IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN TUESDAY, THE 7^TH DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943 OP(C) NO. 275 OF 2015 OS 406/2012 OF SUB COURT, KARUNAGAPPALLY, KOLLAM PETITIONER/S:

RAJU V AGED 47 YEARS S/O.VELU, PUTHENPARAMBIL VEEDU, MUTHUKULAM VILLAGE, WARD NO.11, HOUSE NO.430, MUTHUKULAM PANCHAYATH, KARTHIKAPPALLY TALUK.

BY ADV SRI.SAJU J PANICKER RESPONDENT/S:

1 RAMACHANDRAN T.K.

AGED 72 YEARS S/O.KOCHUKUNJU VAIDYAN, KOMALEZHATHU, KANNAMANGALAM VILLAGE, WARD NO.11, HOUSE NO.472, CHETTIKULANGARA P.O., MAVELIKKARA (EXPIRED).

2 REMAYAMMA @ MONY S/O.KOCHUKUNJU VAIDYAN, KOMALEZHATHU, KANNAMANGALAM VILLAGE, WARD NO.11, HOUSE NO.472, CHETTIKULANGARA P.O., MAVELIKKARA (ADDL. D2).

BY ADV SRI.BASANT BALAJI THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON

07.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Dated this the 07^th day of September, 2021 The petitioner is the plaintiff in O.S.No.406 of 2012 pending on the files of the Sub court, Karunagappally. The suit is filed seeking return of the advance amount of Rs.11,53,000/- with 12% interest from the defendant, charged upon all his assets, including the plaint schedule property. The suit was posted on 04.07.2013 for payment of balance court fee, but the court fee was not remitted. Again, on 13.06.2014, the court directed payment of balance court fee before the next posting date and posted the case to 27.06.2014 for verification. The petitioner was failed to remit the balance court fee within the time granted, the plaint was rejected. Immediately, petitioner paid the balance court fee and filed I.A.No.794 of 2014 for review of the order rejecting the plaint. By the impugned Ext.P7 order, the court below allowed the review application, subject to the petitioner remitting cost of Rs.25,000/-. The petitioner remitted the cost and the suit has been restored to file. This original petition is filed, aggrieved by the exorbitant amount imposed as cost and an observation in the order, touching upon the merits of the petitioner's case.

2. Learned Counsel for the petitioner contended that the trial court was not imposing an exorbitant amount of Rs.25,000/- as costs. It is contended that, though there was a direction on 04.07.2013 to pay balance court fees, there was no such insistence on the subsequent posting dates and the subsequent direction was only on 13.06.2014. Even though the petitioner failed to remit court fees within the time granted on that date, the payment was effected immediately thereafter and an application filed for review of the order. At any rate, the observation in paragraph 14 of the impugned order was uncalled for and illegal.

3. Learned Counsel for the respondent contended that, even without the court specifying any date, the petitioner was bound to pay the balance court fee. Having failed to remit the court fee even after repeated directions by the trial court, it is open for the petitioner to challenge the order imposing costs.

4. Having heard the learned Counsel on either side and having gone through the order impugned, I find that the learned Sub Judge has made it clear that, in the event of the suit being decreed in favour of the plaintiff, the cost will be adjusted towards the decree debt. In the light of that safeguard and the petitioner having remitted the cost as directed, I am not inclined to interfere with the direction. At the same time, I find substantial merit in the contention of the learned Counsel for the petitioner that the observation in paragraph 14 of the judgment was unwarranted and would prejudice the petitioner in the contest of the suit. The objectionable observation is extracted hereunder for easy reference;

“14....... So this petition is allowed on cost, specifying that in the final stage, defendants can very well rely upon the factum of non-payment of court fee for a period of about one year, to contend that the plaintiff is a person who was not able to raise the balance sale consideration