MARTIN Vs. PRASANNAM

JUDGEMENT

(1.) The Division Bench has doubted the correctness of Jamal Vs. Mohammedkutty (2003 (3) KLT 803) and hence the reference of the Regular First Appeal to the Full Bench.

(2.) The suit for specific performance of a contract was decreed in part by the court below granting the alternative relief of return of 90% of the amount paid as advance by the plaintiff to the defendants. The plaintiff has filed the Regular First Appeal contending that a decree for specific performance ought to have been passed and that there is no rationale in limiting the amount to 90% of the advance. The appellant had paid one-third of the fee payable in the appeal at the time of its preferment and should have paid the balance fee within 15 days from the date of its admission. Such deferred payment of fee is permissible under Sec. 52 of the Kerala Court Fees and Suit Valuation Act, 1959 ['the Act' for short] and the relevant part is as follows:-

(3.) The Division Bench noticed that the appellant had not paid the balance fee payable in the appeal when it was listed on 22.2016 even though the same was admitted as early as on 12.11.2015. The appellant thereupon sought for rejection of the appeal for non payment of the balance fee and for refund of the one-third fee already paid relying on the dictum in Jamal's case (supra). It was held therein as follows:-