IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 RFA.No. 63 of 2011() -------------------- OS.435/2010 of PRINCIPAL SUB COURT,ERNAKULAM .................... APPELLANT/PLAINTIFF. ---------------------------------------- MURALEEDHARAN, S/O. MADHAVAN, AGED 50 YEARS, THODUVAKKARA HOUSE, VENNALA P.O., ERNAKULAM DISTRICT. BY ADV. SRI.T.MADHU RESPONDENT(S): DEFENDANT. ------------------------- M/S. CARBO COLOUR LIMITED, HAVING ITS REGISTERED OFFICE, AT XLII/685A, OLD RAILWAY STATION ROAD, KOCHI - 18, KOVILVATTOM DESOM, ERNAKULAM VILLAGE, ERNAKULAM DISTRICT, REPRESENTED BY ITS MANAGING DIRECTOR, JOSE KURIAN. SRI.V.M.KURIAN (CAVEATOR) THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19/10/2011, THE COURT ON 11.11.2011 DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- R.F.A. No.63 of 2011 ----------------------------------------------- Dated 11th November, 2011. J U D G M E N T Joseph Francis, J. This appeal is filed by the plaintiff in O.S.435/2010 on the file of the Sub Court, Ernakulam. The respondent herein was the defendant in that suit which was filed by the plaintiff for a decree allowing the plaintiff to realise a sum of Rs.30,00,000/- which was paid by the plaintiff based on an agreement for sale. 2. The case of the plaintiff is briefly as follows : The defendant in the suit on 20.4.2008 entered into an agreement for sale of the plaint schedule property having an extent of 47.470 cents in survey No.1126/1 of Thrikkakkara North Village for a total sale consideration of Rs.75,00,000/- and out of which an amount of Rs.30,00,000/- was paid by the plaintiff as advance. By the agreement, the time fixed for execution of sale deed was 20 months. Since the property is situated within the limits of major industrial estates at Kalamassery, permission from the Government was required for selling the property. As the defendant failed to obtain necessary permission from the RFA 63/11 2 Government within the period, the plaintiff demanded back the advance of sale consideration. Since the defendant failed to return back the amount, the plaintiff was constrained to file the above suit. As the defendant did not file written statement in time, the court below posted the case for payment of balance court fee on 27.10.2010. On that day, it was adjourned to 4.11.2010 on a petition filed by the plaintiff for extension of time for payment of balance court fee. By 4.11.2010, the plaintiff could not raise the amount payable as balance court fee. The plaintiff filed another petition for extension of time for paying the balance court fee of Rs.2,32,560/-. Thereupon, the court below adjourned the case to 9.12.2010 for payment of balance court fee. Because of the financial inability, the plaintiff filed another petition as I.A.8686/10 for enlargement of time for payment of balance court fee. The plaintiff alleges that the court below, without considering the above petition, rejected the plaint under Order VII Rule 11(c) of Civil Procedure Code. Against that order rejecting the plaint, the plaintiff filed RFA 63/11 3 this appeal. 3. Heard learned counsel for the appellant and the learned counsel for the respondent. 4. Learned counsel for the appellant submitted that the appellant could not remit the balance court fee in time due to financial inability to raise Rs.2,32,560/- and as such, the court below ought to have allowed I.A.8686/10 for extension of time. Learned counsel submitted that the appellant/plaintiff is prepared to deposit the balance court fee before the court below within ten days, if permission is granted for the same. Learned counsel for the respondent supported the order of the court below. 5. Since the court below rejected the plaint under Order VII Rule 11(c) of the Civil Procedure Code on the ground that the plaintiff failed to remit the balance court fee within the time fixed by the court, there is no necessity to go into the question of maintainability or merits of the case at this stage. It is true that this Court passed orders in respect of the allged RFA 63/11 4 income tax return. Affidavits have been filed. 6. As per Section 4A of the Kerala Court Fees and Suits Valuation Act, the balance court fee shall be paid by the plaintiff within such period not later than 15 days from the date of framing of issues or where framing of issues is not necessary, within such period not exceeding the 15 days, as may be specified by the court. In the present case, the issues have not been framed so far and there is no finding that framing of issues is not necessary. Therefore, the learned Sub Judge ought to have allowed I.A.8686/10 for extension of time for payment of balance court fee and rejection of the plaint would cause grave injustice to the plaintiff as the plaint claim involved is Rs.30,00,000/-. Therefore, we are of the view that the appeal has to be allowed and the order rejecting the plaint has to be set aside in the interests of justice. Accordingly, this appeal is allowed. Order rejecting the plaint in O.S.435/10 on the file of the Sub Court, Ernakulam is set aside and that plaint is restored to file and the plaintiff is directed to remit the balance court fee, RFA 63/11 5 within two weeks from today. Parties are directed to suffer their respective costs in this appeal. We make it clear that we have not pronounced on the merit of the contention regarding the financial capacity of the appellant and further it will indeed be open to the respondent to rely on the orders passed by this Court in connection with the income tax return, the communication from the Income Tax Officer as also the affidavits of the appellant and the conduct of the appellant to probabilise respondent's case. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.