IMPORTANT POINT
Discretionary power u/s 149 should be exercised in favour of litigant unless he acts mala fide.

JUDGMENT

V.Gopala Gowda J.

Leave granted.

2. This appeal is filed by the appellant questioning the correctness of the judgment and final Order dated 21.03.2012 passed by the High Court of Kerala at Ernakulam in RFA No. 678 of 2011 urging various facts and legal contentions in justification of his claim.

3. Necessary relevant facts are stated hereunder to appreciate the case of the appellant and also to find out whether the appellant is entitled for the relief as prayed in this appeal.

The appellant approached the respondent no. 1 - a money lender, for a loan of [pic]2,20,000/-. The respondent no. 1 agreed to give him the loan in return of execution of a sale deed with respect to 3 cents of land in re-survey No. 111/13-1 in Block No. 12 of Maranalloor village by the appellant in his favour. It was agreed upon between the parties that the respondent no. 1 will reconvey the property in favour of the appellant on repayment of the loan. The appellant accordingly executed sale deed No. 575 of 2001 at sub Registrar’s office at Ooruttambalam with respect to 3 cents of land in Re-survey No.111/13-1 in Block no.12 of Maranalloor village in favour of respondent no.1. The respondent no. 1 executed an agreement of re-conveyance deed in favour of the appellant regarding the above mentioned property on the same day.

4. The learned senior counsel, Mr. Basanth R. appearing on behalf of the appellant argued that the appellant approached the respondent no.1 several times with money for re-conveying the property in favour of the appellant as was agreed upon between them but the respondent no. 1 evaded from doing so.

5. It is also the case of the appellant that respondent no.1, instead of issuing a deed of re-conveyance, sold the property to Respondent nos. 2 and 3 without the knowledge of the appellant. The appellant sent a legal notice to the respondent no.1 requesting him to appear before the sub Registrar’s office for the execution of re-conveyance deed regarding the plaint schedule property to which the respondent no. 1 did not oblige. The appellant then filed a suit being OS No. 141/2007 before the Court of sub Judge, Neyyattinkara for mandatory injunction, for declaration of the sale deed executed by Respondent no.1 in favour of Respondent nos. 2 and 3 as null and void, for execution of re-conveyance deed in his favour and also for consequential reliefs. The suit was valued at [pic]3,03,967/- and the court fee was valued at [pic]28,797/-. The appellant paid 1/10th of the court fee i.e., [pic]2880/- at the time of filing the suit. The Court of sub Judge, Neyyattinkara granted injunction in favour of the appellant restraining the respondents from carrying out new construction activities including the parts of the plaint schedule property until further orders.

6. The court of sub Judge, Neyyattinkara heard the application for extension of time sought by the appellant for paying the balance court fee. However, the application was rejected and the file was closed by the learned sub Judge. The appellant then filed Regular First Appeal No. 678 of 2011 along with an application for condonation of delay in filing the appeal. The High Court dismissed the application for condonation of delay on the ground that the delay in filing the appeal was not explained by the appellant and consequently, dismissed the Regular First Appeal filed by the appellant. The High Court’s opinion that the appellant has not given any ground for delay in filing the Regular First Appeal is not sustainable since the appellant has categorically claimed that he was not aware of the rejection of the suit of the appellant for delayed payment of court fee by the learned sub Judge.

7. In the light of the facts and circumstances of the case, the following points would arise for our consideration:

1. Whether the learned sub Judge was justified in rejecting the suit for non- payment of court fee?

2. Was the appellant entitled to condonation of delay for non- payment of court fee by the learned