Allowed

Mathew @ Mathew v. T.S.Madhavan

Kerala HC15 Jan 2016RFA/797/2009

Case brief

AI extract

What is this about?

This court allowed a regular first appeal filed by a retired military personnel appellant. The suit was rejected by the trial court for non-payment of balance court fee. The High Court directed the appellant to pay the balance fee within two weeks and set the impugned judgment aside so the suit could be reinstituted.

What did the court decide?

Order directing appellant to pay balance court fee within two weeks; setting aside impugned judgment and decree; directing lower court to retake suit on file and dispose of it.

Mathew @ Mathew Vs T.S.Madhavan — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE A.HARIPRASAD

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FRIDAY, THE 15TH DAY OF JANUARY 2016/25TH POUSHA, 1937

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RFA.No. 797 of 2009 ( )

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AGAINST THE JUDGMENT IN OS 469/2007 of PRINCIPAL SUB COURT,NORTH PARAVUR DATED 26-03-2007

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APPELLANT(S)/PLAINTIFF:

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MATHEW @ MATHEW, VADASSERI HOUSE,

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MADAPLANTHURUTHUKARA, MOOTHAKUNNAM, N.PARAVUR NOW RESIDING AT VADASSERI HOUSE, HOUSE NO.47/1034 VADUTHALA, CHERANELLOOR VILLAGE, KANAYANNOOR.

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BY ADV. SRI.B.KRISHNA MANI

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RESPONDENT(S)/DEFENDANTS:

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T.S.MADHAVAN, S/O.SANKU, THAIKOOTTATHIL HOUSE, PATTANAM MURI, VADAKKEKARA N.PARAVUR, NOW RESIDING AT, THAIKOOTTATHIL HOUSE KUZHUPPILL MURI, AYYAMPILLY.

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XAVIER, S/O.JOHN @ YOHANNAN, PALLIYIL, AZHEEKODU DESOM, AZHEEKODU VILLAGE KODUMGALOOR TALUK, NOW RESIDING AT EAST AYYAPPANKAVU KOCHI - 18.

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CHINNAPPAN @ MATHEW, S/O.JOHN @ YOHANNAN, -DO- -DO-

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GIRIJA, W/O.MADHAVAN, NADUVILAPURACKAL HOUSE, POYYADESOM, POYYA VILLAGE MUKUNDAPURAM TALUK

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(PARAVUR TALUK, VADAKKEKKARA VILLAGE, PATTANAM MURI) NOW RESIDING AT THAIKOOTTATHIL HOUSE, KUZHIPPULLY, MURI KUZHIPPULLY VILLAGE.

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R2 & 3 BY ADV. SRI.K.S.RAJESH

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R2 & 3 BY ADV. SRI.M.SHAJU PURUSHOTHAMAN

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 15-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ANTONY DOMINIC & A.HARIPRASAD, JJ.

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R.F.A.No.797 of 2009

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Dated this the 15^th day of January, 2016

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JUDGMENT

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A.Hariprasad, J.

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Appellant is the plaintiff in O.S.No.469 of 2007 on the file of the Principal Sub Court, North Paravur. The suit is one for realisation of money. Case of the appellant/plaintiff is that an extent of 4.35 acres of land was jointly owned by his father and John @ Yohannan, father of defendants 2 and 3. Plaintiff's father died on 13.10.1962 and Yohannan died on 14.07.1987. After the death of plaintiff's father, Yohannan and their spouses, the property devolved on the plaintiff and defendants 2 and 3 jointly. While so, the plaintiff entered into an agreement for sale in respect of the property described in the plaint schedule with the first defendant on 30.09.2004 and received `50,000/- as advance. Thereafter on 20.10.2004, the plaintiff executed a power of attorney in the name of the first defendant authorising him to sell the property. Accordingly the plaint schedule property was sold to the fourth defendant, who is the wife of the first defendant. Though a sale deed was executed, balance sale consideration was not paid to the plaintiff. Hence, he demanded money for

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RFA No.797/2009

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which there was no response.

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Defendants 1 and 4 opposed the suit contending that there is no liability for them towards the plaintiff as claimed in the plaint. According to them, the entire sale consideration was paid at the time of the execution of sale deed.

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Heard the learned counsel for the appellant.

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Appellant/plaintiff is aggrieved by the rejection of the plaint for non-payment of balance court fee. The suit was valued at 2,84,188/-. Court fee to be paid was 26,820/-. At the time of institution of the suit, 1/10^th court fee was paid. Appellant contended that he is a retired military personnel and he was having financial difficulties at the material time. His only source of income was the pension received. Therefore, he could not pay the balance court fee in time.

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Considering the averments in the appeal memorandum and the submissions of the learned counsel, we are of the view that the appellant should be given an opportunity to pay the balance court and contest the case. It is worthy to be noted that the counter claim raised by the respondents/defendants against the appellant was endorsed as not pressed before the trial court.

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In the result, we allow the appeal. Impugned judgment and decree of the court below are set aside. The appellant shall pay balance

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RFA No.797/2009

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court fee within a period of two weeks from today and in that event, the court below shall receive back the suit on file and dispose of the same in accordance with law.

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ANTONY DOMINIC, JUDGE.

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A. HARIPRASAD, JUDGE.

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cks

Mathew @ Mathew v. T.S.Madhavan

Case brief

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Mathew @ Mathew v. T.S.Madhavan

Case brief

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