SHAJAHAN Vs. KAMALA NARAYANAN

JUDGEMENT

(1.) Has the Court power or jurisdiction to extend the time for payment of 9/10th Court fee payable under S.4A of the Kerala Court Fees and Suits Valuation Act (for short 'the Act') beyond the period of 30 days provided under the proviso to that section even if there are sufficient reasons for nonpayment of court fee within that time is the point referred for decision by the Division Bench in that case. A similar question regarding the power and jurisdiction of this Court and appellate courts in general under S.52 of the Act to extend the time for payment of 2/3rd of the Court fee required to be paid at the time of admission of the appeal has come up for consideration before a Division Bench of this Court on a reference in Elizabeth v. Francis ( 1991 (2) KLT 779 ). The Division Bench has answered the reference by holding that this Court has power to extend the time beyond 30 days mentioned in the second proviso to S.52 of the Act taking note of the very wide powers granted to the Court under S.148 and 149 of the Code of Civil Procedure, especially S.149, in the matter of extending time fixed by the Court for payment of the required Court fee.

(2.) In the reference order in this case, the learned Judge has taken the view that the decision in Elizabeth's case (supra) requires reconsideration. The main reason indicated by the learned Judge for doubting the correctness of the decision in Elizabeth's case (supra) and taking a view in the matter contrary to that taken by the Division Bench in the above case is that the provisions in S.4A and 52 of the Act are provisions really extending a concession to the litigant coupled with the obligation to make up the balance Court fee within the time stipulated in the respective Sections itself and no litigant can claim that he will take advantage of that limb of the provision which is to his advantage and will refuse to abide by the limb that is to his detriment or which is not to his advantage. In the light of the reference made, we have to consider once again the question as to what the court should do when a suitor asks for extension of time for payment of balance Court fee in view of the provisions in S.4A, the scheme of which is more or less similar to the scheme of S.52, though the earlier Division Bench has hopefully expected that their 'pronouncement may set at rest' that question.

(3.) The question referred may have to be decided with reference to S.4A of the Act and S.148 and 149 and O.7 R.11 CPC, which are thus: