Appellate Court May Reject, Not Dismiss An Appeal For Non-Payment Of Court Fee: Kerala High Court
The Kerala High Court has held that an appellate court may only reject and not dismiss an appeal for non-payment of court fee by the party.A single judge bench of Justice Badharudeen was dealing with a second appeal, filed as a consequence of first appellate court's order dismissing the appeal as “balance court fee not paid". The Court said,"The proper procedure to strike down an appeal due...
The Kerala High Court has held that an appellate court may only reject and not dismiss an appeal for non-payment of court fee by the party.
A single judge bench of Justice Badharudeen was dealing with a second appeal, filed as a consequence of first appellate court's order dismissing the appeal as “balance court fee not paid". The Court said,
"The proper procedure to strike down an appeal due to failure on the part of the appellant to pay balance court fee is rejection of the appeal and the said rejection of appeal is decree, as defined under Section 2(2) of CPC."
To arrive at this conclusion, the bench referred to Order XLI which deals with 'Appeals from original decrees'.
It noted that none of the provisions therein directly deal with the procedure to be followed when the appellant fails to pay balance court fee. It then referred to Section 107(2) of CPC which confers on an appellate court nearly same duties as are conferred on Courts of original jurisdiction.
Now as per Order 7 Rule 11(c), consequence of failure to pay the balance court fee is rejection of the plaint. Taking cue from this provision, the High Court held,
"the appellate court has the power to reject an appeal for non-payment of balance court fee, as provided under Order VII Rule 11 (c) read with Section 107(2) of CPC and the proper procedure to strike down an appeal due to failure on the part of the appellant to pay balance court fee is rejection of the appeal and the said rejection of appeal is decree, as defined under Section 2(2) of CPC. Thus, it is found that the appellate court erred in not following the procedure laid down in Order VII Rule 11(c) read with Section 107(2) of CPC, while disposing the first appeal. Therefore, the order passed by the appellate court, dismissing the appeal for non-payment of court fee, is not justifiable."
Since the defendant had paid the balance court fee, High Court said an opportunity shall be given to the defendant to agitate the matter on merits before the appellate court.
Counsel for Petitioner: Advocate VA Vinod
Counsel for Respondent: Advocates Praveen Joy, TA Joy, ES Saneej, MP Unnikrishnan, N Abhilash, Deepu Rajagopal, Ardra Anil, Albin Varghese, Abisha ER, Fathima Shalu, Anupama Nair and Adithya Lal
Citation: 2024 LiveLaw Ker (11)
Case Title: Baby v. Chandramathy
Case Number: RSA No. 632 of 2023.