IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 RSA.No. 419 of 2006() --------------------- AS.175/2004 of DISTRICT COURT, KOTTAYAM OS.190/1999 of ADDL.MUNSIFF COURT,KOTTAYAM .................... APPELLANT/APPELLANT/PLAINTIFF: -------------------------------------------------- MAMMEN VARGHESE, AGED 75, S/O. LATE VARGHESE, RESIDING AT KONDDATTIL (H), MANGAMANA KARA,2 B OXFORD, VIJAYAPURAM VILLAGE ,KOTTAYAM TALUK BY ADV. SRI.P.ABRAHAM CHERIAN SRI.K.U.PAULOSE RESPONDENT(S): RESPONDENTS/DEFENDANTS: -------------------------------------- 1. V.M. KUMAR, AGED 67 YEARS, S/O. KUTTY, RESIDING AT SASTHA NILAYAM, PALACE ROAD, KOTTAYAM VILLAGE, KOTTAYAM TALUK. (*) 2.( M.S. KUMAR), AGED 66 YEARS, WIFE OF V.M.KUMAR, RESIDING AT SASTHA NILAYAM, PALACE ROAD, KOTTAYAM VILLAGE, KOTTAYAM TALUK. (CORRECTED AS M.S.KUMARI) 3. GIRISH KUMAR, AGED 32 YEARS, S/O. V.M.KUMAR, RESIDING AT SASTHA NILAYAM, PALACE ROAD, KOTTAYAM VILLAGE, KOTTAYAM TALUK. (*)THE NAME OF 2ND RESPONDENT M.S.KUMAR IS CORRECTED AS M.S.KUMARI AS PER ORDER DATED 27.9.2006 IN IA NO.2076/2006) ADV. SRI.SURIN GEORGE IPE FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.419 of 2006 -------------------------------------- Dated this the 10th day of March, 2010. JUDGMENT Learned counsel for appellant submits that appeal is not pressed. 2. It is however submitted that in the light of the decision of this Court in Philomina Joseph v. State of Kerala (2009 (1) KLT 591) appellant is entitled to get refund of half the court fee paid. In the decision relied on by learned counsel, it was held that when the suit is dismissed as not pressed, it is an admission of its non-maintainability and on its consequent dismissal without any investigation half of the court fee can be refunded. There is no reason why that decision should not be applied to an appeal it being a continuation of the suit. Appeal is being dismissed as not pressed without investigation. Hence appellant is entitled to get refund of half the court fee paid. Accordingly appeal is dismissed as not pressed without investigation. Refund half of court fee paid to the appellant. THOMAS P.JOSEPH, Judge. cks