A suit for specific performance was dismissed by the trial court with costs. The plaintiff went up in appeal as A.S.No. 225/2012 before the District Court, Ernakulam. The appeal was admitted and that required the appellant to pay the balance court fee. Even after the period stipulated in the Kerala Court Fees and Suits Valuation Act and further opportunities given, the balance court fee was not paid. There was no representation when the case was taken up. Consequently, by judgment dated 05.03.2013, the appeal was rejected. That brings the plaintiff before this Court.
2. This Court ordered notice to the respondents.
Notice has been served on respondents 2 to 4 and 7. Notice to respondents 5 and 6 returned stating that they are out of India. The learned counsel for the appellant pointed out that they had been set exparte before the courts below and they are not interested in the matter. Therefore, it may not be necessary to take further steps as against them. Respondents 3 and 4 are represented by a counsel.
3. After having given anxious consideration to various aspects, though the laches on the part of the appellant cannot be easily overlooked, the fact remains that the lower appellate court being the final court on facts, an opportunity ought to be given to the appellant to raise his contentions before the lower appellate court.
4. It is difficult to believe that after having lost a suit for specific performance in the trial court, the appellant would have deliberately omitted to pay the balance court fee. Whatever that be, in the interest of justice, the appellant be given an opportunity to pay the balance court fee and have the appeal heard on merit.
For the above reason, this appeal is allowed. The impugned judgment and decree are set aside. The matter is remanded to the lower appellate court. The appellant shall pay the balance court fee within a period of two weeks from today. After the said court fee is remitted, the appeal shall be taken on file and disposed of in accordance with law after issuing notice to the respondents concerned, if not already issued.
ds //True Copy// P.A. To Judge Sd/-
P.BHAVADASAN JUDGE