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2021 Supreme(Online)(Ker) 44707
IN THE HIGH COURT OF KERALA
ANIL K. NARENDRAN, K. Babu, JJ
Maya Rani – Appellant
Versus
Aboobacker Siddique – Respondent
R.F.A. No.104 of 2021
For the Appellants/Petitioners: Jolly John
For the Respondents: T. Asafali, T.Y. Laliza
In appeals against rejection of plaint for non-payment of court fees, plaintiffs must pay a fixed fee only, and rejection does not bar them from filing a fresh plaint on the same cause of action.
Headnote:(A) Civil Procedure Code, 1908 - Order VII Rule 11 and Order XLI Rule 1 - Court Fees and Suits Valuation Act, 1959 (Kerala) - Sections 4A, 52 & Schedule II Article 3(iii)(A)(1)(a) - Rejection of plaint due to non-payment of balance court fee - court clarified that in appeals against rejection of plaint, plaintiffs only need to pay fixed court fee of Rs.25/- - Court found that lack of adjudication on merits allows for the presentation of a fresh plaint as per Order VII Rule 13. (Paras 20-21)
Facts of the case:
Plaintiffs filed a suit for cancellation of certain documents and for injunction, having initially paid one-tenth of the required court fee due to financial constraints caused by medical expenses for their family members. The plaint was rejected for failing to remit the balance court fee in a timely manner.
Findings of Court:
The court determined that the rejection of the plaint constituted a deemed decree without merits being adjudicated, allowing an opportunity for a fresh plaint. The court emphasized that the court fees already paid must be refunded per Section 66 of the Act.
Issues: The court addressed whether the plaintiffs could be granted time to pay the balance court fee after the rejection of the plaint for that reason.
Ratio Decidendi: The court ruled that the proper course in appeals involving the rejection of plaint for non-payment of balance court fees only involved fixed fees and did not prevent filing a new plaint.
Result: The appeal was allowed, restoring the suit with an order to pay the balance court fee within two weeks.
| Table of Content |
|---|
| 1. plaint’s rejection details and context. (Para 1 , 5 , 30) |
| 2. arguments regarding court fee sufficiency. (Para 6 , 17) |
| 3. legal principles on rejection of plaints. (Para 11 , 13 , 16) |
| 4. court's decision for extension on court fee. (Para 20 , 28) |
| 5. final decision to restore plaint. (Para 32) |
JUDGMENT
Anil K. Narendran, J.
The appellants are the plaintiffs in O.S.No.18 of 2018 on the file of the Sub Court, Chengannur, a suit filed for cancellation of a power of attorney allegedly created by the respondent herein-defendant, appointing the 2nd plaintiff as the power of attorney holder of the 1st plaintiff for cancellation of release deed No.4369/2005 and sale deed No.4371/2015 of the Sub Registrar Office, Alappuzha; and for a permanent prohibitory injunction. The suit was instituted by paying one-tenth of the court fee, as provided under Section 4A of the Kerala Courts Fees and Suits Valuation Act, 1959. On receipt of notice in the suit the defendant entered appearance and filed written statement, along with counter claim. On 09.07.2019, the suit was posted for remitting the balance court fee. On that day, there was no representation for the plaintiffs and the balance court fee was also not paid. Therefore, the Sub Court rejected the plaint for non-payment of the balance court fee, by the judgment dated 09.07.2017. Seeking review of that judgment the plaintiffs filed I.A.No.286 of 2019, invoking the provisions under Order XLVII Rule 1 of the Code of Civil Procedure, 1908, along with I.A.No.285 of 2019 seeking condonation of delay of 24 days in filing the application for review. Those interlocutory applications were rejected by a common order dated 30.09.2019. Thereafter, the plaintiffs filed R.P.No.3 of 2020 in O.S.No.18 of 2018 under Order XLVII Rule 1 of the Code seeking review of the said order, along with I.A.No.1 of 2020 seeking an order to condone the delay of 457 days in filing that review petition. R.P.No.3 of 2020 and also I.A.No.1 of 2020 were dismissed by a common order dated 23.02.2021 of the Sub Court. Thereafter, the plaintiffs filed this appeal, invoking the provisions under Order XLI, Rule 1, read with Section 96 of the Code, challenging the judgment of the Sub Court dated 09.07.2019, whereby the plaint in O.S.No.18 of 2018 was rejected for non-payment of the balance court fee and also on account of no representation for the plaintiffs.
2. On 09.07.2021 in C.M. Application No.1 of 2021 filed in this appeal for condonation of delay, this Court issued urgent notice by speed post to respondent-defendant, returnable within three weeks. On 30.07.2021, the respondent entered appearance through counsel and sought time to re-present the counter affidavit, after curing the defects. Both sides have filed interlocutory applications, invoking the provisions under Order XLI, Rule 27 of the Code to accept additional documents. The plaintiffs have filed reply affidavit dated 06.09.2021, which was followed by an additional counter affidavit filed by the defendant. The learned counsel for the appellants-plaintiffs have also submitted a written submission.
3. Today, by a separate order in C.M.Appln.No.1 of 2021, we have condoned the delay of 159 days in filing this appeal. The learned counsel on both sides agreed that this appeal can be finally heard in the admission stage.
4. Heard the learned counsel for the appellants-plaintiffs and also the learned counsel for the respondent-defendant.
5. The appellants-plaintiffs filed O.S.No.18 of 2018 before the Sub Court, Chengannur, on 18.12.2018. They filed O.S.No.18 of 2018 paying one-tenth of the court fee, under Section 4A of the Kerala Court Fees and Suit Valuation Act, 1959. According to the appellants, at the time of filing the suit, the 1st appellant, who is the mother of the 2nd appellant, was undergoing treatment for breast cancer and for renal failure, as evidenced by Annexures A3 and A4 medical records. They were in acute financial crunch since the 1st appellant was und
