AS No. 74 of 1998 · Kerala High Court

K.SURENDRA MOHAN, J.-------------------------------------------A.S.No.74 of 1998 -------------------------------------------Dated this the 29th day of May, 2009JUDGMENT1. This appeal is filed against the judgment and decree of the IIndAdditional Sub Court, Thiruvananthapuram in O.S.No.1356 of 1992. Thesuit was filed for the recovery of damages. The appellants are the plaintiffs in the suit.

At the time of filing the suit, only 1/10th of the court fee was paid. Issues were settled on 30.5.1995. Though the case was posted for payment of balance court fee to 14.6.1995 and 14.7.1995, the balance court fee was not paid. Therefore, the plaint was rejected for non-paymentof court fee under Order VII Rule 11(c) of the Code of Civil Procedure.

It is submitted by the learned counsel for the appellants that non-payment of the balance court fee was because of poverty, the plaintiffs being poor fishermen, who lead a precarious life by going out for fishing to the high seas. Subsequently, they have remitted the entire court fee that was payable and have also filed I.A.No.10717 of 1995 to receive the courtfee, condoning the delay in payment of the same and extending the time fixed for payment thereof. No orders are seen passed on the said petition. A.S.No.74/1998 2It follows that the said petition was not considered by the court below.

It cannot be disputed that legitimate claims of poor people should not be allowed to be defeated for want of financial resources to pay court fees. Provisions contained in Order XXXIII of the Code of Civil Procedurehave been enacted in recognition of the above policy. Section 148 of the Code confers power on the court to extend the time for payment of the balance court fee. Section 149 confers power on the court to make good the deficit court fee, even after the judgment is pronounced. Therefore, the court below ought to have granted the extension of time that was sought for. Especially, when the bona fides of the plaintiffs have been demonstrated by payment of the entire court fee, though after the time limit fixed for paying the same. In the interests of justice, I feel that this is a fit case in which the delay in payment of court fee can be condoned. Accordingly, I.A.No.10717 of 1995 filed for receiving the court fee isallowed. The judgment and decree under appeal are set aside and the suitis remanded to the IInd Additional Sub Court, Thiruvananthapuram for being tried and disposed of in accordance with law, on the merits. Since the matter is old, the court below shall take every effort to have the same disposed of on an early date, giving priority to the same. The parties shall appear without further notice before the IInd Additional Sub Court, A.S.No.74/1998 3Thiruvananthapuram on 3.8.2009 and shall co-operate for an expeditious trial and disposal of the suit. The appeal is allowed as above. No costs. K.SURENDRAMOHANJudgecss/ A.S.No.74/1998 4K.SURENDRA MOHAN, J.--------------------------------------- A.S.No.74 of 1998--------------------------------------- JUDGMENT 29.5.2009