M.Abdul Khader vs Faizal
2021 Latest Caselaw 11028 Ker

Citation : 2021 Latest Caselaw 11028 Ker
Judgement Date : 7 April, 2021

Kerala High Court

M.Abdul Khader vs Faizal on 7 April, 2021

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

         THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

 WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA,
                          1943

                   RSA.No.242 OF 2021

        AS 38/2020 OF DISTRICT COURT, ALAPPUZHA

           OS 11/2015 OF SUB COURT, CHERTHALA


APPELLANT/APPELLANT/DEFENDANT:

           M.ABDUL KHADER
           AGED 65 YEARS
           S/O.MUHAMMED, RESIDING AT NAIMANAM PARAMBIL
           HOUSE, NETTOOR P.O., NETTOOR DESOM, MARADU
           VILLAGE, NOW RESIDING AT HOUSE NO.KP1/80,
           KODAMTHURUTHU PANCHAYAT, KODAMTHURUTHU MURI,
           CHERTHALA TALUK, ALAPPUZHA DISTRICT.

           BY ADVS.
           SRI.T.MADHU
           SRI.B.S.SURAJ KRISHNA
           SMT.C.R.SARADAMANI

RESPONDENT/RESPONDENT/PLAINTIFF:

           FAIZAL
           AGED 41 YEARS, S/O.ASHRAF, RESIDING AT
           MATATHIPARAMBIL HOUSE, SRM ROAD, KALOOR,
           ERNAKULAM VILLAGE, KANAYANNOOR TALUK,
           ERNAKULAM DISTRICT 682 018.


     THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 07.04.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 RSA.No.242 OF 2021

                                  ..2..



                                JUDGMENT

of 2015 on the files of the Sub Court,

Cherthala (hereinafter referred to as, "the

trial court"). The above suit was filed by the

plaintiff seeking a decree of specific

performance of agreement for sale or in the

alternative for recovery of a sum of

Rs.5,00,000/-, being the advance sale

consideration with interest from the

defendant. The trial court decreed the suit

allowing the decree for specific performance

of the agreement for sale. Challenging the

judgment and decree, the defendant preferred

an appeal as AS No. 38 of 2020 before the

District Court, Alappuzha (hereinafter

referred to as, "the first appellate court").

2. According to the learned counsel for the

appellant, the total court fee payable in the RSA.No.242 OF 2021

..3..

above appeal was Rs.1,54,400/- and the total

legal benefit fund payable was Rs.17,000/-.

Along with the appeal, 1/3rd court fee of

Rs.51,467/- and 1/10th legal benefit fund of

Rs.1,700/- were paid. The balance court fee

payable was Rs.1,02,933/- and the balance

legal benefit fund payable was Rs.15,300/-.

The defendant filed IA No. 3 of 2020 before

the first appellate court seeking extension of

time for paying the balance court fee. The

above petition was allowed and the time was

extended till 14.10.2020. However, the said

appeal was rejected on 14.10.2020 for

nonpayment of balance court fee. Hence, this

Regular Second Appeal is filed.

3. After having heard the learned counsel for the

appellants, this Court admitted the appeal on

08.03.2021 on the following substantial

questions of law;

"(1) Whether the first appellate court is justified in dismissing the appeal for RSA.No.242 OF 2021

..4..

nonpayment of balance court fee on technical grounds?

(2) Whether the first appellate court went wrong in rejecting the appeal for non-payment of balance court fee as on 24.08.202, when the time for paying the balance court fee was extended up to 14.10.2020?"

4. Service is complete.

5. The learned counsel for the appellant

contended that due to the outbreak of Covid-19

and the consequent pandemic situation, the

appellant/defendant could not raise the

requisite amount for paying the balance court

fee before the first appellate court. It

happened for the above reason and not for any

willful laches on the part of the defendant;

it has been submitted.

6. In view of the outbreak of Covid-19 pandemic

and the consequent financial difficulties