Allowed

Nijanand Chandran v. Joseph

Kerala HC4 Dec 2017RFA/616/2013

Case brief

AI extract

What is this about?

This appeal against an order rejecting a plaint for non-payment of balance court fee was allowed. The court set aside the impugned order, restored the plaint, and granted the appellant time to pay the balance fee, instructing the lower court to try the suit on merits expeditiously within the summer vacation of 2018.

What did the court decide?

Appeal allowed; impugned order set aside; plaint restored; time granted till 20.12.2017 to pay balance court fee; lower court directed to issue notice for suit on 21.12.2017.

Nijanand Chandran Vs Joseph — Civil Procedure and Limitation | Kerala HC (2017)

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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 P.N.RAVINDRAN &

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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MONDAY, THE 4TH DAY OF DECEMBER 2017/13TH AGRAHAYANA, 1939

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RFA.No. 616 of 2013 ()

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AGAINST THE JUDGMENT IN OS 94/2010 of ADDL.SUB COURT,NORTH PARAVUR DATED 05-08-2011

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APPELLANT(S):PLAINTIFF

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NIJANAND CHANDRAN, AGED 50 YEARS, S/O.JAGADEESH CHANDRAN, HOUSE NO.V/241A, CHEMBAKASSERY, BLAYIL ROAD, EROOR, TRIPUNITHURA

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BY ADVS.SRI.R.SANJITH SMT.C.S.SINDHU KRISHNAH

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RESPONDENT(S):DEFENDANT

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JOSEPH, AGED 71 YEARS, S/O.POULO, NJALIYIL HOUSE, NELLEESWARAM KARA, NADUVATTOM KARA, MANJAPRA VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT 683581.

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R1 BY ADV. SRI.K.J.SAJI ISAAC R1 BY ADV. DR.ELIZABETH VARKEY R1 BY ADV. SRI.JITHIN SAJI ISAAC

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.N. Ravindran & R.Narayana Pisharadi, JJ.

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- - - - - - - - - - - - - - - - - - - - - - - R.F.A.No.616 of 2013

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- - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 4^th December, 2017

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JUDGMENT

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P.N.Ravindran, J.

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This appeal arises from the judgment delivered by the Court of the Additional Subordinate Judge of North Parur on 5.8.2011 in O.S.No.94 of 2010 rejecting the plaint for non payment of the balance court fee. Though the respondent has been served and he had entered appearance through counsel, the counsel later relinquished the vakalath. Thereupon, an effort was made to issue fresh notice to the respondent, though it was wholly unnecessary. As he was already served with notice in the appeal by special messenger, it was his duty to engage another counsel if the former counsel had relinquished the vakalath.

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The defendant has in paragraph 6 of the written statement admitted having received the sum of Rs.4,82,000/- as advance sale consideration. The plaintiff's case is that Rs.5,00,000/- was paid. The defendant has also stated in paragraph 11 of the written statement that he is willing to repay the advance amount received after setting off the loss sustained by him.

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Having regard to the said averment, we are of the opinion that the appellant/plaintiff should be given an opportunity to have the suit tried and disposed of on the merit. The appellant has in the memorandum of appeal averred that before the plaint was rejected, he

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RFA 616/2013

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has sought for a reference of the matter to the Lok Adalath. The correctness of the said averment is not disputed. Such being the situation, we are satisfied that the impugned order should be set aside and the plaint restored to file.

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We accordingly allow the appeal, set aside the order passed by the court of the subordinate Judge of North parur on 5.8.2011 rejecting the plaint in O.S.No.94 of 2010 and grant the appellant/plaintiff time till 20.12.2017 to pay the balance court fee. In the event of the balance court fee being paid on 20.12.2017, the court below shall call the suit on 21.12.2017 and try and dispose of the suit afresh on the merits expeditiously and in any event, before the date on which the civil courts close for the summer vacation of 2018. Needless to say, in the event of default on the part of the appellant in paying the balance court fee before the close of office hours of 20.12.2017, this appeal shall stand dismissed.

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Registry to communicate a copy of this judgment to the court below. Appellant shall also produce a copy of this judgment before the court below along with the balance court fee.

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(P.N. Ravindran, Judge.)

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(R.Narayana Pisharadi, Judge.)

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kav/

Nijanand Chandran v. Joseph

Case brief

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Nijanand Chandran v. Joseph

Case brief

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