Aggrieved by the judgment and decree dated 29.09.2008 passed by the Subordinate Judge, Tiruchengode, in A.S. No. 70 of 2008 wherein and by which the judgment and decree dated 18.08.2005 passed by the District Munsif, Tiruchengode, in a suit for recovery in O.S. No. 217 of 2004 were reversed allowing the First Appeal at the instance of the defendant, the plaintiff has preferred the instant Second Appeal.

2. The relevant facts necessary for 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 a sum of Rs.45,000/- agreeing to repay with interest at the rate of Rs.1.50/- on demand and executed Ex. A.1 suit promissory note dated 07.9.1997. Since there was default in repaying the debt, the plaintiff issued pre-suit notice Ex. A.2 dated 15.02.2000 for which the defendant replied with false allegations on 04.3.2000. Hence, the suit was filed.

(b) Written statement was filed resisting the claim.

(c) Whereupon, the trial court framed the issues and ultimately decreed the suit.

(d) Being aggrieved by and dissatisfied with the judgment and decree of the trial court, appeal was filed by the defendant on various grounds including the one relating to limitation. The First Appellate Court, viz., Learned Subordinate Judge, Tiruchengode, while upholding the liability of the plaintiff, observed that the plaintiff has paid the Court Fee with a delay of nearly four months and further, has also not filed an application as per Section 149 of the Code of Civil Procedure to condone the delay and accordingly, allowed the appeal reversing the judgment and decree of the trial court.

(e) Challenging and impugning the same, this second appeal has been filed by the plaintiff.

3. At the time of admission of this Appeal, the following substantial questions of law were formulated for consideration:-

(a) Whether the suit in O.S. No. 217 of 2004 is barred by limitation for having failed to file an application by the plaintiff u/s 149 of CPC?

(b) Whether the Lower Appellate Court is right in holding that the defendant can raise the objections even in the appeal stage in respect of delay in paying the deficit Court fee?

4. Heard Mr. C. Kulanthaivel, learned counsel appearing for the appellant / plaintiff and Mr. T.L. Thirumalaisamy, learned counsel for the respondent / defendant and perused the records.

5. Both the Courts below, on appreciation of the evidence and the documents placed thereon, while concurrently holding the liability of the defendant, have expressed divergent opinions on payment of deficit Court fee. Therefore, the points to be considered by this Court are whether the findings of the Courts below with regard to deficit Court are based on evidence and can the Court exercise the power to hold that the appellant is entitled to condonation of delay for non-payment of Court fee.

6. Learned counsel for the appellant / plaintiff urges before this Court that when the appellant / plaintiff has paid the deficit Court fee and has complied with the directions of the trial Court in time and re-presented the plaint, then, it is not open for the Lower Appellate Court to reject the plaint by observing that application/petition under Section 149 of the Code of Civil Procedure has not been filed and that too, when the trial Court has exercised its discretionary power as per Section 149 of the Code of Civil Procedure.

7. Per contra, learned counsel for the respondent / defendant submitted before this Court that since the plaintiff had failed to pay sufficient Court fee, it is mandatory that he should have taken out an application under Section 149 CPC. He further submitted that the Lower Appellate Court had gone into the said aspect and rightly dismissed the suit and according to him, the same requires no interference.

8. Before going into the issue involved, it would be relevant to refer to the provisions of Sections 148 and 149 of the Code of Civil