BEENA Vs. KESAVAN

JUDGEMENT

(1.) The plaint has been rejected for non payment of the balance court fee in a suit for specific performance by the judgment impugned in this Regular First Appeal. Only a nominal court foe of Rs.25/ - presumably under Schedule II Art. 3(iii)(A)(1) of the Kerala Court Fees and Suits valuation Act, 1959 ('the Act' for short) is seen paid. A doubt was raised as to whether the appellant is obliged to pay the same fee as would be payable in the court of the first instance under Sec. 52 of tho Act. The appellant thereupon relied on the decision in Thanappan Vs. Hassan Kappor (2003 (2) KLT 39) and the relevant part of it reads as follows: -

(2.) It is beyond dispute that the definition of a decree under Sec. 2(2) of the Code of Civil Procedure, 1908 ( 'CPC ' for short) includes also the rejection of a plaint. The Act does not make any difference between an adjudicated decree and a non -adjudicated decree in the matter of filing an appeal under Sec. 52 thereof, two courses are open when a plaint is rejected for non -payment of balance court fee in that the plaintiff can either file a Regular First Appeal or apply for Review. The plaintiff has necessarily to pay one -half of the fee payable on the plaint in an application for review of the judgment under Schedule I Art. 5 of the Act. Can tho plaintiff be permitted to maintain a Regular First Appeal instead of a petition for Review after paying a nominal court fee as in the instant case ?

(3.) We heard Mr. N.M. Madhu, Advocate on behalf of the appellant and also Mr. Jayesh Mohankumar, Advocate as amicus curiae at length on the maintainability of the appeal.