Divakaran vs Raghunandhanan
2021 Latest Caselaw 1323 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

            THE HONOURABLE MR. JUSTICE A.HARIPRASAD

                                  &

          THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942

                        RFA.No.137 OF 2020

AGAINST THE JUDGMENT DATED 12-03-2019        IN   OS   23/2018   OF
PRINCIPAL SUB COURT,IRINJALAKUDA.



APPELLANTS/PLAINTIFFS      :

      1       DIVAKARAN, AGED 55 YEARS,
              S/O. VETTIYATTIL VEETIL APPUNNY,
              MOONNUMURI DESOM AND P O MATTATHOOR VILLAGE,
              CHALAKKUDY TALUK, THRISSUR DISTRICT - 680 684.

      2       MINI DIVAKARAN, AGED 47 YEARS,
              W/O. VETTIYATTIL VEETIL DIVAKARAN,
              MOONNUMURI DESOM AND P O MATTATHOOR VILLAGE,
              CHALAKKUDY TALUK, THRISSUR DISTRICT - 680 684.

              BY ADVS.SRI.S.VINOD BHAT &
              KUM.ANAGHA LAKSHMY RAMAN


RESPONDENT/DEFENDANT      :

              RAGHUNANDHANAN, AGED 55 YEARS,
              S/O. KOOTTALIL VEETTIL, ARAVINDHAKSHAN NAIR,
              ANNAMANNADA DESOM AND P O, KALLUR THEKKUMURI
              VILLAGE, CHALAKKUDY TALUK,
              THRISSUR DISTRICT-680741.

              R1 BY ADV. SRI.N.L.BITTO

     THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION
ON 13.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 R.F.A No.137 of 2020                   2




                   A.HARIPRASAD & P.V.KUNHIKRISHNAN, J J.

                   --------------------------------------
                            R.F.A No.137 of 2020
                   --------------------------------------
                    Dated this the 13th day of January, 2021


                               JUDGMENT

A.Hariprasad, J ,

Heard the learned counsel for the appellants and respondent.

2. The appellants are aggrieved by the order passed by the

Principal Sub Judge, Irinjalakkuda on I.A No.1277 of 2019 in O.S No.23 of

2018. Appellants are the plaintiffs in the above suit. Their plaint was

rejected under Order VII Rule 11(c) of C.P.C for non-payment of balance

court fee. Appellant filed the above I.A No.1277 of 2019 for review of the

rejection of the plaint.

3. Respondent's counsel pointed out that even at that time no

court fee was paid. However, the court below, by the impugned order,

dismissed the review petition finding that there was no error apparent on

the face of the record.

4. Learned counsel for the appellants pointed out that the suit is

one for recovery of money to a tune of Rs.1,17,00,000/-. The appellants did

not pay the balance court fee since there there was a mediation proposal to

solve the dispute between the parties.

5. Learned counsel for the respondent submitted that there was

no effective mediation.

6. However, having regards to the facts and circumstances, we

are of the view that a meritorious claim shall not be thrown out at the

threshold on technicalities.

Therefore, we set aside the judgment and decree of rejection

of plaint passed in the above suit. The plaintiffs/appellants, if able to raise

money for the court fee payable, shall pay it within a period of fourteen

days. If not, they may move the court with appropriate application under

Order 33 of C.P.C.

Learned counsel for the appellants pointed out that there was

an order of attachment passed by the court below on I.A No.291 of 2018 in

O.S No.23 of 2018 and that was lifted when the plaint was rejected. The

order of rejection was on 12-03-2019. We do not know whether the

property has been alienated thereafter. If the respondent has not alienated

the attachment schedule property, then he shall not alienate it until the

petitioners approach the court below for appropriate orders under Order

XXXVIII Rule 5 of C.P.C.

A. HARIPRASAD, JUDGE.

P.V.KUNHIKRISHNAN, JUDGE amk