HIGH COURT OF KERALA
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(1.) This appeal arises from the order in O.S. No. 69/2001 of the Sub Court, Kozhikode in rejecting the plaint that the balance court fee has not been paid. The court fee payable was Rs. 45,685/-, but 1/3rd of the court fee has been paid, the balance amount could not be paid. Hence the plaint was rejected and this appeal memorandum was filed. In Para.3 of the appeal memorandum it is stated as follows: -
"The plaintiffs could not remit the balance court fee on the last date i.e. on 7.6.2002 as permitted by court. In fact the advocate clerk in the office of the counsel of the plaintiffs informed the father inlaw of the first plaintiff through telephone that the last date for remitting the balance court fee is 7.6.2002 in the above suit. Since 1st plaintiffs father inlaw alone was present in the house of the plaintiffs when the advocates clerk informed the same, Plaintiffs father inlaw agreed that he will inform the matter to the plaintiffs. However 1st plaintiffs father inlaw failed to inform the plaintiffs the matter. Affidavit of the father inlaw of the plaintiff was also produced."
In the appeal memorandum we issued notice to the respondents and they entered appearance.
(2.) Plaintiffs aggrieved by the order passed by the court below has preferred this appeal under S.96 and O.41, R.1 of the Code of Civil Procedure. It is submitted that the court fee payable by the appellants / plaintiffs was Rs. 45,685/-. Counsel for the appellants submits that the balance court fee could not be remitted in time due to the reasons stated above. Counsel submitted plaintiffs may be given some time to pay the entire court fee to maintain the suit.
(3.) Counsel further submits that as per S.67 of the Court Fees Act relating to refund in cases of remand, where a suit is remanded in appeal for a fresh decision by the lower court, the court making the order or remanding the appeal might direct the refund of the full amount of fee paid on the memorandum of appeal. Appellants are therefore entitled to get the court fee paid in the appeal memorandum. Since we are directing restoration of the plaint and not deciding any issue on merits, the appellants are entitled to refund of the entire court fee. In such circumstances, we are inclined to direct the court below to restore the plaint on file after the remittance of balance court fee by the plaintiffs. Request made by the appellants for refund of the court fee in the appeal memorandum is granted. Registry is directed to take necessary steps to refund the court fee paid by the appellants in the appeal memorandum immediately. The court below is also directed to dispose of the plaint within two months on the plaintiff remitting the balance court fee.
The appeal is allowed as above.;
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