IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 17TH NOVEMBER 2008 / 26TH KARTHIKA 1930 WP(C).No. 32443 of 2008(K) --------------------------------------------- AS.294/2002 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.877/1999 of PRL.M.C.,TRIVANDRUM (EP 48/08) .................... PETITIONER: SALIM, FATHIMA MANZIL, PANANINNAVILA, HARBOUR ROAD, THOZHICHAN DESOM, VENGANOOR, THIRUVANANTHAPURAM. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.SURYA SASI RESPONDENTS: 1. ASIYA BEEVI, KRISHNAKRIPA, B.19(A), NEW CIVIL NAGAR, BEHIND CIVIL STATION, PALAKKAD DISTRICT. 2. JASMIN. D/O.VAHID, DO. DO. 3. SANOFAR, S/O.VAHID, DO. DO. ADV. SRI.K.B.PRADEEP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.32443 of 2008 K -------------------------- JUDGMENT The second defendant in O.S.No.877/99 on the file of the Munsiff's Court, Thiruvananthapuram, who lost his contentions before the trial court, filed A.S.No.294/02 before the District Court, Thiruvananthapuram. At the time of filing the appeal, one third court fee alone had been paid and the balance court fee had not been paid, though the appeal was admitted on 19.9.2002 and the respondent entered appearance on 29.1.2003. Finally, when the fact of non payment of the balance court fee was brought to the notice of the court, the court, as per proceedings on 5.11.2007, enlarged the time for payment of the balance court fee on the prayer of the counsel for the petitioner and the case was posted to 22.11.2007, on which day also it was got adjourned to 26.11.2007 for payment of the balance court fee, ordering no further time. On 26.11.2007 also the balance court fee was not remitted. Consequently, the appeal was rejected. WPC 32443/08 2 Petitioner filed I.A.No.387/08 for review of the order rejecting the appeal and I.A.No.388/08 to condone the delay in filing the review application. Both the applications were dismissed. It is against that order that the petitioner has come up with this writ petition. 2. The prayer in this writ petition is to set aside the common order dated 10.10.2008 on I.A.Nos. 337/08 and 338/08 in A.S.No.294/02 and to allow those applications. 3. The court below has, on the basis of the decision of this Court in Felix Varkey v. Municipal Secretary (2006 (4) KLT SN 46 Page 31), found that the order rejecting the appeal being appealable, it will not be proper to exercise the inherent power under Section 151 CPC. However, the court also observed that review would be maintainable in case the petitioner is able to make out a case for review on merits. The court also took note of the decision of this Court in Sisupalan Nair v. State of Kerala (2004 (3) KLT SN 1), wherein, it was held WPC 32443/08 3 that duty of the court to enlarge the time is attracted only in a case where a petition for enlargement of time is filed and further that there is no provision to issue any direction to the litigant to pay the balance court fee. 4. In the instant case, the case of the petitioner is that he was out of station and the first appellant, with whom he had entrusted the case, was laid up. Those were the grounds urged to condone the delay in filing the application for review. The court below observed that obligation to pay the balance court fee arises without any order, inasmuch as it is to be done, within the specified time after the admission of the appeal as per the provisions of the Statute. Appeal was admitted on 19.9.2002. Balance court fee ought to have been remitted within fifteen days. Respondent entered appearance in the appeal on 29.1.2003. Still the balance court fee was not remitted. Balance court fee was not remitted till 5.7.2007, when it was brought to the notice of the court. WPC 32443/08 4 When that was pointed out to the counsel for the petitioner, he prayed for extension of time and that was granted. On the adjourned day also, balance court fee was not paid. Hence, one more adjournment was granted ordering no further chance and thereafter also balance court fee was not remitted. In the circumstances, the first appellate court had no other alternative, but to reject the memorandum of appeal. It is too much for the appellant to contend that the court should have issued notice to him for payment of the balance court fee. The case of the petitioner is that he had no knowledge that he was bound to pay the balance court fee on 26.11.2007. The duty to pay the balance court fee arose long back. If he was not informed by his lawyer, he has to curse himself. His case is that he believed the first appellant, who was conducting his case on his behalf as well and that if the first appellant had shown any neglect in conduct of the case that should not affect him. It was he who entrusted the WPC 32443/08 5 first appellant to conduct his case and left the place for his business. If he wanted to conduct his case properly, he should have got in touch with his lawyer at least occasionally and done the needful. The petition to review was also filed with a delay of 43 days and there was no valid ground, in the circumstances, to condone the delay either. Nor was there any reason in law to review the order rejecting the appeal. It was, therefore, that the first appellate court dismissed both the applications. I see no reason to interfere with the said order passed by the court below in accordance with law. There is no merit in this writ petition and this writ petition deserves only to be dismissed. In the result, without prejudice to the petitioner resorting to any other remedy, if so advised, I dismiss this writ petition. 17th November, 2008 (K.P.Balachandran, Judge) tkv