ABDUL NOUSHAD Vs. HELEN

JUDGEMENT

(1.) The suit in O.S. No. 74/2012 on the file of the Court of the Subordinate Judge of Ottappalam is one for specific performance of Ext. AI agreement for sale of the property. It is the case of the plaintiff that a sum of Rs. 1,00,000.00 was paid as advance out of the total sale consideration of Rs. 14,00,000.00 to the defendant on the date of the agreement. The suit is essentially for specific performance to have the sale deed executed even though there is an alternative prayer for return of the amount paid as advance. The court below has dismissed the suit on the ground of limitation and also for the reason that the plaintiff was not ready and willing to perform his part of the contract.

(2.) The court fee was computed on the amount of the sale consideration as is warranted under Sec. 42(a) of the Kerala Court Fees and Suits Valuation Act, 1959 (the 'Act' for short). The court fee payable in the Regular First Appeal at the instance of the plaintiff shall be the same as that shown in the suit on the subject matter as per Sec. 52 of the Act. One-third of the court fee payable to the tune of Rs. 43,467/- was remitted at the time of admission of the Regular First Appeal and the case stood posted for payment of the balance court fee. The plaintiff/appellant has now filed I.A. No. 2071 /2016 seeking a declaration that the balance two-third of the court fee is not payable. The reason put forth is that the appellant is relinquishing his claim for specific performance and limiting his relief for the recovery of the amount paid as advance with interest. The appellant adopts the stand that one-third of the court fee already paid would suffice for the claim for return of the amount paid as advance with interest.

(3.) Explanation (4) to Sec. 52 of the Act is relied on to contend that the appellant need pay court fee only on the relief refused by the trial court which reads as follows: