IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 16TH JULY 2008 / 25TH ASHADHA 1930 RSA.No. 163 of 2008 ----------------------- AS.40/2004 of SUB COURT, CHERTHALA OS.89/2000 of PRL.MUNSIFF COURT, CHERTHALA .................... APPELLANT: APPELLANT/1ST DEFENDANT: ----------------------------------------------- KUTTAN PILLAI, ONEZHATHU VEETTIL, THEVARVATTOM MURI, THYCATTUSSERY VILLAGE. BY ADV. SRI.B.KRISHNA MANI RESPONDENTS: RESPONDENTS 1,3,4,5 & 6 IN THE APPEAL/PLAINTIFF & -------------------------------------------------------------------------- 1. M.VIJAYAN NAIR, VALAVATHUKATTIL VEETTIL, THEVARVATTOM MURI, THYCATTUSSERY VILLAGE. 2. SAROJINI AMMA, DO, DO. 3. SARALA, D/O.NANIKKUTTY, KONNANATTU, MANISSERIKARA, VANIYAMKULAM PANCHAYATH OTTAPPALAM TALUK. 4. AJITH (MINOR), DO, DO. 5. ANJALI (MINOR), DO, D0. BY ADV. SRI.JAGADEESH LAKSHMAN FOR R1 SRI.A.R.GANGADAS THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ------------------------------------------------------ R.S.A. No 163 of 2008 ------------------------------------------------------ Dated this the 16th July 2008 JUDGMENT This is an appeal filed by the first defendant in O.S. No 89 of 2000 on the file of the Munsiff's Court, Cherthala. That was a suit instituted by the first respondent herein for recovery of moneys due from the appellant as also from the second defendant in the said suit, who passed away pending suit and his L.Rs were impleaded as additional defendants 3 to 6. The suit was decreed allowing the first respondent-plaintiff to realise the amount of Rs 27,610/- with interest at 12% per annum on the principal amount of Rs 27,500/- from the date of suit till date of decree and thereafter at the rate of 6% per annum till realisation from the first defendant and his assets and charged on the plaint schedule property. The plaintiff was also allowed to realise his costs from the defendant. The first defendant filed A.S. No 40 of 2004 before the first appellate court assailing the decree so passed. The appeal was admitted on 19.03.2004, the date on which the appeal was filed, and notice was ordered to the respondents who were plaintiff, deceased second defendant and RSA 163/08 2 additional defendants 3 to 6. Though the appeal was admitted as early as on 19.03.2004 despite lapse of about two years the appellant did not pay the balance court fee and therefore on 08.03.2006 the first appellate court rejected the appeal for failure to pay balance court fee and also ordered refund of the court fee paid. This Regular Second Appeal is filed against the said judgment of the first appellate court impleading plaintiff and additional defendants 3 to 6 as respondents. 2. It is contended by the learned counsel for the appellant that the balance court fee payable was not directed to be paid by the first appellate court and there was no posting for the same, that the balance court fee was only Rs 623/- and the appellant is prepared to pay the same and it was only by an omission that it was not paid and that therefore the decree of the first appellate court be set aside and the case remanded back enabling the appellant to pay the balance court fee and contest the appeal. 3. It is worthy to note that proviso 2 to Section 52 of the Court Fees Act provides that one-third of the court fee payable in an appeal shall be paid at the stage of admission of first appeal or second appeal, as the case may be, and the balance shall be paid within RSA 163/08 3 such period not later than 15 days from the date of such admission as may be specified by the court in case the appeal is admitted. It means that the court admitting the appeal has power to limit the time to pay the balance court fee and 15 days time is available to the appellant to pay the balance court fee when the period is not so limited by the court specifying the time limit to pay the balance court fee. In other words, for payment of balance court fee within a period not later than 15 days from the date of admission of the appeal no order of the court is necessary. Proviso 3 of Section 52 further makes provision enabling the court to extend the period upto 30 days for sufficient reasons to be recorded in writing. This means that the court is not conferred with power under the said proviso to extend the period beyond 30 days in any event. The scheme of the Act shows that it is the duty of the appellant to make payment of the balance court fee within the outer limit of 15 days from the date of admission of the appeal. When the appellant has not made payment within the said time and requires extension it was up to him to move for extension of the time within the powers of the appellate court. That also was not done in the instant case and almost two years had elapsed after admission of the appeal and it was then that the first RSA 163/08 4 appellate court rejected the appeal for non payment of balance court fee. The rejection of the appeal, in the circumstances, cannot be faulted and there is no reason for this court to interfere in this R.S.A and to order remand of the case to the first appellate court. This appeal, in the circumstances, is devoid of merit and is dismissed. Sd/- K.P. BALACHANDRAN Judge 16/07/2008 en [true copy]