Kerala High Court
Vijayanatha Kurup vs Bindu on 22 January, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:5544
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
WEDNESDAY, THE 22ND DAY OF JANUARY 2025 / 2ND MAGHA, 1946
RFA NO. 303 OF 2023
AGAINST THE JUDGMENT DATED 01.01.2022 IN OS NO.38 OF 2020 OF
SUB COURT, KARUNAGAPPALLY
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APPELLANT/PLAINTIFF:
VIJAYANATHA KURU,P,
AGED 77 YEARS
S/O.VASU PILLAI, THOTTATHIL HOUSE, PAYIKUZHI MURI,
OACHIRA P.O., KARUNAGAPPALLY TALUK, KOLLAM DISTRICT,
PIN - 690526.
BY ADV K.P.SREEKUMAR
RESPONDENTS/DEFENDANTS:
1 BINDU
AGED 50 YEARS
W/O.HARIKUMAR (LATE), LEKSHMI BHAVANAM, NEELIKULAM,
VAVVAKKAVU P.O., KARUNAGAPPALLY TALUK, KOLLAM DISTRICT,
PIN - 690528.
2 ASWIN,
AGED 27 YEARS,
S/O.HARIKUMAR (LATE), LEKSHMI BHAVANAM, NEELIKULAM,
VAVVAKKAVU P.O., KARUNAGAPPALLY TALUK, KOLLAM DISTRICT,
PIN - 690528.
3 NAVEEN,
AGED 17 YEARS,
(MINOR), S/O.HARIKUMAR (LATE), LEKSHMI BHAVANAM,
NEELIKULAM, VAVVAKKAVU P.O., KARUNAGAPPALLY TALUK,
KOLLAM DISTRICT, PIN - 690528.
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RFA NO. 303 OF 2023 -2-
4 SATHEESH KUMAR,
AGED 57 YEARS,
S/O.SUKUMARAKURUP, THOTTATHIL VEEDU, MEMANA MURI,
OACHIRA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT,
PIN - 690526.
5 SURESH KUMAR,
AGED 51 YEARS,
S/O.SUKUMARAKURUP, THOTTATHIL VEEDU, MEMANA MURI,
OACHIRA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT,
PIN - 690526.
6 GIREESH KUMAR
AGED 49 YEARS
S/O.SUKUMARAKURUP, THOTTATHIL VEEDU, PAYIKKUZHI MURI,
OACHIRA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT,
PIN - 690526.
7 AMBIKA KUMARI,
AGED 67 YEARS,
D/O. SUKUMARAKURUP, KAVARATTETHU VADAKKATHIL,
EREZHAVADAKKU KARA, CHETTIKULANGARA P.O., MAVELIKKARA
TALUK, ALAPPUZHA, PIN - 690106.
8 VASANTHAKUMARI,
AGED 65 YEARS,
D/O. SUKUMARAKURUP, KOLEDATHU VEEDU, VALACHAL KARA,
VALLIKUNNAM P.O., MAVELIKKARA TALUK, ALAPPUZHA
DISTRICT, PIN - 690501.
9 MOHANKUMAR
AGED 61 YEARS
S/O. SUKUMARAKURUP, KOLEDATHU VEEDU, CHANGANKULANGARA
MURI, VAVVAKKAVU P.O., OACHIRA VILLAGE, KARUNAGAPPALLY
TALUK, KOLLAM DISTRICT, PIN - 690528.
10 AMBILI,
AGED 53 YEARS,
D/O. SUKUMARAKURUP, LAVANYA, VALLIKUNNAM P.O.,
MAVELIKKARA TALUK, ALAPPUZHA DISTRICT, PIN - 690501.
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RFA NO. 303 OF 2023 -3-
11 PARVATHY
AGED 38 YEARS
W/O.GIREESH KUMAR, THOTTATHIL VEEDU, PAYIKKUZHI MURI,
OACHIRA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT,
PIN - 690526.
BY ADVS.
BHANU THILAK
S.R.PRASANTH
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
22.01.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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SATHISH NINAN &
SHOBA ANNAMMA EAPEN, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A. No.303 of 2023
= = = = = = = = = = = = = = = = = =
Dated this the 22nd day of January, 2025
J U D G M E N T
Sathish Ninan, J.
This appeal is filed by the plaintiff in a suit for
declaration and ancillary reliefs, challenging the
rejection of the plaint for non-payment of the balance
court fees.
2. We have heard the learned counsel on either
side.
3. The plaint was rejected on 01.01.2022 for non-
payment of the balance court fee. The appellant-
plaintiff filed RP No.2/2022 under Order IX Rule 9 CPC
seeking restoration of the plaint back to file. The
court held that an application under Order IX Rule 9 is
not maintainable and accordingly the application was
dismissed.
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4. We do notice that the appellant-plaintiff had
earlier filed RP No.1/2022 seeking review of the order
rejecting the plaint for non-payment of the balance
court fee. However, the said application was dismissed
by the court holding it to be not maintainable. It is
thereafter that the present application was filed
seeking restoration of the suit under Order IX Rule 9
CPC.
5. Considering the facts as above, we are of the
opinion that an opportunity could be granted to the
plaintiff-appellant to pay the balance court fee to have
the lis decided on merits. The inconvenience caused to
the respondent-defendant can be compensated by way of
costs.
Resultantly, the appeal is disposed of as
hereunder:
The order rejecting the plaint will stand set aside
and the suit will stand restored to file on the
following conditions:
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(i) The appellant-plaintiff shall pay the
balance court fee on or before 10.02.2025.
(ii) The appellant-plaintiff shall pay an
amount of ₹5,000/- as costs to the counsel
appearing for the respondent-defendant before
this Court within a period of ten days from
today.
(iii) On such payment the suit will stand
restored back to file and the court shall
proceed to dispose of the same in accordance
with law.
(iv) On failure of the appellant-plaintiff
to comply with the directions in clauses (i)
and (ii) above, the appeal will stand
dismissed.
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Parties to appear before the trial court on 10.02.2025.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
kns/-
//True Copy//
P.S. To Judge
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PETITIONER ANNEXURES
Annexure-A CERTIFIED COPY OF THE ORDER DATED 30.10.2023
IN RESTORATION PETITION NO.02/2022 IN
O.S.38/2020 ON THE FILE OF SUB COURT,
KARUNAGAPPALLY
Annexure-B CERTIFIED COPY OF THE B DIARY MAINTAINED BY
THE COURT BELOW WITH REGARD TO O.S.NO.38/2020
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