IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA.No. 468 of 2008()
1. SIVADASAN, S/O.CHULLIPARAMPIL KUTTAPPAN,
... Petitioner
Vs
1. BABY JOHN, S/O.VADAKKETHALA JOBY,
... Respondent
2. ANNIE MOL, D/O.VADAKKETHALA JOBY,
For Petitioner :SRI.RANJITH XAVIER
For Respondent : No Appearance
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :08/11/2010
O R D E R
THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ.
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CM Appl. No.1327/08 in RFA 468/08 & RFA No.468 of 2008-E
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Dated 8th November 2010
Judgment
Thottathil.B.Radhakrishnan, J.
This court, on 29.07.2008, had issued notice on
CM Appl. No.1327/08 filed seeking condonation of delay of
251 days in filing this appeal against the rejection of the
plaint. The appellant pleads that he could not pay the
balance court fee and also could not appeal in time
because his father was sick and while undergoing
treatment, he died on 02.11.2007. He says that he was
facing financial crisis and after meeting the funeral
expenses of his father, the petitioner also fell ill and was
consequentially hospitalised. He says that he had to
undergo bed rest subsequent to the hospitalisation and
thereafter, he could manage to obtain money from different
sources for payment of court fee, only by 18.05.2008. The
fact of the matter remains that only on account of non-
payment of the court fee, this matter remains here.
RFA 468/08 2
2. While we are satisfied that sufficient cause
has been shown to condone the delay, we see that the
notice issued to the respondents has been returned with
the endorsement that they have left the present address.
Obviously, that is without disclosing their further address.
Under such circumstances, notice to the respondents is
dispensed with reserving the right of the respondents to
seek re-hearing of this appeal, if so advised.
3. Insofar as the appeal is concerned, the same,
as already noted, is only against an order rejecting the
plaint for non-payment of the court fee. Among the
defendants, the first defendant remained ex parte. He is
the brother of the second defendant, who appeared before
the court below through Adv.Seby.J.Pullely. Having regard
to the totality of the facts and circumstances of the case,
we are of the view that the ends of justice would be
satisfied if the impugned order is set aside on appropriate
terms.
RFA 468/08 3
Accordingly, the following orders are passed :
(i) CM Application No.1327/08 is allowed.
(ii) The appeal is allowed.
(iii) The appellant is directed to pay the balance
court fee before the court below within three weeks
from now.
(iv) The appellant shall also pay Rs.5,000/- each to
the defendants towards costs either by paying the
same to the learned counsel for the defendants or by
depositing it before the court below. On such receipt/
deposit, if the defendants do not appear before the
court below, the court below shall issue notice to them
denovo and proceed with the matter further. The
appellant is directed to appear before the court below
on 22.11.2010.
THOTTATHIL.B.RADHAKRISHNAN,
JUDGE
P.BHAVADASAN, JUDGE
sta
RFA 468/08 4
RFA 468/08 5