The exercise of judicial discretion in granting time to pay the deficit court fee and the appellate court's jurisdiction to consider the legality of the trial court's order under Section 149 of the Code of Civil Procedure.

1. This second appeal is focussed by the defendant, animadverting upon the judgment and decree dated 26.04.2010 passed by the learned Subordinate Judge, Perambalur in A.S.No.20 of 2009 confirming the judgment and decree dated 25.03.2009 passed by the learned District Munsif, Perambalur in O.S.No.229 of 2004.

2. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.

3. Heard both sides.

4. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus:

a] The narration of brief facts as found set out in the plaint would be to the effect that the defendant borrowed totally a sum of Rs.75,000/-; whereupon a demand suit promissory note was executed; since there was default in repaying the debt, the suit was filed. Written statement was filed resisting the claim. Whereupon, the trial court framed the issues and ultimately decreed the suit.

b] Being aggrieved by and dissatisfied with the judgment and decree of the trial court, appeal was filed on various grounds including the one relating to limitation. The appellate court dismissed the appeal confirming the judgment and decree of the lower court.

c] Challenging and impugning the same, this second appeal has been filed on various grounds, inter alia thus:

(i) The appellate court even though referred to various judgments of the High Courts as well as the Honble Apex Court failed to take into consideration the relevant fact that the defendant had the right to raise as an appellant before the first appellate court for the first time the limitation point relating to presentation of the plaint.

(ii) The lower appellate court was wrong in simply observing that since no revision was filed as against the order passed by the trial court under Section 149 of the Code of Civil Procedure, no such plea relating to limitation could be raised before the Appellate court.

5. On hearing both sides I formulated the following substantial question of law: "Whether the first appellate court was justified in holding that since no revision was filed as against the order passed by the trial court under Section 149 of the Code of Civil Procedure, the appellant could not raise it for the first time in the appeal?"

6. The learned counsel for the defendant would reiterate the aforesaid grounds found set out in the second appeal and also place reliance on the judgment of the Division Bench of this court reported in 2003(2) MLJ 305 (K.Natarajan vs. P.K.Rajasekaran).

7. Whereas in an attempt to torpedo and pulverise the argument as put forth on the side of the defendant/appellant, the learned counsel for the plaintiffs/respondents would invite the attention of this court to the Honble Apex Courts judgment reported in 2009(4) CTC 187 (SC) (P.K.Palanisamy vs. N.Arumugham and another) as well as the following judgments: 1. AIR 1968 Delhi 183 (Custodian of Evacuee Property, New Delhi vs. Rameshwar Dayal and others). An excerpt from it would run thus: "

8. On the facts and circumstances of the present case, when the deficient amount of court-fee to be affixed on the copy of the order appealed from what was actually attached with the application under Section 149, Code of Civil Procedure, in my opinion, it would have been a more appropriate and more satisfactory exercise of judicial discretion to allow the deficiency to be made good so that the controversy was heard on the merits rather than to throw out the appeal on this ground..........."

2. MLJ Reports Vol.XIX Part XIV page 340 Full Bench (Gavaranga Sahu vs. Botokrishna Patro and others) in support of his argument. An excerpt from it would run thus: "To hold with Shephaard, J., that an insufficiently stamped plaint being ab initio void cannot be validated seems to me, with great deference, to be running counter to S.28 of the Court Fees Act and to S.54(b) of the Code of Civil Procedure. In neither case, as I read these