account of the inadvertent omission by the Advocate clerk in noting down the posting date. Taking a lenient view, we allow the appeal on condition that the appellant remits the balance court fee within a period of three weeks from today and also the appellant pays a sum of Rs.3,000/- (Rupees three thousand only) by way of cost to the respondent which also must be done within a period of three weeks from today. Cost shall be paid and a memo produced in this court within a period of three weeks from today. Should the appellant not pay the cost, this appeal will stand dismissed. The interim order of attachment passed by this court will continue for a period of six weeks from today. Thereafter, it is for the appellant to move the trial court and it is open for the respondent to urge all the contentions available to him in law in opposition to the relief of attachment. 6. The appeal is disposed of as above. (K.M.JOSEPH, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) jsr R.F.A.No.661/04 3 R.F.A.No.661/04 4 R.F.A.No.661/04 5 R.BASANT & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 29/07/2009