The appellate court has the power to reject an appeal for non-payment of balance court fee as provided under Order VII Rule 11(c) read with Section 107(2) of CPC.

JUDGMENT :

This Regular Second Appeal has been filed under Section 100 of the Code of Civil Procedure, challenging the decree and judgment dated 19.10.2020 in A.S.No.4/2018 on the files of the Additional District Court, Ottapalam arose out of decree and judgment in O.S.No.287/2014 on the files of the Munsiff Court, Ottapalam. The appellant herein is the defendant in the above suit and the respondent is the plaintiff.

2. Heard both sides.

3. I shall refer the parties in this regular second appeal as 'plaintiff' and 'defendant' for convenience.

4. As per the decree and judgment impugned in A.S.No.4/2018, the appellate court dismissed the appeal as under:

“Balance Court Fee not paid. Appeal dismissed with cost”.

5. It is submitted by the learned counsel for the defendant that though, as on 28.11.2022, balance court fee remitted and a petition filed under Section 151 of CPC to restore the appeal, the said application also was dismissed. Thereafter, the present appeal has been filed. The learned counsel for the defendant prayed for an opportunity to hear the first appeal on merits, after setting aside the verdict impugned.

6. The learned counsel for the plaintiff submitted that the contention of the defendant lacks bonafides and thereby the appeal was dismissed for non-payment of balance court fee. The attempt of the defendant is nothing but to protract the matter and therefore this second appeal must fail.

7. In this case, when the plaintiff/appellant failed to pay balance court fee, the learned appellate Judge dismissed the appeal for non-payment of balance court fee. Therefore, this appeal stands admitted, formulating the following substantial questions of law.

1. What will be the proper procedure to strike an appeal when the appellant fails to pay balance court fee?

2. Whether the appellate court erred in not following the procedure provided under Order VII Rule 11(c) read with Section 107(2) of CPC?

8. In this connection, it is relevant to refer Order VII Rule 11 of CPC, which deals with rejection of plaint. It has been provided in Order VII Rule 11(c) that where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so, the plaint shall be rejected. So, as provided under Order VII Rule 11(c) of CPC, when failure to pay the required court fee, the trial court shall reject the plaint and such rejection of plaint is decree as defined under Section 2(2) of CPC.

9. Coming to appeals; Order XLI Rule 3 deals with rejection of appeal, when the memorandum of appeal not drawn up as prescribed under Order XLI Rule 1 and 2 of the CPC. But the said provision does not permit rejection of appeal for non-payment of balance court fee. Order XLI Rule 19 of CPC deals with re-admission of appeal dismissed for default. Order XLI Rule 17 of CPC deals with dismissal of appeal for appellant's default. Order XLI Rule 17 of CPC does not cover dismissal of appeal for default for non-payment of balance court fee. None of the provisions in Order XLI of CPC directly deal with the procedure to be followed when the appellant fails to pay balance court fee. In this connection, it is apposite to refer Section 107 of CPC which deals with the powers of the appellate court. As per Section 107(1) of CPC, subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power – (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. Section 107(2) of CPC specifically provides that subject to the powers under Section 107(1) of CPC, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.

10. In