Dismissed

Joby C George v. Preethy Mathew

Kerala HC26 Oct 2017RFA/997/2012

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a first appeal filed by an appellant as withdrawn after he claimed the dispute was settled. The court ordered exemption from payment of court fee on the appeal memo, finding the appellant remained an indigent person dependent on his wife.

What did the court decide?

The memorandum of appeal shall be dismissed as withdrawn; the appellant is exempted from paying the court fee on the memorandum of appeal.

Joby C George Vs Preethy Mathew — 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 DEVAN RAMACHANDRAN

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THURSDAY, THE 26TH DAY OF OCTOBER 2017/4TH KARTHIKA, 1939

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RFA.No. 997 of 2012 ()

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AGAINST THE JUDGMENT AND DECREE IN OS 34/2011 of ADDL.SUB COURT,KOTTAYAM DATED 31-07-2012

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APPELLANT(S)/APPELLANT:

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JOBY C GEORGE

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S/O.LATE C.C. GEORGE, MUTTAMBALAM P.O, MUTTAMBALAM VILLAGE, KOTTAYAM

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BY ADV. SMT.ASHA B.MATHEW

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RESPONDENT(S):DEFENDANT

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PREETHY MATHEW

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D/O.A.S.MATHEW, APPAKOTTUMURIYIL HOUSE, THURUTHICKADU P.O.,KALLOOPPARA KARA, KALLOOPPARA VILLAGE, MALLAPPALLY, PATHANAMTHITTA-PIN-689597

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BY ADV. SRI.BIJU ABRAHAM

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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vpv/

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P.N.RAVINDRAN & DEVAN RAMACHANDRAN, JJ.

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R.F.A.No.997 of 2012

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Dated this the 26^th day of October, 2017

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JUDGMENT

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P.N.Ravindran, J.

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This appeal arises from the decree and judgment passed by the Court of the Subordinate Judge of Kottayam on 31.7.2012 in O.S.No.34 of 2011. By the said judgment, the suit instituted by the appellant for realisation of the sum of Rs.16,35,000/- from the respondent was dismissed. The court below also directed that as the plaintiff was later on allowed to sue as an indigent person, the balance court fee of Rs.1,34,280/- shall be realised from him. The District Collector, Kottayam was directed to recover the said amount from him. The court below also directed that for the said purpose a copy of the decree and judgment shall be forwarded to the District Collector, Kottayam. The said judgment is under challenge in this appeal, which was presented in this court on 7.11.2012 as an indigent person.

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The appellant had along with the memorandum of appeal filed C.M.C.P.No.66 of 2012 for leave to file the appeal as an indigent

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person. The said application was heard and allowed by order passed on 13.12.2012. The appeal was thereafter admitted and notice

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R.F.A.No.997 of 2012

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ordered to the respondent and the respondent was served. The appellant has now filed a memo dated 26.5.2017 wherein it is stated that as the dispute is settled out of court, he does not want to continue or prosecute the appeal and therefore, it may be dismissed as withdrawn. Necessarily therefore this appeal will have to be dismissed as withdrawn.

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That takes us to the question whether as held by a Division Bench of this court in Joseph v. Kerala State Electricity Board [2012 (4) KLT 870] which was reiterated and clarified by this court in

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Sunil Kumar v. Chandrasekharan Nair [2016 (3) KLT 991], the appellant should be relieved of the obligation to pay the court fee payable on the memorandum of appeal. The impugned judgment itself discloses that when the plaint was presented, 1/10^th of th e court fee had been paid. The court fee payable on the plaint is Rs. 1,85,800 /-. The plaintiff thereafter filed I.A.No.1640 of 2011 under Order XXXIII Rule 1 of the Code of Civil Procedure with a prayer that he may be allowed to prosecute the suit as an indigent person. He had in the affidavit filed in support of the said application averred that he is residing in a rented building along with his wife and that he is dependent on his wife. He had also averred that as the defendant had failed to repay the sum of Rs.15,00,000/- advanced to him, his business fell into a loss and that as a result thereof, he is not in a

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R.F.A.No.997 of 2012

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position to pay the balance court fee. The said application was allowed and the appellant/plaintiff was allowed to sue as an indigent person.

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In the affidavit filed in support of C.M.C.P.No.66 of 2012,

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the appellant has averred that he has not ceased to be an indigent person after the impugned decree was passed. He has also averred that he is not in a position to raise the funds required for payment of the court fee. As stated earlier, accepting the plaintiff's contention that he has no source of income to pay the court fee, the court below granted him leave to prosecute the suit as an indigent person. Accepting the very same averments, this court had granted him leave to file the appeal as an indigent person. He has in the affidavit filed in support of the application for leave to prosecute the suit as an indigent person and this appeal as an indigent person averred that he is depending on his wife for his livelihood. In such circumstances, we are of the opinion that the appellant has made out a case warranting an order exempting him from being mulcted with the liability to pay the court fee payable on the memorandum of appeal. We accordingly direct that the appellant shall not be mulcted with the liability to pay the court fee payable on the memorandum of appeal. We are persuaded to pass such an order also for the reason that the appeal was not decided on the merits and is being dismissed as withdrawn.

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In the light of the memo dated 26.5.2017, the instant appeal is

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R.F.A.No.997 of 2012

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dismissed as withdrawn subject to the aforesaid observations.

Sd/-

P.N.RAVINDRAN

JUDGE

Sd/-

DEVAN RAMACHANDRAN JUDGE

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/true copy/

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P.A. to Judge

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vpv

Joby C George v. Preethy Mathew

Case brief

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Joby C George v. Preethy Mathew

Case brief

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